Anticipating the reasonableness of responses – time-specific capacity in action

The facts of Darlington Borough Council v AW & Ors [2025] EWCOP 33 (T3), decided in August 2025, but only published more recently, are disturbing, both in the depths of the despair that they illuminated on the part of the young person involved, and also for the fact that they are by no means uncommon.  They also, to the extent relevant, reinforce the propositions set out in the Law Commission's Disabled Children's Social Care report that something is clearly not working as regards those moving towards adulthood and whose needs straddle the social and health care divide.

The young person in question, AW, having been the subject of inherent jurisdiction proceedings during her late adolescence, had now turned 18. At that point, her capacity to make relevant decisions assumed a new importance. The independent expert, Dr Ince, opined as follows at paragraph 34:

a. AW has capacity to conduct the proceedings.  Dr Ince applies the presumption of capacity and notes that on the three occasions he assessed AW she was able to understand, retain and use and weigh the relevant information. 

b. AW has capacity to make decisions on her residence.  The presumption of capacity is not rebutted. 

c. In relation to care, AW is able to understand and retain the relevant information.  However, in response to specific triggers, AW was unable effectively to use and weigh the relevant information.  However, those periods, if she is supported, should be broadly avoidable or if they do occur, will be short lived.  This is not a pass on a fluctuating capacity.  However, Dr Ince asserted that there is on an “interim basis” sufficient evidence to rebut the presumption of capacity as a consequence of contextually predictable episodes in which AW displays executive function secondary to her trauma and neurodevelopment disorders. 

d. In relation to contact as a global and general decision, AW’s capacity is not absent.  However in moments of emotional arousal, mistrust or relational stress her ability to appraise information is impaired and episodically disrupted.  On this decision, AW’s presentation is consistent with trauma related executive disfunction and the known difficulties that autistic individuals may experience when navigating relational ambiguity, safeguarding intervention and emotionally nuanced social context.  “It would be a categorical error to interpret her minimisation or brief responses as a lack of capacity per say; rather, these must be seen as context and communication patterns that require sensitive interpretation.

e. In relation to contact with SP and NY, Dr Ince concluded that AW lacks capacity to make the decision on contact with both. 

f. AW has capacity to engage in sexual relations. 

35. Dr Ince concluded that AW has a confirmed diagnosis of ASD.  In relation to this diagnosis AW’s presentation is characterised by sensory sensitivity, cognitive rigidity, marked difficulties with transitions and relational boundaries and atypical executive function.  There is evidence of difficulties with interoceptive awareness, a concrete thinking style and emotional processing deficits all consistent with the autistic profile.  AW also meets the criteria for Complex Post Traumatic Stress Disorder.  The experiences which have led to this traumatic stress disorder results in an affective instability, a negative self-concept, relational hypervigilance and a pattern of maladaptive coping strategies to include self-injury, disordered eating and social withdrawal.  AW also presents with disordered eating behaviours, most closely aligned with Atypical Anorexia Nervosa.   

36. Dr Ince concluded that overall, AW presents with a constellation of interacting difficulties, to include Autism, developmental trauma, effective instability and relational risks.  The conditions do not exist in isolation and her presentation is not adequately captured by one diagnostic label.  AW’s functional profile varies significantly depending on emotional state, environmental stability, relational safety and perceived autonomy.  These factors form the causative nexus between the diagnostic and the functional test.   

37. Dr Ince provided a further report on the 6 May 2025 responding to a significant number of questions of clarification which had been raised.  In summary: 

a. Dr Ince repeated his findings that AW lacked [note, this must be a typo for ‘did not lack’] capacity to conduct the proceedings but if subject matter capacity is compromised (such as on care) then AW may not have capacity and this would be caused by episodes of dysregulation. 

b. AW’s starvation has significant impact on cognitive functioning and emotional regulation. The cumulative effect of proposed nutritional deprivation likely impaired her ability to use and weigh relevant information effectively during periods of acute malnutrition.  However, AW’s decision not to eat or take nutrition were rooted in authentic, consensually rational decision making informed by lived experience.  The evidence suggests that this decision reflects a capacity as to decision making.  

c. There are periods when AW has capacity to make decisions on care and support and contact and periods when she does not.  These periods are not random but contextually predictable arising in specific identifiable circumstances such as relational rupture and perceived threats to her autonomy. 

