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Capacity and the limits of decision-specificity

Alex Ruck Keene examines what can be learned from a Court of Protection judge's ruling on whether a woman had capacity in a range of areas.

In Liverpool City Council v CMW [2021] EWCOP 50, Sir Mark Hedley had to consider whether a woman, CMW, who had recently turned 18 had capacity to make certain decisions in seven specific areas: the conduct of proceedings, the management of her affairs, her residence, her care, her contact with others, the use of social media and the internet and whether she could engage in sexual relations.

CMW’s childhood was identified as having been “very troubled” by Sir Mark Hedley, although the judgment was (deliberately) cagey about the details, save to identify that she had been the subject of a care order which had put in place restrictions around her contact, rolled forward upon her majority by interim orders within the Court of Protection pending the resolution of the question of her decision-making capacity in the domains identified above. She had had given birth to a baby boy shortly after turning 18, the birth being identified by Sir Mark Hedley as “probably the most important event” in her life – although the baby was the subject of Children Act proceedings and at that point in foster care.  The relationship with the father had been very important to her, although many had questioned whether it had been in her best interests; however, since the father had been arrested in connection with sexual offences (it not being clear whether CMW was the victim), there had been no contact between them and at the point that the case was before Sir Mark Hedley it appeared that neither desired contact with each other.

CMW had been diagnosed as having ADHD, foetal alcohol spectrum disorder as well as specific difficulties with cognition and speech and language. Her expressive language was identified as being quite good but her receptive and processing skills were said to be only those of a child aged 7 to 9. She did not, however, have a learning disability.

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Taking each aspect of capacity in turn:

Litigation capacity

Although there was no argument advanced that CMW had capacity to litigate the Court of Protection proceedings, Sir Mark Hedley did note that she had been found to have capacity conduct the family proceedings. He accepted the view of the expert, Dr Rippon that these two conclusions were consistent:

The issues in the family proceedings are clear and can be shortly stated. The issues in the Court of Protection are potentially much more complex and much longer lasting. I am quite satisfied that she lacks capacity to conduct these proceedings not only in terms of being unable to weigh the relevant issues but also of being unable to understand some of the key ingredients that would require to be weighed. Given the position of the parties, more than that does not require to be said.

Capacity to manage affairs

There was no argument about this, but Sir Mark Hedley noted that he considered “whether for example her use of money is merely illustrative of making unwise decisions but I am satisfied that viewed generally, she is unable to grasp all the key ingredients that will have to be weighed in order to make decisions as to her own affairs.”

Residence and care

This was identified as being “much more controversial”. Sir Mark Hedley noted that he had considered with care the decision of Theis J in LBX v K and L [2013] EWHC 3230 (Fam), in which Theis J set out the categories of information likely to be relevant to care and residence.  At paragraph 13, he observed that:

Generally speaking questions of care and residence are considered separately but there are cases in which they would be intimately related. If one took the example of a person with serious physical disabilities for whom the issue of residence would be inseparable from that of care, and one heard that the protected person was rejecting of care because they were unwilling or unable to recognise the necessity for it, that would inevitably impact on the question of capacity to make decisions about residence where care would be a key ingredient.

On the facts of the case before him, he found that to be the case, Sir Mark Hedley considering that CMW was “unable to understand that she needs the care that she has because she seriously overestimates her own ability to keep herself safe and to control her life and seriously underestimates the consequences for her welfare of independence.” Returning to his theme, he continued at paragraph 15:

When dealing particularly with severe emotional difficulties and deficits, it can be very artificial to assign the relevant questions to individual pigeonholes. They are deeply interrelated and have to be considered in the round. It would be artificial, and indeed wrong, in the case of CMW not consider residence and care together. It is her fundamental inability to grasp why she needs support and what would happen if she did not have it that underpins my finding that she lacks capacity in both these areas. She could not choose between packages of care because she seriously overestimates her ability to protect herself and seriously underestimates her own vulnerability.

