Court of Protection Case Law Update

The last two or three months have at times, been unusually quiet in respect of notable decisions from the Court of Protection.

Nevertheless, there have been some noteworthy Judgments to provide some evening reading. One in particular is worth reading in full but is summarised here as best as I can. It deals primarily with the issue of capacity in a rather thorny case including a potential atypical situation of fluctuating capacity.

Calderdale Metropolitan Borough Council v LS & Anor [2025] EWCOP 10 (T3)

It concerns an individual known (for the purposes of the judgment) as ‘Stitch’, a 31-year-old woman, who had diagnoses of mild intellectual disability, ADHD, and a dysfunctional attachment style. The case is primarily concerned with Stitch’s capacity and questions of fluctuating capacity in an atypical sense.

Stitch lives in supported rented accommodation and is supported by an independent agency.

Both Stitch and her mother (who also lacks litigation capacity) were represented separately by the OS.

Stitch’s lack of litigation capacity was not in issue but her capacity to make decisions in respect of residence, care, contact, internet and social media use and engagement in sexual relations were in issue.

It is important to note that these are the second set of proceedings centred around Stitch and her capacity in various areas, these proceedings following closely on the heels of the first at the end of which it was agreed between the parties, and the court, that Stitch did have capacity in same areas now in issue.

Cobb J considered this to be a difficult application to resolve for various reasons he sets out at Paragraph 77 of the judgement:

(a) First, Ms A's assessment in August 2023 which was to the effect that Stitch lacked capacity in many areas of her life followed within only a matter of a few weeks of a final consent order which had been made at the end of protracted proceedings, which had concluded with all of the professionals expressing themselves to be satisfied, and I too of course confirmed, that Stitch had capacity in those self-same areas of her life;

(b) Secondly, Ms A's capacity assessment in August 2023 was unorthodox, and to a degree was lacking in the rigour which is customary (and indeed necessary) in the Court of Protection; given the manner in which the assessment was undertaken (over a period of eight sessions, with no or no explicit statement to Stitch that her capacity was being assessed) it is possible that Stitch was not fully aware that her capacity was being assessed, and this may have skewed the results; furthermore, by the time of the hearing, the report was 18 months out of date;

(c) Thirdly, Dr O'Donovan's final report filed in these proceedings uncharacteristically lacked the forensic acuity which was called for in this case, particularly at this stage, and against this background; in performing her analysis and making her recommendations there was, disappointingly, little or no attempt to triangulate the wide range of available evidence about Stitch, including (specifically but not exclusively) the evidence gathered in the assessments conducted by Ms A and Ms B;

(d) Fourthly, Stitch's capacity has been assessed numerous times over the last few years, and it appears that she has now developed an ability to recall and deploy phrases and vocabulary which – when used in the right context – can mislead the assessor into believing that she has greater understanding, or ability of reasoning, than is in fact the case.

The court went on to delve further into each of these matters which may also be of interest to those reading this article but need not be set out at length. Of particular importance though, at paragraphs 89 and 90, Cobb J notes that over the length of proceedings and a significant number of assessments, Stitch has become adept at holding conversations with professionals, using a range of reasonable expressive language and has learned to use certain terms and stock phrases such as ‘vulnerability’ and ‘risk’. In other contexts, those on the ground, working with her, consider her to lack capacity. In this way, although the assessment conducted by Ms A can be rightly criticised for the unusual way in which the assessment was completed, it may in fact give a better view as to Stich’s capacity than had Stitch known the assessment was being undertaken.

Consequently, at Paragraph 92, Cobb J considers that he would not be assisted by further opinion, and in fact any further opinion may be counter-productive in the longer term.

The court also had to consider and deal with submissions on the support principle which might well be described as ambitious:

