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.