Fluctuating capacity: another Court of Protection decision

A new decision in the Court of Protection has raised the complex issues arising from an individual’s fluctuating capacity. The decision provides a helpful review of the case law relating to mental capacity.

The facts

The case of A Local Authority v H [2023] relates to H, a young adult ‘natal male’ who identifies as a woman and prefers to be known by female pronouns.  In her life so far, H has experienced significant trauma and abuse. H has diagnoses of global developmental delay, attention deficit hyperactivity disorder, executive dysfunction, developmental trauma disorder and possibly emotional unstable personality disorder. H has also displayed ‘traits of autism spectrum condition, extremely disordered attachment, and highly disrupted emotional regulation’.  H has been assessed as being at ‘a real risk of [causing] sexual harm to children, both in contact with them and online’. At H’s current placement, she has seemed to settle well and feels supported by staff.

The issues

The Court of Protection was asked to consider whether H has capacity to make decisions regarding where she lived, her care and support, her contact with others (adults and children), and her use of the internet and social media. 

H’s solicitor informed the Court that H does not like to be perceived as incapacitous.  H herself has expressed views on the issues in question and has consented to the restrictions put in place over her daily life.  However, it was the view of H’s psychiatrist that H has not yet achieved capacity, although she does believe that H was progressing towards it. 

Mr Justice Hayden presented a brief review of the relevant case law on capacity and commented that in the cases of vulnerable adults, ‘the danger of elevating the instinctive need to protect a vulnerable adult to such a degree that it corrupts the integrity of an objective assessment of capacity, is an ever-present danger in this sphere of work’.  The emphasis must always be on protecting the autonomy of the individual.

The outcome

The Court found that when H’s emotions are ‘dysregulated’, she does not have capacity. Ultimately, it was Mr Justice Hayden’s view that ‘H… has some insights into her behaviour but that it remains incomplete’.  An optimistic view was taken of H’s capacity in the future, primarily based on her co-operation with her care plan and H’s psychiatrist’s opinion that H was ‘progressing towards [capacity]’. 

However, at the time of this judgment, Mr Justice Hayden concurred with the view of H’s psychiatrist, and the presumption of H’s capacity was rebutted.    

Comment

This case highlights the issues the Court must consider in cases under the Mental Capacity Act  2005 (MCA) when faced with the question of an individual’s fluctuating capacity.  The decision emphasises that the Court’s role is a balancing act between protecting the individual’s right to make decisions and protecting the individual’s best interests.

If you require support on matters concerning mental capacity law, please do not hesitate to get in touch with our team of experts.