Leicestershire County Council -v- P & Anor [2024] EWCOP 53 (T3)
P had fluctuating capacity in relation to decisions about her care and contact with others. P also had episodes where she would disassociate and put herself at risk. The Court of Protection has helpfully clarified that it does have jurisdiction to make anticipatory declarations, but provided guidance on the caution to be taken in doing so and the other frameworks available to protect both P and care providers.
Introduction
This case concerned P’s capacity to make decisions about her care and contact with others, and considered whether anticipatory declarations can be made, to be relied on at times when somebody with fluctuating capacity is deemed to lack capacity and places themselves at risk of harm.
Background
P had suffered significant trauma in her early life which had impacted her mental and psychological health. In her twenties she had a number of hospital admissions, she was diagnosed with Emotional Unstable Personality Disorder (EUPD) and made attempts to take her own life. P’s struggles continued and, in her forties, she was diagnosed with Bilateral Polyradicular Neuropathy. She had several admissions to a psychiatric hospital, including an admission for assessment pursuant to s.2 of the Mental Health Act 1983 (MHA).
It was in her fifties that P was diagnosed with Dissociative Identity Disorder (DID). She had further hospital admissions under s.2 or s.3 MHA and suicide attempts and then moved to a 24-hour placement with onsite therapy in 2022. After a number of incidents, P wished to leave, and her placement served notice.
In March 2023, P returned to her home with a support package in place. There were however several incidents, the care provider stopped providing support and there was concern for P’s welfare.
Proceedings
The application was brought by the local authority, with P and the ICB as parties. Interim declarations were made under s.48 of the MCA that P lacked capacity to make decisions about her care and accommodation and to litigate the proceedings.
Interestingly, at the beginning of the proceedings P applied to discharge the Official Solicitor as litigation friend, following the instructed expert concluding she had litigation capacity (save for when she disassociates). Mrs Justice Theis subsequently discharged the Official Solicitor from acting as P’s litigation friend, and P attended the hearing with support.
Evidence and Case Law
Although P was previously diagnosed with a DID, in oral evidence the expert consultant psychiatrist instructed (the expert) concluded this was more accurately described as Complex PTSD (CPTSD) with dissociative characteristics. The expert evidence concluded that P’s ability to make decisions fluctuated, notably during dissociative episodes.
There are two ways in which the court has been prepared to make capacity declarations in the circumstances of fluctuating capacity:
- by taking a longitudinal approach to capacity; or
- by making anticipatory declarations at a time when P has capacity in relation to a matter, to provide for a time when P is predicted to lose capacity.
The expert agreed that it was important to maintain P’s autonomy and there was a risk that if a longitudinal approach to capacity was taken, that defensive decisions would be taken by P.
Counsel for P submitted that the court should make anticipatory declarations. A declaration would confirm the lawfulness of the proposed crisis plan and allow carers to override P’s wishes and provide appropriate care to her in times when she was considered to lack capacity. Arguments similar to those made in Wakefield MDC -v- DN and MN [2019] EWHC 2306 in which the local authority sought anticipatory declarations, to authorise care staff to intervene when P had ‘meltdowns’, were made. It is notable that in that case, Cobb J made the orders sought stating it would
- …provide a proper legal framework for the care team, ensuring that any temporary periods of deprivation of liberty are duly authorised and thereby protecting them from civil liability.”
Conclusion
Mrs Justice Theis found that P lacked capacity to make decisions in relation to her medical care when dissociating however she did not make anticipatory declarations, indicating that P had the protection of s.5 and s.6 MCA. She concluded that using the MCA framework would be advantageous in that “decisions are taken contemporaneously 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 occasion as this case”.
Commentary
The key points which can be distilled from this Judgment are that:
- The Court of Protection does have jurisdiction to make anticipatory declarations under s.15 MCA but the use of this power is dependent on the facts of each case (as per para 137(5) of Theis J’s judgment).
- Anticipatory declarations are relevant in cases of fluctuating capacity.
- S.5 and s.6 MCA 2005 are not limited to emergency situations.
- In considering whether to make anticipatory declarations the court ought to have in mind that:
- The question as to when such declarations should be made are largely fact sensitive. The Court must consider the principles of the MCA and balance this with the need to preserve the autonomy of those at the centre of a case, who lack capacity.
- For instance, in Shrewsbury and Telford Hospital NHS Trust -v- T [2023] EWCOP 9, Lieven J refused to make an anticipatory declaration, as she deemed a ‘small risk’ was insufficient to justify such a declaration. Instead, relying on necessity or P making an advanced decision would be more proportionate. Frequency, predictability and duration of the episode of lost capacity should be considered.
- When making a declaration under s.15(c) and in considering the balance –
- The Court must consider if there are other ways of managing the situation, for example whether s.5 MCA can be utilised. N -v- A CCG [2017] UKSC 22 [38] sought to clarify that s.5 gives a general authority and will usually suffice, unless the decision is so serious that the court itself has said it must be brought to court. The provision is not limited to only addressing emergency situations, but there are limits to its use. Mrs Justice Theis explained that there is nothing preventing a crisis plan including the same information as an anticipatory declaration and whether an anticipatory declaration is provided or not, those on the ground will need to be undertaking the same capacity assessment with or without the anticipatory declaration.
- The Court must guard against the risk of P’s autonomy and the ability to make unwise, but capacitous, decisions being overridden by overtly protective decisions.
- Consideration must be given to whether the evidence provides sufficient precision as to the circumstances that P may lack capacity and when a best interest decision in relation to this would need to be made.
- The involvement of P is important. It is helpful to note that in this case, P (who had litigation capacity) made clear that she wished to be protected from the risks she faced when she was dissociating and thus lacked capacity to make relevant decisions. The judgment then approved the creation of a crisis plan. It would make clear that P wanted steps to be taken when she was deemed to lack capacity to make the relevant decisions, and such steps were necessary to protect her from harm.
How our healthcare lawyers can support you
If you’re experiencing any issues in relation to anticipatory declarations, our experienced public law lawyers can provide invaluable guidance and ongoing support.
For further information, please contact:
Alexandra Stanton, Hill Dickinson
alexandra.stanton@hilldickinson.com
