• It is not an uncommon scenario for a person to refuse to engage with an assessment of their capacity. But what is the legal position when this happens and practically, what should professionals do?

    In this session Dr Mike Layton (Consultant Psychiatrist) and Emma Sutton KC from Serjeants’ Inn Chambers considered:

    • key guidance from the case law;
    • the presumption of capacity and when might it not be appropriate to rely upon it?
    • distinguishing between a lack of engagement and a lack of capacity;
    • can you rely upon collateral information?
    • real-life case studies; and 
    • practical tips and suggestions.

    Dr Layton is regularly appointed as an independent expert in the Court of Protection to provide reports on diagnosis and capacity.

    Emma Sutton KC specialises in mental capacity, mental health and human rights. Emma also sits as a Judge in the First Tier Tribunal Health, Education and Social Care Chamber on mental health matters. 

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