History relates that when Calderdale's restrictive support framework was in place around Stitch up to the final hearing in June 2023 – Dr O'Donovan described it as 'containment' and 'psychological containment' – Stitch demonstrated that she could make decisions which at the time appeared to indicate capacitous thinking. When the structure or 'containment' was removed, her decision-making fairly obviously went off the rails, and her 'capacity' (as assessed at the time) to make decisions appeared to recede or altogether disappear.
In view of this history, Ms Roper argues that, taking the evidence as a whole, it would be appropriate now for the court to make 'contingent orders' that Stitch has capacity to make decisions about residence and care but only "provided that" a support plan (a plan of 'containment') is "compulsorily" (Ms Roper's word^[4]) at all times in place. In relation to the decision as to contact between Stitch and her mother, Mr Roper further argues that the court could be satisfied that Stitch has capacity "provided she has the supportive framework of a compulsory support plan and the support and presence of her carers; but that when that supportive framework is absent, [Stitch] is likely to lose such capacity" (emphasis by underlining added).
I recognise that underlying Ms Roper's proposal, to which Mr O'Brien aligned himself in part, could be said to be one of the core principles of the MCA 2005, namely that those who lack capacity should be supported to make decisions for themselves in order to achieve self-determination and independence. However, decision-making which could be 'capacitous' only if the decision is made in the environment in which P is 'contained' by a continuous and (materially) 'compulsory' framework of protections, supports and restrictions, in my judgment lacks the quality of autonomy or self-determination which are important characteristics of capacitous decision-making, where the decisions are made "for [oneself]" (section 2(1) MCA 2005 and §9(d) above). Ms Roper's proposal, if adopted, would be likely to lead to the conclusion that Stitch would 'lose' capacity whenever she is permitted to make her own unsupported decisions, and to have capacity only when she is compulsorily contained or supported. That does not suggest that she has capacity or even that her capacity fluctuates; rather, it suggests that she is unable to make her own decisions.
Looking at it another way, it would be stretching the statutory language too far to conclude that the continuous, compulsory, protective, supportive and restrictive framework created by Calderdale can be seen as an extension of section 1(3) MCA 2005 – i.e., a form of contextual practical 'help' which has been put in place to enable Stitch to make a capacitous decision. I do not accept that the compulsory imposition of a support plan which contains protective and restrictive measures can properly be regarded as comprising the practical steps which have been taken by Calderdale and which I am obliged to consider before I could conclude that Stitch should be treated as unable to make a decision (section 1(3) MCA 2005).
I am therefore unpersuaded that the MCA 2005 permits of the construction urged on me by Ms Roper and Mr O'Brien. That said, looking forward, I view the protective and supportive care package as crucial in offering Stitch a high degree of stability and security within which she can feel more able to express her wishes and feelings freely and fully. For this reason, it is important that her support plan emphasises that those supporting her take into account and respect her expressed wishes at times when she is calm and is able to express her preferences. I return to address this in my order.
Cobb J’s approach to dealing with capacity to determine residence and care is, in my view, worth reading in full:
In assessing capacity in this regard, as in others, what matters is Stitch's ability to carry out the processes involved in making the decision; history convincingly reveals, in my judgment, that she cannot do this without the infrastructure around her of the court order, and the constant support of, and boundaries set by, the staff at Oak House. In my judgment, she is not able to exercise the necessary level of executive functioning to achieve this decision-making autonomously. She derives crucial psychological containment and security from the infrastructure of the support plan; when that has gone in the past, it has exposed her inability to deploy the functions required to make a capacitous decision.
This leads me to consider whether Stitch's capacity in relation to residence and care is fluctuating. The question of fluctuating capacity has been advanced for discussion in this case for the first time, in part (I believe), (a) because Stitch was assessed (and found) to have had capacity in multiple areas relevant to her welfare in June 2023, but in a number of respects it is agreed that she 'lost' it reasonably soon thereafter, and (b) because at times even during the currency of these proceedings she appears to demonstrate capacitous decision making and at other times not.
From time to time, cases come before the Court of Protection in which it is said that P's capacity fluctuates. This is not a typical 'fluctuating' capacity case: Stitch is not someone who has 'meltdowns', or periodic psychotic episodes which impact on her capacity. Within the limitations of her intellect, she displays cognitive rigidity, and periodically she needs to be supported in her decision making when she is feeling personally/emotionally rejected, or her needs are not met and she has difficulty in processing information about others; when using the internet, her motivation to seek a physical relationship is so strong that she is unable to consider other factors when she makes her decisions.
I have considered a number of authorities in this regard. The most pertinent in my judgment is Cheshire West and Chester Council v PWK [2019] EWCOP 57 ('PWK'). It is unnecessary to recount the facts, save to note the similarity between PWK and Stitch in that they can and do "function remarkably well within the constraints of [their] care package" ([25]); in PWK's case, he could easily become overcome by anxiety, and it was the unpredictability of that anxiety and the seriousness and breadth of its impact which was decisive in overturning the legal presumption of capacity. In Stitch's case, she easily becomes overwhelmed by the compulsion to have her needs met.
Sir Mark Hedley described the situation thus: (at [9]/[10]))
In PWK, Sir Mark Hedley referenced and relied on his earlier decision of A,B & C v X, Y & Z [2012] EWHC 2400 (COP); he distinguished isolated decision-making with decision-making (sometimes at short notice) within the overall context of managing one's own affairs: "the management of affairs relates to a continuous state of affairs whose demands may be unpredictable and may occasionally be urgent". He added: "It is the unpredictability of that anxiety and the seriousness and breadth of its impact which is decisive in this case in overturning the legal presumption of capacity" ([25]). Sir Mark Hedley commented that:
The protection offered by section 4(3) MCA 2005 (to which Sir Mark Hedley refers in the passage above) requires the person making the best interests determination to consider "whether it is likely that [P] will at some time have capacity in relation to the matter in question" and if so when; by section 4(6) MCA 2005 (also referenced by Sir Mark Hedley), the person making the best interests determination must consider (so far as is ascertainable) "[P]'s past and present wishes and feelings … (b) the beliefs and values that would be likely to influence his decision if he had capacity, and (c) the other factors that he would be likely to consider if he were able to do so". I return to these provisions later.
I took a different approach, plainly on different facts, in Wakefield MDC and Wakefield CCG v DN and MN [2019] EWHC 2306 (Fam) ('DN'), in which I made 'anticipatory declarations' in respect of P who (I found) had capacity except at times when he had periodic 'meltdowns'. Whether this proved easy to operate on the ground as a matter of practicality is outside my knowledge.
In A Local Authority v PG & Ors [2023] EWCOP 9, Lieven J, having tactfully indicated that she did not consider that my approach or Sir Mark Hedley's approach "is the correct or indeed better approach" on the facts of her case preferred the "longitudinal approach" adopted by Sir Mark Hedley adding:
In this case, Calderdale does not accept that Stitch' capacity fluctuates; Mr Patel and Ms Gardner argue that Stitch lacks capacity in all relevant decision-making, and does not 'lose' it just when she is permitted to make her own decisions. Their secondary position is that the longitudinal approach of Sir Mark Hedley in PWK should be adopted in this case rather than the DN approach.
Dr O'Donovan suggested specifically that given the chronic and unpredictable nature of Stitch's presentation, where the court concludes that Stitch's capacity fluctuates it may be appropriate to determine capacity on a longitudinal basis. By contrast, Ms Roper has argued that this case is closer to the DN scenario than the PWK scenario and that I should therefore consider making anticipatory declarations as to Stitch's capacity and best interests under section 15 and 16 of the MCA 2005, to cover those occasions when she demonstrates to her carers that she is unable to make a capacitous decision as to her care.
I have reached the conclusion on the evidence which I discussed above (§§36-45) that, recognising all of the caveats described above, in the area of residence and care there are times when Stitch appears to articulate a level of understanding and reasoning which suggests that she does have capacity; indeed, this was a finding which I made about this and many aspects of her decision-making in 2023. However, at other times, she shows such a clear and marked lack of understanding or reasoning about her residence and care needs that she could not be viewed under any circumstances as having capacity. In this regard, and on all of the evidence laid before me, I feel driven to the view that she does not have capacity to make decisions about her residence and care, but her lack of capacity does to a degree fluctuate to a point where she has been, and from time to time, when settled, appears capacitous.
Looking forward, as Lord Stephens exhorts the Court of Protection to do (see §11 above), this is a case in which I should consider a future continuous state of affairs where the demands on Stitch are as 'unpredictable' (see §105 above) as they have been in the past, and where her dysfunctional attachment style causes her to function (again as it has in the past) in a way which is overpoweringly "needs led". I am satisfied that in the future she will continue to prioritise what she thinks she needs to achieve validation. In these circumstances, she is likely in my judgment to become easily overwhelmed and/or driven by her needs. This case is, in my judgment, more like PWK than DN; that it would impose an all-too onerous burden on the staff at Oak House if I were to require them to operate under a programme of anticipatory declarations. It is thus appropriate that I should take a longitudinal perspective on her capacity in these regards, and to declare (albeit with reservations) that she is incapacitous in these areas.

