ASC Practice Hub

Introduction

Please see below for previous email updates from the MCA Lead as sent to internal adult social care (ASC) staff, covering notable judgments and practice updates related to the Mental Capacity Act 2005.

2025

July – Update to MCA guidance on finances and financial protection

The internal CBMDC mental capacity and best interests guidance has now been updated, alongside the template for financial management mental capacity assessments. These also accompany the Financial Protection Team’s guidance on the Appointee and Deputyship Service. All documents are attached to this email and will also shortly be available on the MCA and DoLS section of ASC’s practice hub.

Of particular note, the ‘CBDMC Mental Capacity and BI Guidance – Finances’ document contains the following important updates:

• Paragraph 9.2 requests that before a best interests decision is made for CBMDC to be the appointee or deputy, that ASC staff have fully explored why friends or family can’t manage finances for the person, and have considered providing them with advice on how to become an appointee, a deputy or LPA for property and affairs. The FPT can only explore the council securing appointeeship or deputyship for a person where it is clear that alternative options have been explored and identification of why these options are not viable.

• Section 10 provides an overview of the referral process into the FPT. Paragraph 10.4 outlines the expectations of ASC staff in remaining allocated to the person until such time that the appointeeship or deputyship application by the council has been finalised/authorised; and not ending their involvement before this has been confirmed in case further information or input is needed as part of the appointeeship or deputyship application by the council.

On behalf of the MCA/DoLS and Financial Protection Team, I hope this will be of further benefit to the staff in your services when approaching and carrying out mental capacity assessments and best interests decisions in this practice area

May – EDGE case law summary sheet and fluctuating capacity

Dear All,

Please share the updated case law PDF from Edge Training Consultancy with your teams. This is an excellent quick reference resource.

The updated version helpfully outlines notable recent judgements related to matters such as contact, alcohol use, sex, and contraception. There is also a useful section on using and weighing up – citing case law that pertains to certain factors that impact on this (executive dysfunction, delusions, ‘insight’/’belief’).

Of note, the section on fluctuating capacity has been revised and contains almost all of the key judgments on this area. It also refers to the recent Calderdale Metropolitan Borough Council v LS & Anor [2025] EWCOP 10 case.

I have spoken to some of you about this and there’s much to take away from the judgment, including:

• A reminder on when/how to think about ‘longitudinal’ capacity. I attach a MCA/DoLS update I sent out a few years ago that summarises the PWK case where this stems from. The update also includes reference to other case law on fluctuating capacity, which is still relevant to our practice.
• The importance of ‘triangulation’ when assessing capacity. Not just basing your conclusions on your discussions with the person alone, but considering broader evidence in more complicated situations where fluctuating capacity or executive dysfunction is a factor.
• Being mindful of whether the measures used to support decision-making (practicable steps) are actually masking the person’s ability to make an autonomous decision.

As an aside, it’s also very promising that the young woman at the heart of the Calderdale judgement chose how she wanted to be referred to (Stitch, after her favourite Disney character). It make a pleasant change from the usual CR, XY, XX, Z etc.

Kind regards

Owen Stott

January – Sex (again) and finance abridged

A further reminder around capacity assessments on sexual relations (December 2024)

In Re ZX (Capacity to Engage in Sexual Relations) [2024] EWCA Civ 1462, the Court of Appeal have provided some further clarity on the ever-complex area of mental capacity to consent to sexual relations. Alex Ruck-Keene provides an overview of the judgement, available here.

Of specific note for capacity assessments on sexual relations, the Supreme Court judgment in A Local Authority v JB [2021] UKSC 52 is still the appropriate “test” of capacity.

However, points from the judgement or wider application are that:

• impulsivity is not reason alone to say someone lacks capacity.
• a history and pattern of a person’s previous behaviour needs to be considered carefully when using this as evidence to say they lack capacity, particularly where this evidence may give clues instead to them having the ability to understand and use the information but choosing not to do so.
• the Mental Capacity Act 2005 (and the Court of Protection) should not be used to fulfil the roles of the criminal justice system, although Alex Ruck Keene states: “It is also very clear that public authorities aware of sexual risks posed by those for whom they have statutory responsibilities will continue to have to steer a very careful line – and a line to which recourse to human rights arguments unfortunately makes no clearer or broader.”
• the judge states when establishing the causative nexus referring to “a connection” is insufficient. The presumption of capacity can only be rebutted if there is a clear causative nexus between the inability to make a decision and an impairment of, or a disturbance in the functioning of, the mind or brain.”. In other words, to outline that the causative nexus is met requires a very clear and cogent rationale as to specifically how and why the impairment means the person can’t make the decision.

Update in January 2025

In my last update, forwarded below for reference, I referred to the Re ZX (Capacity to Engage in Sexual Relations) [2024] EWCA Civ 1462 judgement handed down by the Court of Appeal.

I recently attended an Essex Chambers webinar, which further discusses the judgement. The recording is available here. It unpicks some more of the very thorny issues arising from this case, and I thought it would be worth sharing this with you all; not least as it could contribute to you and your teams’ CPD for Social Work England.

Of particular interest is the discussion around how Local Authorities can manage sexual risks posed by (not to) people we have statutory duties for (from 32:39 on the recording). SPOILER ALERT, Victoria Butler-Cole KC says of this: “what we don’t really have from the Court, as yet, is any real clarity about any of this”. Unfortunately, the recording doesn’t show the webchat during the webinar, but a few attendees made the point that criminal justice and police measures, such as SHPOs, aren’t just punitive but can be educational and positively supportive for the person in avoiding future issues around sexual relations; in other words, it doesn’t and shouldn’t all fall to the Local Authority or the Court of Protection to coordinate this.

I will keep you updated as to the outcome of the new capacity assessment for ZX as and when the Court give further judgement. I hope this will provide further clarify for practitioners grappling with the ‘impulse in the moment vs incapacity’ debate as well as the judgement hopefully providing a road map for how people like ZX – and the individuals they pose a risk to – can be supported by statutory organisations where a lack of mental capacity is and isn’t a factor.

In other developments, there is a new resource on the MCA and DoLS section of the ASC policy portal entitled ‘CBMDC Mental Capacity Assessment TEMPLATE – Finances [Nov 2024]’. This has been devised to provide further clarity for your teams when conducting capacity assessments on financial management, and it accompanies the more extensive CBMDC Finance MCA and Best Interests guidance document which was already on the MCA and DoLS portal.

2024

September – Sex and contact

Hello all,

I appreciate it has been some time since I last sent an update, however I try to avoid sending these emails unless there is a genuinely interesting or noteworthy development in law or policy.

