This case concerned a 34-year-old woman, PG, who had a diagnosis of intellectual disability (in the moderate range) and autism spectrum disorder. She had also been diagnosed with “trauma-based mental illness with Emotionally Unstable Personality Disorder (‘EUPD’)” traits (impulsivity, suicidal thoughts, and emotional instability) and mild learning disability. The Local Authority (“LA”) had social services responsibility for PG and the Integrated Care Board (“ICB”) had joint funding responsibilities with the council, under s.117 of the Mental Health Act 1983 (“MHA”). PG was currently in receipt of 2:1 support for 15 hours per day and 1:1 support for 9 hours at night.
The issue before the court related to PG’s capacity. The parties agreed that PG lacked capacity in the following respects: to conduct the proceedings, to enter into an occupancy agreement, and to make decisions about where she should live. PG was residing at a supported living house where she had lived since August 2022. The parties disagreed about whether PG has capacity in respect of decisions about her care, including when she was at her home, in the community, and at times of heightened anxiety. They also disagreed as to whether she had capacity in relation to her contact with others, including at times of heightened anxiety.
Among a wide range of incidents that raised the LA’s concerns about PG, the court noted that PG often spent time in the community, where she was becoming frequently intoxicated and abusing drugs. Multiple incidents related to PG approaching men and getting into their cars or approaching strangers and asking them to kiss her. Other incidents related to PG’s self-harm and suicidal ideation, including walking into the road and trying to leave vehicles whilst they were moving.
Discussion
Although expert evidence about PG’s capacity was sought from Dr Jordan King – a highly specialised Clinical Psychologist in the Intensive Support Team of the Adult Neuro-developmental Service – it became clear that this was a complex case and that the law’s desire for clear lines as to both what decisions she did and did not have capacity to make, and in what circumstances she lost or would lack capacity, did not fit with PG’s presentation. As a result, the judge found that there was a lack of clarity in Dr King’s reports and shifts in his oral evidence. Dr King said that PG would struggle to weigh and understand information when she became dysregulated but when she was calm, she could assess and weigh up risks. In relation to the capacity assessment being time specific, the court noted that this would be an obvious problem; when undertaking the assessment, PG may well have been calm and capacitous, but that would not necessarily be the case at the actual point of decision-making at difficult moments in the community when her safety was at risk. The judge noted that Dr King had seen PG at times when she was in a heightened state, after some of the incidents referred to above. Therefore, his evidence was more based on actual observations of PG at critical moments, than is often the case with experts in these cases.
In trying to determine whether PG had capacity for the purposes of the Mental Capacity Act 2005, therefore, the court faced a number of challenges. Firstly, evidence suggested that PG did, at times, have capacity within the terms of s.3, but, at other times, she probably did not. Secondly, there was a close correlation between times when she may not have had capacity and the making of what would plainly be considered unwise decisions. Thirdly, there was also some correlation between her making unwise decisions and her being intoxicated.
The court, therefore, found that she had ‘fluctuating capacity’. It followed that Lieven J found herself faced with a choice between making orders that followed the line of Sir Mark Hedley in Cheshire West And Chester Council v PWK [2019] EWCOP 57, and thus taking a “longitudinal view” of PG’s presentation which closely related to Newton J’s approach to “macro” decisions [in RB Greenwich v CDM [2019] EWCOP 32], (a diabetes case) or that of Cobb J in Wakefield MDC and Wakefield CCG v DN and MN [2019] EWHC 2306 (Fam) and making anticipatory declarations in respect of when PG has the equivalent of a “meltdown” (noting that when having a meltdown DN accepted “that he was unable to properly weigh and use information relevant to decisions as to his care and treatment, and at these times, lacked capacity to make these decisions”).
In deciding this issue, the judge had regard to the importance of making orders that were workable and reflected the reality of PG’s “lived experience” for the sake of PG and those caring for her. Further regard had to be had for the purpose of the MCA – to preserve an individual’s autonomy – in a way that ensured that an individual’s best interests were protected at all times. Finally, the judge noted that it was a fundamental principle of the European Convention on Human Rights and Strasbourg jurisprudence that rights should be interpreted in a way which makes them real and practical, not theoretical and illusory.