Importantly, Dr Ince considered that:

d. Anticipatory declarations could be operationalised effectively for AW provided that the care team is furnished with a clear, objective criteria and is supported by ongoing training to maintain vigilance and procedural accuracy. 

The reference to “anticipatory declarations” was a reference to the body of case law (summarised helpfully by Henke J) in which the Court of Protection has concluded that it has jurisdiction to make declarations about the lawfulness of actions to be carried out when a currently capacitous person ceases to have that capacity.[1]

However, ultimately, the parties before Henke J – and the judge herself – considered that this was not a case in which such declarations could be made. Whilst she accepted that had the jurisdiction to do so, she declined to do so:

57. In this case I have jurisdiction to make anticipatory declarations, but I decline to do so.  Sections 5 and 6 MCA can be used to manage the circumstances of this case and any future crisis that AW may suffer. Whilst AW has put herself at risk in the past, I have reminded myself that I must guard against any suggestion that unwise decision-making is analogous to decision-making without capacity. Capacitous adults may make wise or unwise decisions. The point is that they have the capacity to choose and make informed decisions however unwise. I have reminded myself that I must guard against the protection imperative and paternalistic decision-making. I must respect AW’s autonomy. I have carefully considered whether the evidence establishes with sufficient clarity the circumstances in which AW may lack capacity and in the event that AW does, the circumstances in which contingent best interest decisions would need to be made. I have concluded based on the evidence as a whole, of which Dr Ince’s evidence is a significant part, that the evidence in this case does not provide that sufficient clarity. Accordingly, I decline to make anticipatory declarations which, on the evidence, would not be practical to implement.

The application for anticipator declarations was therefore dismissed.

Henke J observed of AW that:

59. She is an intelligent young person who was delighted to have her capacity and thus her autonomy recognised. She remained willing to accept the support offered to her by the statutory agencies and those statutory agencies remained committed to her. AW’s parents were in agreement with my decision-making.

60. I have written this judgment to enable AW to have a brief record of court proceedings which were before the court for a year. During that time AW was deprived of her liberty first under the Inherent Jurisdiction relating to children (s.100 Children Act 1989) and later in the Court of Protection wherein it was declared in the interim that she lacked capacity in the relevant domains. However, once the expert evidence had been finalised and tested before the court, it became apparent that in her case the evidence did not support the presumption of capacity being displaced. AW is an adult now with capacity, able to make good and bad choices about her own future. I wished her well on 22 May 2025 and I do so again as I end this judgment.

Comment

This case, as with Leicestershire CC v P and Another (Capacity: Anticipatory Declaration) [2024] EWCOP 53, is a very helpful reminder that ss.5 and 6 MCA 2005 are the ‘first line’ tools established by Parliament to grapple with the care and treatment of those with impaired decision-making capacity. And, within this, it is important to recall that they provide protection from liability (and hence, in effect, a power to act) where the actor ‘reasonably believes’ that the person lacks the relevant capacity, and that their actions are in the person’s best interests. As the Court of Appeal observed in Commissioner of Police for the Metropolis v ZH [2013] EWCA Civ 69:

40. A striking feature of the statutory defence is the extent to which it is pervaded by the concepts of reasonableness, practicability and appropriateness. Strict liability has no place here. Of particular relevance to the present case is the fact that D is under no liability to P in tort for an act done in connection with the care or treatment of P, if he reasonably believes that it will be in P’s best interests for the act to be done; and (in the case of restraint) if he reasonably believes that it is necessary to do the act in order to prevent harm to P; and he is obliged to take into account the views of, amongst others, anyone caring for P, but only if it is practicable and appropriate to consult the carer.

When the law says ‘reasonable belief,’ it is the law’s code for ‘we do not expect perfection, but a coherent explanation.’ In the context of a situation such that of AW, where it appears on the basis of the evidence set out in the judgment that crises leading to impaired decision-making capacity could be unpredictable, it might be thought that this provides exactly the framework required to manage the situation. In AW’s case, as in the Leicestershire case, it might also be hoped that those working with AW are able to work with her to set out anticipatory care plans to make clear her wishes in the event that she does experience another crisis, as such then make it even clearer what the ‘right’ course of action would be at such point.

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

[1] Although, as per Hayden J in GSTT & SLAM v R [2020] EWCOP 4, any declarations as to the lawfulness of deprivation of liberty arising in such periods have to be made by the High Court exercising its inherent jurisdiction.