Meg Edwards, Solicitor in our Contested Wills, Trusts and Estates team discusses a recent, very sensitive welfare case considered by the Court of Protection.
The Court of Protection has recently ruled on an extremely sensitive welfare matter. The court was required to decide whether the protected party, ‘H’, had capacity to make decisions relating to their:
- contact with others (adults and children); and
- use of internet and social media.
It was ultimately decided that H did not have capacity to make these decisions. The judgment serves as a useful reminder of some of the key principles and caselaw which the court will consider in its ruling, the main factor being that decisions relating to capacity must be made on an objective, case and fact-specific basis.
H was a natal male who identified as female. Although only 19 years old, H had experienced a life of trauma, abuse and neglect at the hands of their biological parents. This resulted in H spending their childhood in foster homes, which caused further trauma when they were abruptly removed from long-term foster carers. This understandably had a significant and detrimental effect on H’s mental wellbeing.
H was noted as suffering from various complex psychological conditions, likely caused by their troubled childhood. These included global development delay, ADHD, executive dysfunction, developmental trauma disorder, traits of autism and disordered attachment and highly disrupted emotional regulation. As a result, H’s behaviour was described as extremely volatile to the extent that they posed harm to themselves and to others.
H had expressed a sexual interest in children and minors and their psychiatrist considered that there was an ‘extremely high risk of [H] sex offending against children’ both in person and online. There was also an ongoing police investigation concerning H’s possession of indecent images of children on their laptop. Having said this, the extent to which H’s accounts of abusing children were true was not clear and the psychiatrist considered that H may have been recounting their own experiences.
H’s liberty was restricted, and they were, at the time of judgment, supervised on a 2:1 ratio (this was an improvement as they had previously been supervised on a 3:1 ratio).
The judge commented that the restrictions on H’s liberty would be ‘intolerable’ for most people, but that H dealt with them well, probably due to seeing the measures to be a form of safety and security.
He also made reference to the improvements H had made over the last three years. They had previously engaged in aggressive behaviour and struck out at others, self-harmed and threatened suicide but these behaviours were now less frequent. Having said this, there were still instances of difficulty. For example, they had become aggressive and assaulted a staff member and was facing a charge of assault as a result.
So, did H have capacity to make the decisions relating to her?
Notable from the judgment was Mr Justice Hayden’s enthusiasm to engage with H during the proceedings and to provide a judgment which H could follow. He detailed how H had attended chambers with their solicitor and support worker.
H had their own opinions relating to residence and support which were indicative of an understanding of their current position. However, Mr Justice Haydn decided that when dysregulated, H did not have capacity and the ongoing risk of H engaging in sexual offences against children was high.
This led to the court considering whether H had fluctuating capacity, which, understandably, is difficult to assess.
He also clarified the position as set out in Kings College Hospital NHS Foundation Trust v C  EWCOP 80, in that, although a psychiatrist’s evidence will often be conclusive of an impairment of mind, it is the court who ultimately decides on P’s capacity.
Principles and caselaw considered
A number of important cases were considered before reaching a decision.
The first was A Local Authority v RS (Capacity)  EWCOP 29 which helpfully sets out eleven basic principles of the Mental Capacity Act 2005 and is a useful guide to work through when determining the issue of capacity.
A Local Authority v JB  UKSC 52 was also considered – a case in which the Supreme Court was required to consider capacity for the first time. It was determined in this case that:
- first, the court should consider P’s ability to make a decision in relation to a particular matter (rather than in general); and
- then, and only if it is considered that P lacks the functional ability to make that particular decision, causation should be considered – that is, the court should consider ‘whether that inability is caused by an impairment of or disturbance in the functioning of P’s mind/brain.’
Therefore, it is essential that, before considering P’s capacity, the court understands the decision that P is required to make and the information relevant to that decision.
The information relevant to a decision is set out in section 3(4) of the Mental Capacity Act 2005 which states that it ‘includes information about the reasonably foreseeable consequences of—
(a) deciding one way or another, or
(b) failing to make the decision.’
However, it is not essential for a person to have weighed up every single detail of information available to them (CC v KK and STCC  EWHC 2136 (COP)) to be considered to have capacity, and there should be a limit on the ‘reasonably foreseeable consequences’ of a particular decision.
When considering fluctuating capacity, Mr Justice Hayden again emphasised the importance of assessing P in relation to a specific decision at a specific time.
Anonymity of H
Another important element covered in the judgment, and which has been discussed in a number of recent Court of Protection judgments, was H’s right to anonymity.
Given the sensitive nature of the case, the court only permitted legal bloggers and accredited journalists to remain in court with reporting only being permitted once the case had concluded. This was to minimise the risk of H being identified. The weight being given to P’s identity in recent times is a reminder that the Court of Protection’s jurisdiction is to protect the best interests of the most vulnerable in our society and is not a matter to be taken lightly.