Leicestershire County Council v P & Anor (Capacity: Anticipatory declaration)
[2024] EWCOP 53 (T3)
A Local Authority v PG & Ors
10 March 2023
[2023] EWCOP 9
High Court
A woman with disabilities sometimes makes good decisions, sometimes bad ones, especially when she's stressed or anxious. The judge decided she needs help making decisions because of her mental health, but that those helping her should try to let her make her own choices as much as possible while keeping her safe.
Key Facts
- •PG is a 34-year-old woman with an intellectual disability, autism spectrum disorder, and trauma-based mental illness with EUPD traits.
- •The Local Authority (LA) is concerned about PG's capacity to make decisions about her care and contact with others, particularly during times of heightened anxiety.
- •PG has a history of self-harm, suicidal ideation, and risky behavior in the community, including alcohol and potential drug use.
- •PG currently resides in a supported living placement with 2:1 support for 15 hours and 1:1 support for 9 hours.
- •There is disagreement among parties about whether PG has capacity to make decisions regarding care and contact with others, especially during periods of heightened anxiety.
Legal Principles
A person must be assumed to have capacity unless it is established that they lack capacity.
Mental Capacity Act 2005 (MCA)
A person is unable to make a decision for themselves if they cannot understand relevant information, retain it, use or weigh it, or communicate their decision.
MCA
A person is not to be treated as unable to make a decision merely because they make an unwise decision.
MCA
Decisions made under the MCA for a person lacking capacity must be in their best interests and as unrestrictive as possible.
MCA
In cases of fluctuating capacity, a 'longitudinal view' can be taken, considering the person's overall ability to make decisions over time.
Cheshire West v PWK [2019] EWCOP 57
Anticipatory declarations can be made to address capacity issues during periods of 'meltdowns' or heightened anxiety.
Wakefield MDC v DN and MN [2019] EWHC 2306 (Fam)
Outcomes
PG lacks capacity in relation to decisions about her care and contact with others.
Based on Dr King's evidence and a longitudinal view of PG's fluctuating capacity, the court found that PG lacks capacity, particularly when anxious or emotionally dysregulated, due to her mental impairments. An anticipatory declaration was deemed unworkable.
Care workers should protect PG's autonomy to the greatest extent possible while ensuring her safety.
The court prioritized a practical approach that balances PG's autonomy with the need for protection during periods of incapacity.