Leicestershire County Council v P & Anor [2024] EWCOP 53 (T3) is both an interesting and an important decision.
It is interesting because it is the first reported English[1] case considering Dissociative Identity Disorder and capacity (although, in fact, it appears that the appropriate diagnosis was Complex PTSD with dissociative characteristics).
It is important because Theis J, the Vice-President of the Court of Protection:
- Confirmed, (contrary to a slightly surprising submission on behalf of the local authority) that ss.5 and 6 MCA 2005 are not limited to emergency situations;
- Confirmed, (again, contrary to the submission on behalf of the local authority, and obiter observations of Mostyn J) that the Court of Protection does have jurisdiction to make ‘anticipatory’ declarations;
- Gave (at paragraph 137) useful guidance as to when the court should consider making anticipatory declarations, as follows:
(5) Whether the jurisdiction to make an anticipatory declaration should be exercised will depend on the facts of each case. The court will need to carefully consider the underlying principles of the MCA which is to protect and, where appropriate, make decisions for those who lack capacity in relation to a matter, but take all necessary steps to preserve the autonomy of those who have capacity. In The Shrewsbury and Telford Hospital NHS Trust Lieven J refused to make such a declaration as there was nothing more than a ‘small risk’ that the woman might lose capacity which was ‘insufficient’ to justify an anticipatory declaration, it risked the woman’s autonomy being overridden and there were other ways of managing the situation, such as inviting the woman to enter into an advanced declaration or relying on necessity.
(6) In deciding whether to exercise the jurisdiction under s15(c ) the court will need to carefully consider a number of factors, including:
(a) Whether there are other ways in managing the situation, for example whether s5 MCA can be utilised. As Lady Hale made clear in N v A CCG [2017] UKSC 22 [38] ‘…Section 5 of the 2005 Act gives a general authority, to act in relation to the care or treatment of P, to those caring for him who reasonably believe both that P lacks capacity in relation to the matter and that it will be in P’s best interests for the act to be done. This will usually suffice, unless the decision is so serious that the court itself has said it must be taken to court. But if there is a dispute (or if what is to be done amounts to a deprivation of liberty for which there is no authorisation under the “deprivation of liberty safeguards” in Schedule A1 to the 2005 Act) then it may be necessary to bring the case to court…’. This provision is not limited to only address emergency situations but there are clearly limits.
(b) The need to guard against any suggestion that P’s autonomy and ability to make unwise, but capacitous decisions is at risk or any suggestion that the court is making overtly protective decisions.
(c) To carefully consider the declaration being sought, and whether the evidence establishes with sufficient clarity the circumstances in which P may lack capacity and in the event that P does the circumstances in which contingent best interest decisions would need to be made. This is to guard against the risk that if the facts on the ground were analysed contemporaneously the court may reach a different conclusion.
- Declined, on the facts of the case, to make anticipatory declarations, and in so doing made observations which are of wider relevance:
138. [….] (6) P remains protected by the existing statutory framework in s5 and 6 MCA that give general authority to those caring for P who reasonably believe both that P lacks capacity in relation to the matter and that it will be in P’s best interests for the act to be done. Using this framework will have the advantage that decisions are taken contemporaneously both as to capacity and best interests, having up to date information on matters such as P’s wishes and are more appropriate to guard against such infrequent occasions as in this case. I recognise that s5 and 6 may not have been intended to provide a complete catch all means by which carers can implement a care plan and are arguably more designed to provide protection from liability for carers to carry out certain but not all tasks, but on the particular and unusual facts of this case that legal framework better provides for P as it has the advantage of decisions being made contemporaneously, particularly where, as here, the risks being guarded against happen relatively infrequently so need to be considered in the context of an extended time frame. I fully take into account the submission that by making an anticipatory declaration it could provide more certainty for carers but there is nothing preventing the crisis plan including the same information, whether or not an anticipatory declaration is made, as, in effect, the carers or others are going to need to be making the same capacity assessment whether a declaration is made or not.
These latter observations are particularly helpful, because they reflect, in fact, what happens in the majority of situations involving fluctuating capacity which do not come to court. If they are truly situations of fluctuating capacity (as to which see our guidance note at paragraphs 55 – 60), then those seeking to provide care and treatment to the person will inevitably be proceeding on the basis of whether they reasonably believe at the relevant point in time that the person has or lacks capacity to consent to the relevant intervention.
A further point of interest in the case is that the woman herself (who was found to have litigation capacity and was therefore instructing her representatives directly) made very clear that she wished to be protected from the risks that she was at the point when she was dissociating and therefore lacking capacity to make the relevant decisions (see paragraph 138(3). Whilst not framed in precisely these terms, the judgment was therefore endorsing the creation of an advance choice document (included within a crisis plan) in which the woman was, herself, making clear that she wished robust steps to be taken in the name of her best interests to protect her. Such advance care planning is something which can be equally important in the context of other conditions, such as bipolar disorder, where the person themselves can identify both when they are well and unwell, and also wishes to endorse robust steps to protect them (including from themselves) when unwell. This can give rise to ethical dilemmas (see this Radio 4 documentary), but can be enormously important in arming social care and health professionals with the knowledge that they are doing the ‘right thing’ at the time that the person is unwell.
[1] There had been a previous reported case from Northern Ireland: A Health and Social Care Trust v P and R [2015] NIFam 19.