In the world of sex and the MCA 2005, there continues to be some very interesting judgements. You may recall the update I sent out in March 2024, where I referred to Re EE (Capacity: Contraception and Conception) [2024] EWCOP 5. This was the case where the judge found that EE lacked capacity to make contact decisions, but had capacity to engage in sexual relations. As a result, the judge identified that best interests decisions on contact could be made for EE on a person-by-person basis where, ultimately, it may be that when EE had spent enough time with one person – and the risks were appropriately appraised – she could then have a sexual relationship with them.  PS v A Local Authority, WP, DT & RS [2024] EWCOP 42 is another situation where contact and sex interlink in the type of situation that I suspect is quite common in care homes up and down the country.

It involves PS (a 79 year old lady in a residential care home) who has a diagnosis of alcohol related mental impairment. From reading the judgment, the application (not brought by the Local Authority) appears to be the result of contact restrictions put in place by the provider and LA to prevent PS from having time alone in her room with her long-term partner, WP. Concerns also existed re: the risks to PS from other men in the care home. The judgment notes that PS has an “inability to assess any risks that a person with whom she has contact with may present to her. That is further complicated by evidence that, because of her damaged memory, PS is liable to misidentify people. She has, it was said, mistaken other men for WP in this case. This may have implications for her decisions on contact generally but also on sexual relations”.

I won’t re-hash the judgement in full, although this is quite short and can be read here. However, after hearing expert evidence from a consultant neuropsychologist, the judge identified that PS lacked capacity to make decisions about contact with other men (fellow male residents in the care home), yet was viewed to have capacity to make decisions about contact with WP. PS was also viewed as able to make decisions to engage in sexual relations. As a result of this, the judge recognised that PS and WP were to be supported to have contact in private so that they can engage in sexual relations “if they both want it”, yet the judge explained this would be a “challenging” care plan to enact. Although not covered in detail the judgment, I expect a care plan would also be needed in PS’s best interests to prevent her spending time with other men in private in case she mistook them for WP and engaged in sexual relations with them.

This judgement throws up a number of points:

• It reminds us that although sex and contact are inextricably linked, the matter of capacity around contact (where someone lacks this) is not automatically a pre-cursor for someone to not have sex where that person has capacity to engage in the act. Although PS had capacity to consent to contact with WP and to consent to sex, Manchester City Council v LC and KR [2018] EWCOP 30, was cited and endorsed by the judge (in turn, indirectly re-emphasising the decision in the re: EE case): “it is perfectly logical, looking at capacity in an issue-specific context (as the MCA requires), to possess the decision-making facility to embark on sexual relations whilst, at the same time, not being able to judge with whom it is safe to have those relations”.
• Whilst JB v a Local Authority [2021] is still the standard in providing the relevant information for sexual relations and should not be veered from, the relevant information for sexual relations does need to be tailored for specific contexts. WP is 79 and, therefore, the relevant information from JB “that a reasonably foreseeable consequence of sexual intercourse between a man and woman is that the woman will become pregnant” was not included in her capacity assessment on account of her advanced years.

This is likely to be a factor in many sex capacity assessments with older women. Conversely, if WP were of any age and expressing a wish to solely have sexual relationships with other woman, for example, this would also likely be a redundant point (the same is the case for homosexual men, too). Capacity assessments on engaging in sexual relations for a person in a long standing monogamous relationship are also unlikely to always include the relevant information on “the acquisition of sexually transmitted and transmissible infections”.

• The judgement refers to a safeguarding concern being raised when PS and WP were found “alone together in a locked room” at a time when PS’s capacity for sex and contact hadn’t been assessed. I can fully appreciate that there may have been legitimate concerns about PS’s ability to consent to sexual relations necessitating the safeguarding alert and subsequent actions, but this has made me reflect on the broader – sometimes discriminatory – narrative that it’s wrong or worrying where residents in care homes seek to express or fulfil sexual needs.

In my own experience, I have visited countless care and nursing homes where merely mentioning the word “sex” is met with rushed efforts to censor with provider staff saying “this isn’t something people here want”; where the notion of residents in a care setting spending time alone needs to be stopped at all costs (and who’s to say that people in a room with a closed door are always seeking to have a sexual encounter?!). Away from older people, too, this is an issue facing people with learning disabilities who are often, inaccurately, viewed as asexual or hyper-sexual – where sexual needs are either made invisible or problematised.

These attitudes are at odds with the CQC guidance on relationships and sexuality in adult social care services, which is a reminder that sexual and relationship-based needs are very much a Human Rights issue and should be actively considered by care providers. Perhaps if there was an explicit recognition of this, more could be done to promote sound rights and consent-based decision making in this area, as well as avoiding quite troubling situations such as this from earlier this year: Former Warwickshire care home manager is ordered to pay £10,000 for failing to protect resident from sexual assault – Care Quality Commission (cqc.org.uk)

We, in ASC, also have a key role to play here, both in seeking to support providers and the people we work with in having constructive discussions on this topic, as well as safeguarding and promoting the wellbeing of people who can’t consent to – or don’t want – sexual or romantic relationships.

• PS’s previous alcohol use as causing her mental impairment, also caused me to think about the many conversations I have with managers and social work staff about capacity assessments in relation to alcohol use more generally; for people typically living in the community who are alcohol dependent who may, unfortunately, end up in a similar situation to PS.

Forgive the seemingly disjointed leap to plugging external guidance, but I have been meaning to share this excellent guide written by Professor Michael-Preston Shoot and Mike Ward – How to use legal powers to safeguard highly vulnerable drinkers in England and Wales. Section 7 on page 22 directly talks about the MCA 2005 in this area. Whilst a few years old now (the pre-JB ordering of the ‘test’ of capacity is used) it is a genuinely helpful document. It also refers to the London Borough of Tower Hamlets v PB [2020] EWCOP 34 case, which provides a very helpful way of framing capacity assessments on alcohol (and it also could apply to drug use). Further analysis of the PB judgment is here.

June – Mental capacity assessments for care providers

Barrister, honorary Kings Counsel and one of the leading authorities on the Mental Capacity Act 2005, Alex Ruck-Keene, has recently uploaded a webinar on care providers and expectations around assessing mental capacity. I was thinking it may be something you want to share with your teams. A link to the webinar is here Capacity for care providers – Mental Capacity Law and Policy

It is only 20 minutes long but is highly informative and may actually take a lot of pressure off care providers who feel compelled to write up capacity assessments and best interest decisions in situations where they aren’t needed. It may also serve as a prompt to providers who don’t record these when they should be doing them. It is relevant to providers of residential and nursing care, but also domiciliary and community based care agencies, too.

If care providers are really pushed for time and want to get the crux of what Alex is talking about, they could watch the video from 9 minutes 23 seconds where Alex answers the perennially asked question: “Why do I have to keep writing up so many capacity assessments?”. However, I believe the full video is worth a watch.

What really comes through is that whilst care providers obviously have to think about capacity – not least because of the Mental Capacity Act 2005 but also because of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 – they don’t need to formally write up capacity assessment and best interests decisions for every little decision they make for a person. Yes, they will be considering if someone has the mental capacity to consent to decisions such as what to eat, what activities to do, what to wear etc. and, if they have a reasonable belief someone lacks capacity, they will be making best interests decisions. However, they don’t need to then go away and write up detailed accounts of this.

