In a recent ruling, Calderdale Metropolitan Borough Council v LS (by the official solicitor as her litigation friend) and another, the Court of Protection determined that Stitch, a 31-year-old woman with mild intellectual disability, ADHD and a dysfunctional attachment style, lacked the capacity to make critical decisions about her life. These included decisions regarding her residence, care, contact with others (including her mother), use of the internet and social media and engaging in sexual relations. This decision, based on a comprehensive assessment of Stitch’s fluctuating capacity, applied the ‘longitudinal approach’, which emphasises the need to assess capacity in light of its variability over time.
Material Facts
Stitch’s case is marked by a complex history of fluctuating capacity. In previous court proceedings between 2019 and 2023, Stitch was assessed as having capacity in several areas of her life. However, after gaining more autonomy in 2023, her behaviour deteriorated, raising concerns about her ability to make informed and autonomous decisions. These concerns prompted Calderdale Metropolitan Borough Council to apply for new best interests declarations regarding Stitch’s capacity.
The court was presented with capacity assessments from social workers and an expert psychiatrist. These assessments suggested that Stitch’s intellectual disability and dysfunctional attachment style caused her capacity to fluctuate, necessitating a decision on whether she could consistently make decisions on her own behalf.
Submissions of the Parties
Calderdale Metropolitan Borough Council argued that Stitch lacked capacity across all relevant areas of decision-making, given her fluctuating abilities and the need for ongoing support to manage day-to-day decisions.
The Official Solicitor for Stitch took a nuanced approach, acknowledging that Stitch lacked capacity for certain complex areas such as litigation, internet use and sexual relations. However, the Official Solicitor contended that Stitch might still have capacity to make decisions about her residence, care and contact with her mother, provided she received the necessary support.
Finally, the Official Solicitor for Stitch’s mother argued that Stitch retained capacity for making decisions regarding contact with her mother, emphasising the importance of family relationships.
Court’s Decision
The court’s decision was grounded in the detailed evidence presented. The judge agreed that Stitch could not consistently understand, retain, use and weigh the information necessary to make decisions autonomously. Her intellectual disability and dysfunctional attachment style were significant contributors to this lack of capacity.
Applying the ‘longitudinal approach’, the court acknowledged that Stitch’s capacity fluctuated. While she might have the ability to make some decisions at certain points in time, her overall capacity was deemed insufficient to allow her to consistently make decisions about key aspects of her life without support.
The court ruled that Stitch lacked capacity across all the relevant areas:
- Residence and Care: She lacked the capacity to decide where she should live and the type of care she should receive, as these decisions required a level of understanding and consistency she could not demonstrate.
- Contact with Others, Including Her Mother: The court found that Stitch’s capacity to make decisions regarding contact with others, including her mother, was not stable enough to allow her to make these decisions independently.
- Internet Use and Social Media: The court found that Stitch lacked the capacity to use the internet and social media safely and responsibly, especially considering the risks of exploitation or harm.
- Sexual Relations: Similarly, the court determined that Stitch lacked capacity in the area of engaging in sexual relations, acknowledging that this is a highly complex area requiring a high degree of understanding and responsibility.
The court also emphasised that sexual education could be part of Stitch’s care plan, with the hope that this might help her regain capacity in this area over time.
Conclusion
This case highlights the importance of the Mental Capacity Act 2005 in protecting vulnerable individuals and ensuring that decisions made on their behalf are in their best interests. It underscores the court’s nuanced approach to capacity, particularly when dealing with fluctuating or decision-specific capacity.
The use of the ‘longitudinal approach’ in this case provides valuable guidance for future cases, emphasising the need to assess an individual’s capacity over time and in relation to specific decisions rather than assuming an all-or-nothing lack of capacity. The ruling also demonstrates the importance of providing appropriate support for individuals with fluctuating capacity, including the provision of educational or therapeutic interventions, such as sexual education, to help them regain autonomy where possible.
For professionals working with individuals who may lack capacity in some areas, this case serves as a reminder of the delicate balance between autonomy and protection, and the legal tools available to ensure that the rights and wellbeing of vulnerable individuals are safeguarded.
How can we help?
Amrik Basra is an Associate in our Private Litigation team.
At Nelsons, our team specialises in these types of disputes and includes members of The Association of Contentious Trust and Probate Specialists (ACTAPS). The team is also recommended by the independently researched publication, The Legal 500, as one of the top teams of specialists in the country.
If you have concerns about the above subject, don’t hesitate to get in touch with Amrik or a member of our expert Dispute Resolution team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
Contact us