The judge was concerned that making an anticipatory declaration for when PG had meltdowns – providing a proper legal framework for the care team, ensuring that any temporary periods of deprivation of liberty were duly authorised, and protecting them from civil liability – would in practice be unworkable for those caring for PG. Unlike previous cases that had come before the court, like Wakefield MDC and Wakefield CCG v DN and MN [2019] EWHC 2306 (Fam), PG did not have capacity in relation to decisions around her care, both when at home and in the community. Although the judge accepted that PG made capacitous decisions when calm, within the meaning of section 3(1), the judge took note of Dr King’s evidence that, even when at home, she would become anxious and emotionally dysregulated, subsequently losing capacity.
This issue would become even more pronounced in the community. The evidence suggested that she made very unwise decisions about contact with others when in the community, but this fact alone did not mean that she did not have capacity, pursuant to s.1(4) MCA. Rather, the frequent reference to her approaching strange men, and sometimes trying to get into their cars, strongly indicated that she did not understand or weigh up information about those decisions. Further, it was not argued by any party that mental impairment had to be the sole cause for the person being unable to make a decision within the meaning of s.3(1) MCA. Thus, even though it was impossible to disentangle the influence of alcohol from the impact of her mental impairment, it could not be argued that PG only lacked capacity at times when she was intoxicated – which would not have been sufficient for a finding of incapacity (unless the drive to become intoxicated was itself lacking in capacity, of course).
As a result of these findings, the judge found that the most appropriate approach was to take the “longitudinal view” and concluded that the more practical and realistic approach was to make a declaration that PG lacks capacity whilst ensuring that any care workers protect her autonomy and only interfere to the minimum degree necessary.
Comment:
Following the decision in North Bristol NHS Trust v R [2023] EWCOP 5, in which MacDonald J provided an authoritative summary of the principles to apply in assessing capacity which were then deployed in the complex case, Lieven J has handed down a judgment that provides a clear and helpful route map through the consideration of capacity, this time in the context of fluctuating capacity.
The judge was not saying that the longitudinal approach was superior to the anticipatory approach for episodes of incapacity. She did not feel that one or other was the correct or indeed better approach. Instead, the judge observed that whatever orders were made had to be workable, not just as a matter of pragmatism, but also so as to satisfy the ECHR.
Lieven J made an important point about the utility of anticipatory declarations, identifying the difficulties with making anticipatory declarations in PG’s case, which resonated with the wider difficulty of seeking such declarations. In practice, they seem only to be of use if they relate to: (1) a very obvious one-off, for instance, giving birth, as in GSTT & SLAM v R [2020] EWCOP 4; or (2) a situation where there are clear external triggers for a person temporarily losing capacity to make a relevant decision.
In cases such as this, therefore, where an individual has fluctuating capacity, it is clear that anticipatory declarations may not be seen as a viable option for the court and a more ‘longitudinal’ approach will usually be taken. However, Lieven J’s emphasis on the importance of preserving the autonomy of PG as far as possible was an important corollary to her willingness to declare that PG lacked capacity in the relevant domains.
Tellingly, from the perspective of the care plan, there was no evidence that she had received care that effectively focused on building her decision making skills.
We also note that the judgment mentioned that the council was providing Care Act services as well as being involved in s117 service provision with the ICB. We doubt whether any of PG’s needs could be said to arise from anything other than her mental disorders and we wonder therefore whether she is being charged for her services, alongside s117 provision. We note that she had capacity for an ‘occupancy agreement’ and that made us wonder whether the accommodation she was in had been provided in full by the s117 authorities as a rare example of the jointly liable authorities appreciating that it is in fact necessary to FUND the accommodation for people with s117 rights if it is the only way to ensure that their aftercare needs are met, as opposed to signposting to a tenancy. We are seeing it happening in more cases now where people in the Transforming Care queue end up with care plans for living alone but with 24 hour support.
Our concern is that s117 commissioners AND providers need to understand that this sort of deprivation of liberty needs a Court of Protection Order and be ready to contract to secure trained staff for the provision of extremely nuanced and sensitive care. The support workers will need real skill in balancing being the person’s friend and communication channel at home and outside, but also exerting benign restraint, and ultimately control, in order to keep the person safe.
We don’t think that there is any way that a person’s benefits should be taken for that sort of service, because we don’t think it can be regarded as adult social care under the Care Act.
The full judgment in relation to this case can be found here: https://www.bailii.org/ew/cases/EWHC/Admin/2023/489.html