Alex talks about ‘big-ticket’ decisions such as:

• residence;
• a person’s care at a more general level (to reiterate, not recording capacity assessments and best interests decision for the minutiae of every single care task);
• restrictions/restraint;
• medical treatment decisions (although this would usually be the health professional’s responsibility); etc.

It is for these types of more significant decisions that a mental capacity assessment (and best interests decisions) needs to be written up, not for literally all decisions made for people who lack capacity.

PS: Obviously, Alex’s webinar, nor anything within this email, constitutes legal advice which should be sought by care providers if in any doubt.

Kind regards
Owen Stott

April – Care and residence / a Principle 1 reminder

Dear All,

There’s a few recent judgments that put the spotlight on two particular matters that perennially come up in relation to mental capacity. Namely, how separate a mental capacity assessment on care is from a mental capacity assessment on residence, and the limits of Principle 1. I hope what follows will provide some further clarity for your teams.

How separate a mental capacity assessment on care is from a mental capacity assessment on residence?

This can be a considerable source of confusion for many of us and it’s somewhat reassuring to know that we’re not alone – this matter is subject to ongoing debate by some of the leading legal minds in the country. There are however, thankfully, a few key judgements that crystalise this and put forward the type of situations where matters of care and residence should be viewed together: CLF, Re (Capacity: Sexual Relations and Contraception) [2024] EWCOP 11, Re CMW [2021] EWCOP 50 and Re ZZ (Capacity) [2024] EWCOP 21.

The recurring theme within the judgements is that although capacity assessments on care are technically distinct from residence capacity assessments, in many situations they are inextricably linked. In other words, it’s not always practically feasible to find that someone has capacity to make decisions about residence but then lacks capacity to make decisions about care.

For example, let’s say you are working with a person who was, in theory, able to make decisions regarding whether to live at home or a care home as a residence decision, but was then deemed as unable to make decisions in relation to the care they receive in each place – care that would differ depending on where they lived. In practice this could be quite problematic when the specific care arrangements in each setting are dissimilar, with specific risk factors necessitating contrasting intervention and input unique to each place. How can care be disentangled from residence if the choice of residence will have a bearing on how the needs for care and support for the person are met (care and support needs the person can’t grasp or consent to)?

Effective application of the mental capacity act relies on its translation to the complexities and interrelated nature of decision making in reality; a lot of the time the decisions people make can’t be neatly compartmentalised. Zooming out and looking at a situation pragmatically will be beneficial where issues of care and residence are so intertwined. I contend it would make more sense to join care and residence as one decision in scenarios where, as Poole J puts it in Re CLF [2024], “the choice of residence will itself determine the level and kind of care required.” This is the type of situation we have seen for a long time with DoLS where the elements of care and residence capacity assessments (as stemming from LBX v K, L and M [2013]) come together under the question of: ‘Can the person consent to being accommodated in a care home/hospital for the purpose of receiving care and treatment?’.

A reminder about Principle 1

I have been following the case of Rosslyn Wolff for a while now. Rosslyn was a lady who sadly died in a house fire at her home in Romford in 2022, thought to have been caused by her discarding a lit cigarette in her property. Rosslyn was reported to have been hoarding and self-neglecting. In the run up to the judgement, amongst many criticisms levelled at the local authority in the media, was the allegation that a mental capacity assessment never took place around decisions related to her welfare.

Now the judgement has been reached (available on Bailii here) it does appear that the local authority carried out a capacity assessment (on what is thought to be management of the risk of hoarding) and Rosslyn was deemed to have capacity in relation to this. Whilst it is reassuring to know that the local authority conducted a capacity assessment instead of misinterpreting principle 1, this case has relevance to many other scenarios (not just hoarding) where people are making decisions that could have very serious ramifications for their wellbeing. Whilst I am constantly encouraged by how sound ASC staff’s grasp of Principle 1 is, it does seem that misinterpretation of Principle 1 endures elsewhere; the myriad of Safeguarding Adult Reviews (SAR) nationally citing how Principle 1 is misunderstood attests to this.

Within case law, too, judges still feel the need to outline what Principle 1 means and how it should be applied. In Alex Ruck-Keene’s recent report on A Council v An NHS Foundation Trust & Ors [2024] EWHC 874 (Fam), he highlights Lieven J’s comments re: the potentially shaky ground a NHS trust were on in their application of Principle 1: “I am very conscious of the fact that the NHS Trust considers that she does have capacity and also relies on the presumption in favour of capacity under section 1(2) of the Mental Capacity Act 2005. I am, however, equally concerned that the case law suggests that, when a court is considering capacity, the more important the decision the more careful the court needs to be that the person in question has capacity, as well as being particularly careful that they can give informed consent.”

Lieven J’s comments largely mirror the guidance by Essex Chambers in their Mental Capacity Guidance Note (itself stemming from the case law Lieven J was likely referring to above): “Whilst the presumption of capacity is a foundational principle, you should not hide behind it to avoid responsibility for a vulnerable individual… If you have proper reason to think that the person may lack capacity to take a relevant decision, especially if the consequence of what they are wanting to do is likely to lead to serious consequences for them, it would be simply inadequate for you simply to record (for instance) “as there is a presumption of capacity, [X] decision was the person’s choice. Indeed, the more serious the issue, the more one should document the risks that have been discussed with P and the reasons why it is considered that P is able and willing to take those risks.”

Now, I am not for one minute suggesting a capacity assessment is undertaken for every vulnerable person we support in Bradford – we all know this would be impossible, unethical and a widespread violation of people’s human rights. But, where a person’s decision making could foreseeably lead to a particularly harmful outcome or have a very detrimental impact on their welfare – and if there is valid doubt about their ability to make the decision – the grounds for a formal capacity assessment are likely to be present. In turn, the capacity assessment provides the forum to establish whether the person can or can’t run the risk and make that decision and this is where the evidential burden required to rebut Principle 1 is found (or not, in which case Principle 1 endures*). Outside of this, I contend that an individual or organisation (we are not the only organisations and professionals responsible for assessing capacity!) would struggle to put forward a defence in the face of scrutiny where there were question marks about capacity, and Principle 1 was referenced as the reason this wasn’t assessed.

*As mentioned in a previous MCA/DoLS update email, even if someone does have capacity, this doesn’t mean professionals can simply walk away and eschew existing duties under other legislation, for example: the Care Act 2014, Mental Health Act 1983, the Human Rights Act 1998 (of note, Article 2 when there is a known risk to life), the Public Health Act 1991, Anti-social Behaviour, Crime and Policing Act 2014 and so on.

Kind regards
Owen Stott

March – Locked front doors

Please note: The following is being provided in response to requests from care providers. It does not constitute legal or regulatory advice, which should be independently sought if in any doubt.

