Fluctuating Capacity And Revisiting Capacity Decisions

Case background

A recent case revisits the capacity of a Protected Party, who is a 31-year-old woman living in supported rented accommodation.

This is not the first time that the Protected Party’s capacity has been considered by the Court of Protection. The question of capacity was initially considered in 2019. During the most recent proceedings, the Judge focused on the Mental Capacity Act 2005 (‘MCA 2005’), which contains a presumption that an adult has full legal capacity to make decisions for themselves. When it comes to assessing capacity, it may be the case that the Protected Party’s capacity prevents them from making decisions on one thing but does not prevent them from making decisions on another. The areas of life in which decisions can be made are considered separately.

In this case, the areas of the Protected Party’s life and her capacity to make decisions focused on the following:

For these proceedings, the Protected Party was represented by the official solicitor, also acting as her litigation friend. A consultant forensic psychiatrist was instructed to provide her expert opinion in the proceedings.

An interim order was made under section 48 MCA 2005 that enabled the supported living to impose its existing support and protection framework around the Protected Party. The interim order limited the Protected Party’s access to her phone, access to the community with support, and restricted overnight stays at her mother’s house unless supported by her support workers.

During the proceedings in which the psychiatrist carried out her assessment, the Protected Party was given the opportunity to express her views, and the other parties to the dispute were also given the opportunity to do the same.

The psychiatrist considered each area set out above individually and provided the Court with a breakdown of each point with a conclusion on the Protected Party’s capacity for each.

In the 2023 proceedings, it was decided that the Protected Party had capacity in many areas of her life. The current proceedings came to light following social workers and carers looking after the Protected Party becoming concerned that her capacity fluctuated.

The Court’s findings

In the recent proceedings, the Court made the finding that the Protected Party lacks capacity in multiple areas. Areas that the Protected Party was deemed to not have capacity include contact with others, her use of the internet, and engaging in sexual relationships.

This recent case is an example of how capacity can fluctuate. In 2023, a different conclusion in respect of capacity was reached compared to the proceedings that have recently concluded, and even though this is the current position, this is not to say that later down the line, the question of capacity will be revisited.

It is important to understand that capacity can fluctuate and should be revisited to make sure that the right decisions are being made and are in the best interest of the Protected Party.