Contact

Sir Mark Hedley found that, on the evidence before him, CMW lacked the capacity to make decisions as to contact. But he sought to respond to three broader points raised on CMW’s behalf by the Official Solicitor.

17. […] The first related to fluctuating capacity. Now, of course, CMW’s potential capacity will fluctuate depending on the extent to which she is either calm or distressed and this may indeed be something which has to be considered in future years, as there are grounds to anticipate improvement. At present, however, I am persuaded by Dr. Rippon’s view that, although potential capacity does fluctuate, even at her calmest, CMW does not achieve a level of functioning that would amount to having capacity in relation particularly to residence, care and contact.

18. The second matter is Miss Hirst’s apt reminder that CMW is only 18 and decisions about her capacity should take that into account. Of course teenagers are prone to make unwise decisions; it is often the most effective way to learn. However, in this case I am satisfied that CMW’s functioning is affected by matters far more profound than teenage angst. The driving forces are the consequences of ADHD and foetal alcohol spectrum disorder all compounded by complex trauma and language processing difficulties. In coming to that conclusion I have borne in mind the third factor namely the importance and relevance of support. That is certainly currently available to her and even with the advantage of that she remains unable to understand issues of risk and danger to herself.

Social media and the internet

Directing himself by reference to Re B [2019] EWCOP 3, Sir Mark Hedley identified that there was only one matter in the list of relevant information identified in that case which exercised him, namely “the question of understanding risk and danger to self.” Here, Sir Mark Hedley made clear that he did:

20. […] not think it right simply to infer from her difficulties in appreciating safety and risk in relation to care, residence and contact that it automatically deprives her of capacity in this area. This is a much more precise and restricted area and indeed with less call on abstract thought. Whilst I appreciate Dr. Rippon’s concerns, my conclusion on reflecting on this particular issue and the evidence around it is that I am not satisfied that it is been established that she lacks capacity in this area. It follows that I must conclude that she has capacity.

Sexual relations

This was in effect a non-issue as no argument was advanced to the effect that she lacked capacity to decide to engage in sexual relations.

Final observations

Sir Mark identified that:

25. This case has been for me far from easy. It evokes my deepest sympathy for CMW who is essentially the victim of the doings of others over 18 years and more. I have reminded myself that I have to decide issues of capacity without regard to the welfare consequences, as required by the decision of the Court Appeal in the York case (supra). Hard though I have found that, having reminded myself of the words of Baker J (as he then was) in PH v A Local Authority [2011] EWHC 1704 (COP) (at paragraph 16), that is what I have sought to do.

Comment

This judgment is a very good example of the difference between:

  1. A judgment serving, in effect, as an operational document setting out for the benefit of the parties the basis upon which the local authority should work with CMW; and
  2. A judgment serving as a record for wider society as to the basis upon which those conclusions had been reached.

As an operational document, the judgment is crisp and clear, cutting out extraneous background detail with which the local authority and the Official Solicitor on CMW’s behalf could be expected to be familiar, and which does not necessarily need to be more widely known. As a record for wider society, it is more challenging, lacking many of the contextual background details that might give light and shade to the contours of the picture. Some may find it useful in teasing out their thinking here to ask themselves what they consider the function of a judgment, and (if feeling particularly enthusiastic) perhaps also to have a read of this article.

Of perhaps wider interest than the facts of this case is the observation of Sir Mark Hedley about the dangers of seeking to break down interrelated decisions into pigeonholes. The Court of Appeal in Re B identified the danger with putting decisions into ‘silos’ of reaching mutually incompatible conclusions – Sir Mark goes one stage further here in identifying that there will be times when striving to achieve decision-specificity simply becomes both artificial and wrong. Of course, as so often in the field of mental capacity, it is a question of striking a balance, because being insufficiently sensitive to the nature of the decision(s) in question risks turning any analysis of capacity into a status test.

Alex Ruck Keene is a barrister at 39 Essex Chambers. This article first appeared on his Mental Capacity Law and Policy blog.

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