Many residential and nursing homes have secure/locked entrance doors that require a fob, a code or a key, which are often held by care staff exclusively. This requires residents to request permission from care staff to leave or access the care premises. This is typically a reasonable and justifiable measure where the aim is to safeguard the people who live in these settings, also protecting personal property and/or money. Moreover, there may also be further grounds for doing this allied to resident safety: to keep the site/property secure as well as protecting the staff working there. It is advisable that care providers are clear about their rationale for having a locked entrance/exit door, identifying the necessity of this in a written policy and reviewing these arrangements on an ongoing basis to ensure they remain appropriate and proportionate. Some providers address this in a formal policy document and have risk assessments in place for this, and this is an advisable course of action for all providers.

Providers should be careful to avoid inadvertently restricting people’s movements and should use the appropriate level of security needed in relation to the services being delivered. Where a locked front door is seen as necessary, providers should enable as much freedom of movement in and around the care setting and, where possible, an open back-door policy should be in place if access to any grounds or garden is safe and secure.

For all residents that live in a care setting with a locked entrance/exit door, they should be informed of the terms and rules of living in the accommodation – including the arrangements for leaving and accessing the property – at the earliest opportunity. It is advisable that a record of these discussions and whether the resident consents to these or not is kept. If the resident with mental capacity consents, then it is self-evident they are in agreement with the arrangements for leaving and accessing the care setting. Conversely, if the resident with capacity doesn’t agree to these, then they are not obliged to be accommodated in the care or nursing home. Crucially, residents with the relevant decision-making ability should be able to leave or access the property when they want to (providing it’s reasonable for a staff member to be able to facilitate this, assuming they are not responding to an emergency where the capacitous resident might have to wait a few minutes, for example) – this alone is unlikely to constitute a deprivation of liberty.

However, for residents who lack capacity to make decisions to leave and enter the property when they want, the ethos of the Mental Capacity Act 2005 applies. In other words, the least restrictive options to support the resident should be explored, enabling them to leave the care setting for community access and social opportunities where possible when this is in their best interests. It is also important to be mindful of the fact that the resident who lacks capacity to consent to these arrangements is also likely to be unable to be free to leave as well as being under some form of continuous supervision and control. This would suggest that the Acid Test for DoLS is met and usual processes should be followed in relation to this.

Kind regards
Owen Stott

March – Essex chambers relevant information guidance

Dear All,

Please find attached the updated March 2024 Essex Chambers guidance covering the relevant information for different types of decision. As most of you will know, this is a particularly helpful resource when preparing for and carrying out capacity assessments. Please share this with your teams and delete or archive the previous version from September 2022.

In summary, there is not much that has changed but two new categories of decision have been added:

Hospital Discharge

Upon reading the guidance, I would urge you to focus on the authors’ point at paragraph 21: “A separate question arises about responsibility for making decisions about (1) discharge; (2) residence upon discharge; and (3) care arrangements upon discharge. For more on this see here”. The embedded link, to one of Alex Ruck-Keene’s PPT presentations, is helpful in further distinguishing the types of decisions that we, the Local Authority, would be expected to assess capacity for in the hospital context, which are as follows:

“Local authority:

• Deciding upon assessment of needs (capacity relevant to participation)
• Deciding upon how to meet assessed needs (capacity relevant to choices being made between available options)
• Deciding upon steps required to safeguard person, including against risk of abuse or neglect if discharged into unsuitable accommodation or into unsuitable arrangements (capacity relevant to exercise of powers to secure against risk of abuse)
• Deciding whether to authorise deprivation of liberty of adult in hospital or care home (capacity relevant to whether person deprived of their liberty)
• Deciding whether to seek judicial authorisation of deprivation of liberty for non-DoLS case, if not CHC-funded (capacity relevant to whether person deprived of their liberty)
• Not the decision-maker as to whether clinically appropriate for person to stay in hospital (capacity irrelevant)”

Sharing Medical Information

The judgement the relevant information stems from – for very obvious reasons that I don’t need to elaborate on – pertains to the ASC sphere. This is both in terms of ASC staff being the recipients of information shared by colleagues in health and other organisations, but also our own role in sharing information with others.

Other points of note

Whilst JB v A Local Authority [2021] UKSC 52 is still authoritative in regards to the relevant information for sexual relations, the new guidance does include reference to two recent judgements in the world of sex. One of the cases is Re PN (Capacity: Sexual Relations and Disclosure) [2023] EWCOP 44, which I wrote about in the MCA/DoLS email update in November 2023 (a judgement that reminds us not to set the bar for capacity on sex too high and, of broader application, re-iterates that impulsivity does not necessarily equate to a lack of capacity at the time the impulsive urge is present). The other judgement is Re EE (Capacity: Contraception and Conception) [2024] EWCOP 5.

Although the guidance note refers to the EE case in relation to capacity to make decisions about contraception vs conception, the judgement is about much more than this. At the centre of the judgement the matter of contact and sex arose. It was identified that EE lacked capacity to make decisions about contact with strangers (men she would meet from the internet who may exploit her), but she had capacity to consent to sexual relations. In his judgment, the judge stated:

“I am content to find that EE lacks capacity to decide on contact with others, specifically those with whom she is not already familiar, but has capacity to decide to engage in sexual relations with others. EE’s carers have devised and adopted a care plan which has been based on those positions in relation to capacity. It follows an approach of the kind set out by Baker J in A Local Authority v TZ [2014] EWHC 973 (COP) and discussed in his oral evidence by Dr Todd when he referred to “positive risk taking”. The approach involves encouraging EE to consider the risks and benefits of meeting any particular person and the form of contact with them but ultimately to make best interest decisions to protect her from harm, or the risk of harm from contact with a person with whom she is unfamiliar, and to allow for interventions by a carer. However, once she has familiarity with a person and wishes to have sexual relations with them, her capacity to make that decision would have to be respected.”

I acknowledge that this may cause you to ask ‘how can someone who lacks capacity to make decisions about contact, then be put in a situation where they could have contact with someone they will have sex with?’ Some of you may also point out that this seems to veer closely to making best interests decisions for EE to have sex, which would be unlawful as per section 27 of the MCA 2005.

Essentially, however, the judge has put forward a thoughtful and cogent judgement, outlining that a gradual and closely risk managed approach to contact takes place for EE; moving from a proportionately protective gatekeeping stance to a more progressive (in both senses of the word) and less-restrictive realisation of her Article 8 rights when the time, person and circumstances are right.

Nevertheless, I can’t help but wonder how the best interests decisions might be unduly influenced by the biases and prejudices of the decision makers on superficial grounds further down the line, when out of the judicial spotlight. What if EE had particularly strong feelings about having further contact (and sex) with a chap that the decision-makers disapproved of and so decided she shouldn’t see without an objective basis? That said, I very much hope that EE’s wishes, feelings and preferences about contact with a particular male are fully considered against a fair and thorough appraisal of any risk posed to her as part of the best-interests process. Moreover, were EE to disagree with the decision for her not to see said male, I suppose the matter could always be brought back before the court.