"When PWK was relaxed and in a good place he might well be regarded as having capacity. However, when he became anxious his position could be very different. Moreover, there were many things that could trigger anxiety and quite often his carers would be confronted with irrational behaviour that could be difficult to manage. The question arose as to how the legal position on capacity should be addressed in these circumstances.".

"[19] Some have referred to this as taking a longitudinal view. In my view, this approach has the value of clarity. It establishes that the starting point is incapacity. The protection for the protected person lies in the mandatory requirements of Section 4, in particular subsections (3) and (6) ….

[21]… where a longitudinal perspective was adopted then PWK lacked capacity in all relevant areas."

"How an individual P's capacity is analysed will turn on their presentation, and how the loss of capacity arises and manifests itself".

In two following paragraphs, Cobb J dealt with Stitch’s capacity as to the use of the internet and social media using the same longitudinal approach.

In respect of Stitch’s capacity to engage in sexual relations, the parties in the end did not dispute that she lacked capacity. Cobb J concluding with his comments that it is hope that some targeted work with Stitch and support around the issue of consent to sex may well enable her to achieve capacity in the future.

Aside from this Judgment being particularly helpful in relation to the issue of situations where P has grown so accustomed to assessments, that assessments themselves become unclear in their value, and the approach to potentially atypical presentations of fluctuating capacity, it is also a reminder of the loss to future litigants caused at first instance by Cobb J’s appointment to the Court of Appeal.