A Local Authority v PG & Ors
[2023] EWCOP 9
Leicestershire County Council v P & Anor (Capacity: Anticipatory declaration)
18 October 2024
[2024] EWCOP 53 (T3)
Court of Protection
A woman with a mental health condition sometimes loses the ability to make decisions about her care. The court considered giving carers permission in advance to make decisions for her when this happens. However, the court decided against it, saying it was too difficult to tell when she would lose capacity and that existing laws could be used instead. The court also highlighted the need for better communication and collaboration between the different care providers.
Key Facts
- •P suffers from Complex PTSD (CPTSD) with dissociative characteristics, leading to periods of dissociation where she loses capacity to make decisions about her care.
- •P has a history of significant trauma, including childhood abuse and alleged recent abuse.
- •The case concerns whether anticipatory declarations should be made regarding P's care when she dissociates and lacks capacity.
- •There is a lack of consistent engagement from the mental health team in P's care, with CDS effectively managing the situation for years.
- •The court considered the use of sections 5 and 6 MCA as alternative means of protecting P’s safety.
- •There is debate about the diagnosis and several experts give differing opinions.
Legal Principles
A person must be assumed to have capacity unless it is established that he lacks capacity.
Mental Capacity Act 2005 (MCA), s 1(2)
Capacity is decision-specific and time-specific.
MCA, sections 2 & 3; Hemachandran v University Hospitals Birmingham NHS Foundation Trust [2024] EWCA Civ 896
The court may make declarations as to whether a person has or lacks capacity and the lawfulness of any act done or yet to be done.
MCA, s 15
Sections 5 and 6 MCA provide a framework for acting in a person's best interests when they lack capacity, but this may not be sufficient for all situations.
MCA, s 5 & 6; N v A CCG [2017] UKSC 22
The court may make anticipatory declarations under s 15(c) MCA, even if the person has capacity at the time the declaration is made.
Various Court of Protection cases discussed in the judgment, including United Lincolnshire Hospitals NHS Trust v CD [2019] EWCOP 24; Wakefield MDC v DN and MN [2019] EWHC 2306; Guys and St Thomas’ NHS Foundation Trust v R [2020] EWCOP 4; A Local Authority v PG [2023] EWCOP 9; The Shrewsbury and Telford Hospital NHS Trust v T [2023] EWCOP 9
Outcomes
The court refused to make anticipatory declarations regarding P's care when she dissociates.
The court found too much uncertainty regarding when P loses capacity due to dissociation and how carers could reliably identify this. The court felt that reliance on sections 5 and 6 MCA, coupled with increased mental health team involvement, would be a more appropriate approach. The court emphasized the need to protect P's autonomy while ensuring her safety.
The court found that P has capacity most of the time but lacks capacity during periods of dissociation.
Based on evidence from Dr. Camden-Smith and others, the court found there is a causal link between P's dissociation and her inability to make decisions about her care in certain limited situations.