Kind regards
Owen Stott

2023

October – Mental capacity and financial institutions

Dear All,

I stumbled across an article the other day, available here, on a mortgage website entitled ‘Equity release – how do you assess mental capacity?’. Apart from the order of the test of capacity being wrong, I was encouraged by some of the content. Equity release aside, it has broader applicability to individuals and firms regulated by the Financial Conduct Authority (FCA) that many of the people we work with will have dealings with – businesses, mortgage lenders, banks, credit card companies, insurance brokers, mobile phone companies and even some care home investment schemes.

The article states:

“Tim Farmer, clinical director and co-founder of Comentis, has seen an increasing number of capacity-related claims coming through in recent times – particularly claims that elderly clients have signed up for equity release mortgages when they were not of sound mind. ‘What makes this issue even more pressing is that while the industry is broadly aware capacity must be assessed, there seems to be confusion as to where that responsibility lies – the broker, the solicitor, or the lender,’ he said. It is a topic which everyone must understand, Farmer said, and the implications of getting it wrong are going to be felt all-round.”

I, personally, dread to think how many people have been, or are, unlikely to have the mental capacity to make certain decisions at the interface with the aforementioned companies; and I have previously seen firsthand the economic and emotional fallout from these sorts of companies not considering mental capacity. However, that the FCA have produced guidance for firms on the fair treatment of vulnerable customers and identify ‘vulnerability’ as a category in their regulations is a positive. This guidance refers to the aims of FCA regulated providers to:

• consider a person’s mental capacity to understand a product or service;
• to have systems in place to be aware of vulnerable customers;
• to integrate an understanding of how their business meet the needs of these customers, and so on.

All in all, it’s quite a well-considered document on a theoretical level.

To know that vulnerability and mental capacity is something people working in various spheres of the FCA regulated sector are seemingly more cognisant of – both conceptually but also, crucially, in terms of recognising their role in assessing capacity – is cause for optimism; I am all for a world where the default response to anything related to mental capacity isn’t “it’s not our responsibility”. That said, I am also mindful that we are likely to continue to work with individuals who have slipped through the gaps or who have found themselves in economically precarious/dire situations, potentially as a result of sharp – or simply uninformed – financial practice. In these instances knowledge of industry guidance and initiatives can be a tool to remind financial institutions that mental capacity, and taking additional steps to support vulnerable people, is (excuse the cliché) everyone’s business.

Kind regards

Owen Stott

September – LPA Act 2023 and insight in capacity assessments

Dear All,

Please see below for an update on…

The Powers of Attorney Act 2023

The Act has now been granted royal assent, although the date this comes into force is yet to be confirmed. This marks a significant change in how Lasting Powers of Attorney will be applied for – by digitising the LPA application process with some added new mechanisms as well. A streamlined paper-based application process will still exist for those that don’t want to, or can’t, use the digital system.

Some of the key changes the Act will bring about are succinctly summarised here, but are also outlined below:

• Only the donor can initiate an application to register an LPA, effectively disallowing attorneys from taking on this role.
• The duty to notify named persons about the LPA registration now rests solely with the Office of the Public Guardian (OPG), moving this responsibility away from the applicant.
• A comprehensive ID verification process will be implemented, covering everyone involved in the application—donors, certificate providers, attorneys, and replacement attorneys.
• A new provision enables third parties to raise objections directly to the OPG regarding an LPA registration.
• The Act recognises electronic versions of registered LPAs as legal evidence.
• Chartered Legal Executives are now authorised to certify copies of LPAs, broadening the pool of qualified individuals.

This will be welcome news to many. There have been various criticisms of the existing Lasting Powers of Attorney (LPA) process, including how relatively easy it is to fraudulently register these, the complexity of the process to put this in place and the sheer volume of paperwork associated with this.

Watch this space for further updates in relation to this, although I suspect there may be various IT related issues causing delays to implementation.

Use of ‘insight’ in capacity assessments

There is a good ‘in conversation’ video by Alex Ruck-Keene on ‘insight’ here and the journal article of the academic he speaks to, Dr. Magdalena Furgalska, is available at the link. The article predominantly focuses on insight (or the lack of) being used as a pretext for the detention of people under the Mental Health Act 1983 and the circumvention of their consent for care and treatment. I suspect this will be of particular interest to AMHPs and colleagues in Mental Health teams, however there are key points that apply to broader practice and it’s use in mental capacity assessments.

It is clear that Dr. Furgalska is uneasy about the word insight being used in mental capacity assessments, and she cites the following NICE guidelines for health practitioners on assessing capacity:

“Practitioners should be aware that a person may have decision-making capacity even if they are described as lacking ‘insight’ into their condition. Capacity and insight are 2 distinct concepts. If a practitioner believes a person’s insight/lack of insight is relevant to their assessment of the person’s capacity, they must clearly record what they mean by insight/lack of insight in this context and how they believe it affects/does not affect the person’s capacity.”

I, personally, have been guilty of the occasional use of the terms “has insight” or “lacks insight” in capacity assessments previously and I could have been much more transparent about what I meant by this. Although often used as a well-intentioned description of someone’s ability to use and weigh or understand the relevant information, these types of statements are somewhat meaningless on their own; and at worst, as highlighted in Dr. Furgalska’s paper, can undermine and patronise the people we are working with as well as being used against them.

As outlined in the quote from NICE, if we are to use ‘insight’ in capacity assessments it is crucial to reflect and identify what we are trying to say or describe when we use this term and how it demonstrably links to the person’s understanding, retention and using and weighing up of the relevant information. Simplicity is, perhaps, key.

Alternatively, as pointed out in the journal article, is a lack of insight being used to describe a difference of values between the person and the professional assessing their capacity? If so, saying someone lacks insight in this sense risks discountenancing the person’s unique viewpoint – in turn, inadvertently disregarding principle 3 – not to mention creating a power imbalance. It has echoes of the problematic scenario we still see in the wider health and social care field: “if you agree with me you have capacity. If you don’t then you lack capacity”.

Kind regards,
Owen Stott

August – Best Interest case law

MCA Team Update

Hello All,

I just wanted to send a quick update about a particularly poignant case report stemming from Nottingham University Hospitals NHS Trust v JM & Anor [2023] EWCOP 38.

I would encourage you to have a read of the summary on the Local Government Lawyer website here; I will spare you my extensive musings, and the overview below won’t do the detail and nuances of the case justice.

JM is a 26 year old man with autism. The report states: “JM was diagnosed with chronic kidney disease in January 2021 and has acquired Thrombotic Thrombocytopenic Purpura. He requires regular at least 4 hourly sessions of haemodialysis for a minimum of three times per week. “It requires to be stated that the clinical consensus is that JM will die within 8-10 days, if he does not receive treatment”, said the judge.”

After a series of hearings, the judge needed to make a decision re: treatment options and the dialysis, including the use of general anaesthetic to enable insertion of the dialysis line at one end of the scale to a palliative care pathway, with dialysis only being provided if JM asked for this, at the other end. The judge went with the latter option given the significance of JM’s objection to invasive options involving restraint and the distress that would be caused by options where dialysis was simply offered to him by those involved in his care.

On meeting JM, the judge reported: “JM does not want to die. When I told him of my decision and the fact that he would die, he told me without prompt or question that he did not want to. I formed the impression that he very much wanted to live. Ultimately, all I could do was tell him that the decision was his.”

Now, you may be asking why someone who lacks capacity to make the decision will then be told that the decision is theirs to make, and why – in the face of JM wanting to live– the judge decided against options that were more forceful and would have secured JM’s life?

In his judgement, Mr Justice Hayden cited that the imposition of the alternative options would, ultimately compromise JM’s dignity (which I also imagine is a factor in why he wanted to give JM the absolute choice to engage with dialysis or not) . He also said: “JM’s belief system in respect of dialysis is so plainly distorted as to manifestly rebut the presumption of capacity, erected by the MCA 2005. However, even though his reasoning is unsound, JM’s confidence and belief in his own judgment is well-established and as the chronology of the case has demonstrated, unmoveable. The fact that an individual’s views may be misconceived does not, however, deprive him of the right to hold them.”

“To approach this otherwise would particularly discriminate against the incapacitous, as well as more generally. JM’s views on dialysis arise from the complex interplay of his psychological functioning and his life experiences. This is no doubt true for all of us but in JM’s case, both are disordered. The nature and extent of JM’s autism coupled with the extent of trauma that he has endured, serves to disable him from processing his thoughts and experience in an effective way. Nonetheless, JM’s own reality, even though it greatly differs from ours, requires to be respected.”

As mentioned in Airedale NHS Trust v Bland [1993] 30 years ago “the law contains the strong presumption that all steps will be taken to preserve human life unless circumstances are exceptional. However, the principle is not absolute and may yield to other considerations”. As we can see in JM’s case – like Wye Valley NHS Trust and Mr. B [2015] and A Mental Health Trust v BG [2022], as a recent example involving another young person – a further precedent has been set in relation to best interests and how a person’s views in life or death situations can be truly determinative, irrespective of how irrational these views may be.

Kind regards,
Owen Stott

July – Fluctuating capacity and executive function

MCA Team Digest

I am sure you will have all benefitted greatly from the email’s Ian has previously sent out, where he has honed in on, elucidated and linked the key themes, issues and debates from case reports to practice. As the new MCA Lead, I intend to carry the baton and will seek to provide my own digest whenever a significant case law development occurs that pertains to a particularly significant issue; or a recurring theme that colleagues have been grappling with. These emails will not be sent at set intervals, rather I will be guided by the collective needs of colleagues in the council or by the emergence of notable judgements. I am also in the process – very slowly but surely – of creating Bradford Council’s own Case Law Dictionary/Database, which I intend to make available on the shared network drive and will replace the need for frequent updates.

I digress. As can be found at the link below and embedded here , Alex Ruck-Keene et al, report on a recent case related to fluctuating capacity, A Local Authority v PG & Ors [2023] EWCOP 9. PG was ultimately determined to lack capacity, and there are some interesting issues broached here which I will explore below.

As an aside, queries about fluctuating capacity are amongst the more common that we receive in the MCA/DoLS team, which further necessitates this email and the subsequent length and detail of this. My intention is that this can be viewed as a practice reference guide, of sorts, contribute to CPD and will hopefully provide your teams and staff with some clarity about assessing fluctuating capacity. Essex Chambers have published some guidance on this at page 13 here and a dedicated document here for those of you who want sight of additional resources.

DISCLAIMER – Nothing within this email constitutes legal advice, which should be sought if in any doubt, particularly where fluctuating capacity and high risk is present.

Within this overview, the following areas are addressed and can be navigated to by scrolling to the underlined subheadings in bold:

• The cause of PG’s impaired decision making – diagnostic factors as contributing to fluctuating capacity
• What case law says about fluctuating capacity – An overview of 3 important cases that relate to fluctuating capacity
• So what do this mean for PG and what does PG mean for us? – Looking at the main outcomes from A Local Authority v PG
• Fluctuating capacity and executive functioning – A brief summary of the difference and some tips for assessing capacity

The cause of PG’s impaired decision making

Before I get into the main body of the email, just a quick word on the ‘diagnostic’ cause of PG’s inability to make the decision.

PG both consumed excessive alcohol and also had a mental impairment. Alex Ruck-Keene et al. write: “The court was satisfied that it was not possible to disentangle the influence of alcohol from the impact of her mental impairment. If the evidence had been that the woman only lacked capacity at times when she was intoxicated then the position would be different, but that was not the evidence. No party argued that the 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 2005”.

This is a notable point in that it indirectly reiterates that a diagnosed mental impairment isn’t necessarily needed under the ‘diagnostic’ stage of the capacity assessment where someone is unable to make a decision. As you will know, a diagnosed mental impairment also isn’t grounds for someone to lack, or to have fluctuating, capacity. The PG judgement does recognise that alcohol dependency can be an influencing factor over someone’s decision making ability, particularly in the context of fluctuating capacity. That said, how alcohol affects cognition and decision making will typically be different to how a diagnosed mental impairment affects this and it also speaks to situations where people may have a dual diagnosis. In these cases, it is vital to be as clear as possible as to what is causing the lack of capacity and the dynamic between the mental impairment and the alcohol or substance misuse.

What case law says about fluctuating capacity

Within the PG case report, reference is made to three key cases that address fluctuating capacity which the judge considered for PG. This is telling – the fact the judge viewed them as relevant indicates the weight given to these in setting a precedence; therefore practitioners can be relatively confident in using these as touchstones when involved with cases where fluctuating capacity may be the issue. (N.B. As you will see, 2019 was clearly a vintage year for fluctuating capacity cases!).

Before summarising the key learning from the PG case, it is important to discuss the three cases that were referred to in this judgement for they very much provide us with some parameters for capacity assessments in this area:

• RB Greenwich v CDM [2019] – This introduced the notion of ‘Micro’ vs ‘Macro’ decisions (or the “global decision” as Newton J described this in the case). This case lays grounds for zooming out and viewing capacity at a macro-level, accounting for the interrelated nature of various decisions as part of a broader decision. For example, Newton J identified “On the assessment of capacity to make decisions about diabetes management, in all its health consequences, the matter is a global decision, arising from the inter dependence of diet; testing her blood glucose and ketone levels; administration of insulin; and, admission to hospital when necessary in the light of blood glucose levels.” Interestingly, the judge concluded that the issue for CDM didn’t actually boil down to her having fluctuating capacity. It was the judge in the first hearing who posited that she had fluctuating capacity and Newton J took a different view: “if the court accepts the expert’s opinions, as I do, and approaches the matter on the basis of their conclusions, logically, legally and practically, it is a macro-decision, and CDM lacks capacity to take the macro-decision, the issue of fluctuating capacity simply does not arise.” The judge’s logic here is that just because someone may have the capacity to make micro decisions, it doesn’t mean that at any point they have capacity to make the macro decision. Fluctuating capacity, therefore, would only apply as a valid label for CDM if she was to have capacity to make the macro decision some of the time and to then lack capacity for the macro decision at other times.

Although the judge identified this case is unlikely to be capable of easy application to other scenarios (social workers shouldn’t be assessing capacity for diabetes management), I contend that it can relate to adult social care scenarios and you can apply the logic from this judgement in other instances. The ‘macro’ decision approach would apply to many of the people we work with who might have particularly complicated physical and/or mental health conditions that require ongoing management as part of their care arrangements. I would argue that management of their health conditions (with the various decisions needed to oversee these) could be considered as relevant information as part of a capacity assessment on their care and support needs.

It can also apply to financial decision making – the person may have the capacity to make smaller decisions about daily transactions, but what about this in the context of broader financial management (the macro decision)? It could also apply to signing tenancy agreements for example: it’s possible someone could make the micro-decision regarding consenting to some parts of a tenancy agreement but, when zooming out, there may be other aspects of this that they lack capacity in relation to as part of the bigger decision. I can also see how the micro/macro approach could apply to safeguarding, where issues with self-neglect, acts of omission etc are the result of potential lack of clarity about someone’s capacity. I.e. they are assumed to have capacity to make a decision as they can make some micro decisions, but the broader macro decision hasn’t been properly considered.

In applying the micro/macro approach, my advice would be to identify the bigger decision and then, with a degree of detail, break this down into the essential micro-decisions as part of this – exactly in the way the judge did regarding diabetes management. As with CDM, it may then be the case that fluctuating capacity isn’t the issue; it’s simply that the person is unable to make the decision at any point. I would advise caution though. It’s possible that identification of unnecessary micro-decisions would directly and unfairly raise the bar/threshold for capacity.

• Cheshire West And Chester Council v PWK [2019] – This judgement refers to taking “a longitudinal view” of capacity. That is, the person’s ability to make the decisions over time. Unlike the CDM case, this does address fluctuating capacity in the commonly understood sense. This case also talks about isolated (one off decisions) and ongoing decisions. This is a crucial distinction – if someone has fluctuating capacity and there is a one off decision to be made, then the approach here is that you wait until the person has capacity to make that one-off decision (unless the decision is of critical urgency).

PWK is a man who had periods of time where he could make decisions (when he was relaxed and calm), however when he was anxious (which could be bought on by various triggers at various times) he was deemed as unable to make ongoing decisions as related to his care, contact, social media etc. This is what the judge said in his judgement, where he ultimately determined that PWK lacked capacity to make ongoing decisions: “there would be times when a snapshot of his condition would reveal an ability to manage his affairs. But the general concept of managing affairs is an ongoing act and, therefore, quite unlike the specific act of making a will or making an enduring power of attorney. The management of affairs relates to a continuous state of affairs whose demands may be unpredictable and may occasionally be urgent. In the context of the evidence that I have, I am not satisfied that he has capacity to manage his affairs.”

The longitudinal approach is a useful way to view and frame fluctuating capacity and it has direct relevance to many of the capacity assessments that colleagues will undertake in Bradford Council. Ongoing decisions related to care, accommodation, contact, internet use, finance, DoLS/Community DoLS etc. form the core of capacity assessments social care staff undertake. It is also a crucial safeguard in avoiding assessing someone’s capacity when they’re in their ‘optimum’ state alone. Whilst we should, of course, be assessing people’s capacity when they are at their best, we also need to think about their ability to make that same decision at other times, otherwise we could have a very skewed, limited – and potentially irresponsible – approach to assessing capacity. What if we assess someone as having capacity to make a decision regarding contact with others based on seeing them between 9 and 10 – when they are alert – but then they are highly confused, disoriented and unlikely to be able to make the decision for the other 23 hours? Does this person really have capacity? I’d argue not. Are they only likely to be having contact with others between 9 and 10? Almost certainly not. Could there be quite significant consequences for that person as a result of viewing them as having capacity for contact when, in reality, they don’t? Maybe, yes. I am sure you see my point here. Capacity assessments need to reflect the nature, scope and time factors spanning a person’s decision making; a biographical approach to capacity assessments accounting for the chronologies of decision making is needed and if someone may have fluctuating capacity it’s important to see them at various times of day, when the decision will be taken.

To expand on this, consideration needs to be given to how much of the time the person actually has capacity vs not having this. For example, if a person is able to make the decision 85% of the time, but predictably loses capacity the other 15% of the time, then it could be argued that they actually have capacity to make the decision. For example, if a person who is in a care home can give consent for their care and accommodation arrangements from when they wake up to later in the evening, only losing capacity when they experience ‘sundowning’, then it would appear to me that they can make the decision. It would unduly infringe on their autonomy to view them as lacking capacity when they can actually make the decision the vast majority of the time. However, if the balance were to tip and they were unable to give consent for most of the time then it would be more justified to identify that they lack capacity overall.

I do appreciate there are caveats though. What if there is no predictable pattern to when the person loses capacity and for how long they will lack capacity for? What if there seems to be a 50/50 split between when a person can and can’t make the decision? In these instances, you would need to exercise very sound professional judgement and it also very much depends on the specifics of the decision and the person’s circumstances (see the difference between PWK’s situation and DN’s situation below as an example of this). The higher the stakes, ramifications and level of risk, the more carefully you’d need to consider this.

The PWK case is also very helpful in that it can incorporate the micro/macro stance. In fact, I argue all capacity assessments, irrespective of whether there are concerns about fluctuating capacity, need to factor in the full range of micro-decisions that make up the macro decision. This is simply just good practice.

• Wakefield MDC v DN and MN [2019] – This is an interesting case that outlines how another judge viewed someone as having capacity despite having clear periods when they would lack capacity to make decisions. The other key focal point of this case involved a discussion about anticipatory declarations under section 15 of the MCA 2005 and the legalities of using the Inherent Jurisdiction of the High Court to prospectively authorise deprivations of liberty, but that’s another story!

DN, a young man described as having a severe form of autism, a general anxiety disorder and traits of emotionally unstable personality disorder would experience ‘meltdowns’. The court held that he did lack capacity during a meltdown, however this was not to the extent that he was deemed to lack capacity overall to consent to his care arrangements.

You will be justified in questioning why DN was deemed to have capacity, but PWK (above) was not. They are both individuals who undoubtedly had periods of time where they could make their own decisions and periods of time where they could not as result of their anxiety. To my mind – I cannot view the psychiatrist’s capacity assessment for DN – the conclusion on capacity will likely have come down to when DN lacks capacity, how frequently does this occur, how long does he lack capacity for and how predictable (or avoidable) are the situations where he lacks capacity? If the answer to these questions, respectively, are ‘not often’, ‘not long’ and ‘the triggers are predictable/avoidable/infrequent’, then it would make sense (taking a longitudinal perspective as per PWK) to say the person has capacity. I suspect this was the case for DN.

Why this case is of use, as part of wider analysis, is because it acts as a counterpoint to DN and magnifies how nuanced the longitudinal approach can be. Interestingly, DN’s situation is startlingly similar to a person whose capacity I assessed for the High Court last year. Within my report for that case, I wrote the following: “I think that there are times where Miss H will lack capacity to make these decisions but, to re-iterate, I do not believe there is enough evidence for me to rebut principle 1 and to suggest this leads to her overall inability to make decisions in respect of her care and residence for a long-enough period of time to determine her as lacking capacity overall. I believe that Miss H will have capacity for the majority of the time and, when she does lack capacity, will be very close to regaining this again in terms of the timescales.” This was a very simplified way of saying that the person I was involved with did not lose capacity very often, it was not always guaranteed that she would lose capacity (if the triggers were managed), and when she did lose capacity it was only for a relatively brief period (certainly not long enough for me to feel she lacked capacity longitudinally). For those of you that are interested, I do have an anonymised copy of the capacity report that I can share with you. I am also genuinely not seeking to blow my own trumpet, but the feedback from the judge and barristers about my capacity assessment was particularly effusive, so this report may give some of you reassurance and guidance for future capacity reports on fluctuating capacity.

So what do this mean for PG and what does PG mean for us?

 PG’s case is helpful in a few ways. First of all it consolidates the three pieces of case law above, giving some reassurance about the validity of adopting the stances in these cases. It also does not set a hierarchy or a preference for a particular case of those mentioned. Rather, PG’s case has a permissive and flexible view of how to incorporate the aforementioned case law when approaching fluctuating capacity. Alex Ruck Keene et al. state in the report: “Having analysed the facts of those cases, and considered those of the woman in question, the court did not think that one or other [case law] was the correct or indeed better approach. How an individual P’s capacity was analysed would turn on their presentation, and how the loss of capacity arose and manifested itself”. This in itself is an important take-away, and chimes with my point above about capacity assessments needing ‘to reflect the nature, scope and time factors spanning a person’s decision making; a biographical approach to capacity assessments accounting for the chronologies of decision making’.

Crucially, PG’s case also had an eye on what was practical and implementable and this is where things really start to crystalise. When assessing capacity we need to think about the times of day people will be making decisions, the other people who may be involved in assessing capacity at the time the decision needs to be made and what the outcomes of those decisions could be both in the short and long term. This is what the judge in PG’s case was particularly mindful of when determining PG’s capacity as per the report summary: “An anticipatory order would in practice be close to impossible for care workers to operate and would relate poorly to how the woman’s capacity fluctuated. The care workers would have to exercise a complicated in order to decide whether at any individual moment the woman did or did not have capacity. This might well vary depending on the individual care worker, and how much of the particular episode they had witnessed or not. The result would fail to protect her, probably have minimal benefit in protecting her autonomy and in practice make the law unworkable.”

This means that when working with someone who has fluctuating capacity you need to have an eye on how viable it is for others involved with that person – those, such as carers or family members, who may need to make judgements themselves about ongoing decision making where someone’s capacity flips from one moment to the next – to assess capacity and, therefore, determine how/whether to act in someone’s best interests or not. As I am sure you can appreciate, this could be a minefield, and speaks to the need to think carefully about how fluctuating capacity manifests in practice. This is also why the judge in PG, deemed it more ‘workable’ to say PG lacked capacity overall, but to ensure all actions were carried out as close to her wishes in her best interests. It is important to point out, though, that the type of case and decision as pertained to PG is particularly complex and would potentially require some legal advice in other scenarios like this.

Fluctuating capacity and executive functioning

In many situations where fluctuating capacity is mentioned, the term executive functioning is often never far behind. It is important, however, to point out that the two concepts are separate and a quick scan of some of the literature shows this – for example in two excellent resources on executive functioning (which are available here and here) there is no mention of fluctuating capacity. In much case law there are also distinctions drawn between the two; although it is recognised people who may have problems with executive functioning also may have fluctuating capacity, one does not automatically mean the other will follow.

Fluctuating capacity will often be present for people who are actually able to make a particular decision at times (so they will able to ‘talk the talk and walk the talk’ to borrow Neil Allen’s turn of phrase), but then will be unable to make that decision at other times (to ‘not talk the talk and not walk the talk’). Executive functioning (or dysfunction) is different. This will typically be the case where people are invariably able to “talk the talk and not walk the talk”. In other words, someone can make the decision in theory, but not be able to make the decision in practice.

Capacity assessments for executive dysfunction require particular consideration around whether the person’s decision making is caused by a cognitive impairment or if it the person is simply being human (being impulsive and making unwise decisions). How many of us have told a dentist that we won’t eat sugary food, that we will brush our teeth and that we know this will prevent tooth decay, only to then neglect this? How many people have acknowledged they shouldn’t do something (procrastinate, drink, smoke, eat unhealthy food, spend money we don’t have) only to then go and do this. Furthermore, how many of us have then sought to deny or lie about this to maintain the aura of being virtuous or to avoid of admonishment? All of us will have ‘talked the talk and not walked the talk’ at some point, but it doesn’t mean we were unable to make a decision. The same logic applies to assessing capacity for the people we work with (where they may/may not be issues with executive dysfunction).

In this vein, extreme caution is needed when attributing someone as lacking capacity because of executive dysfunction, which is why a highly robust level of evidence is needed to demonstrate the person’s continuous inability to make the decision over time, allied to considered application of the causative nexus. I also contend that a lot can be done to support someone to make their own decisions where executive dysfunction may affect decision making, in line with Principle 2 of the MCA 2005. Conversely, high levels of judgement and skill are also required to avoid situations where someone who genuinely can’t make a decision because of executive dysfunction is labelled as having capacity. As you can see – and will know – It is a particularly complicated area.

Whether you are working with someone who may have fluctuating capacity or executive dysfunction, a similar approach to assessing capacity can be employed for both:

• Assessing the person’s mental capacity over time and at various times of day (for executive dysfunction, in particular, being physically present with the person at the exact point they are making the decision to talk through their logic).
• Consideration of information/evidence from additional sources over time (friends, family, other professionals, care records, incidents etc.)
• Spotting patterns for impaired decision making (to identify times of day when certain decisions have been made or need to be made. Is there a trend, is it predictable/unpredictable? Are there avoidable triggers? How sustained are the periods of impaired decision making? And so on….)

Case law and policy as related to fluctuating capacity and executive functioning will, no doubt, continue to evolve and develop. I would encourage you to keep an eye out for case reports through Essex Chambers and other online sources, but rest assured I will also do my best to keep you abreast of any developments down the line.

39 Essex Chambers Mental Capacity Case Reports: issue 2 now out

Kind regards
Owen Stott