Anticipatory declarations, reliance on sections 5 & 6 of the Mental Capacity Act 2005 and fluctuating capacity

Background

Leicestershire County Council (“the Council”) issued proceedings in the Court of Protection (“the Court”) regarding P’s ability to make decisions about her care, accommodation and contact. P was found to have litigation capacity. P suffered from Dissociative Identity Disorder (DID), although in her oral evidence the jointly instructed expert Consultant Psychiatrist said a more accurate description was Complex PTSD (CPTSD) with dissociative characteristics.

As part of the dissociative behaviour, P would often disappear and return at a later point with no memory of where she had been or with whom. At the end of the oral evidence all parties agreed that when P did not dissociate she had capacity. The issue between the parties is what the position is when P does dissociate, whether:

1. If P lacks capacity when she disassociates, the Court can, or should, make an anticipatory declaration that in that situation P lacks capacity and best interest decisions will need to be made; and
2. The evidence demonstrated at most of the times that occurred P was able to manage the situation, for example by going to her bedroom, and was unlikely to be making decisions then or being asked to make decisions then about her care. In the relatively rare circumstances where P may be putting herself at risk of harm when she disassociates, there are sufficient safeguards in the existing statutory framework under sections 5 and 6 of the MCA.

Evidence and Legal framework

It was noted by Justice Theis that meeting with P prior to the hearing particularly helpful as P was able to explain with care the difficulties and frustrations she felt regarding the situation she was in.

Theis J did not consider that the uncertainty around diagnosis in relation to P’s impairment or disturbance of the mind had no material consequence, as there remained a causal nexus between the cause and the consequences namely, when P dissociated the symptoms outlined were the same in that they at times resulted in P losing capacity.

Drawing the evidential and legal threads together Theis J reached the following conclusions, set out at para 137:

“(1) Whilst most of the time P is able to make decisions about her care and contact with others there are limited times when she is unable to do so when she dissociates in the context of leaving the property in certain circumstances or seeks to admit visitors to it. In particular, at those times she is unable to properly weigh the relevant considerations, understand the significant risks and make decisions to keep herself safe which she recognises need to be made when she does not dissociate and has capacity.

(2) At those times the inability to properly weigh the relevant considerations is caused by an impairment of or disturbance in the functioning of the mind or brain which causes her to dissociate.

(3) No party submits that a longitudinal view of capacity should be taken in this case which I accept, as the evidence demonstrates that the relevant times when P is likely to lack capacity to make decisions regarding her care and contact relate to relatively infrequent isolated decisions.

(4)… there is jurisdiction under s15 MCA that enables the court, in principle, to make anticipatory declarations. Such declarations, if made, are not dependent on P lacking capacity at the time such a declaration is made as s15(c) refers to ‘the lawfulness or otherwise of any act done, or yet to be done, in relation to that person’ (emphasis added), clearly referring to a future event. The reference to ‘that person’ is to a person whose capacity has been determined under s15(a) or (b), which includes a declaration as to whether a person has or lacks capacity to make the decisions referred to in s15 (a) and (b). So, a declaration under s15 (c) is not dependent on a declaration of present incapacity,…, as both subsections (a) and (b) envisage positive declarations of capacity. The heading to Part 1 of the MCA is only a guide, at best, and there are other provisions in this part of the MCA which concern those with capacity (e.g. ss22 and 24 MCA).

(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.”

Decision

Having considered the evidence in this case, on balance Theis J concluded that the Court should not make an anticipatory declaration for the following reasons (at para 138):

• (1) Considerable uncertainty remained on the evidence about how it was possible to establish when P had dissociated to the extent where she lost capacity to make decisions about her care and contact with others and it was recognised that it would be difficult for domiciliary care workers to assess in circumstances where P’s Article 5 and 8 rights were affected.
• (2) The focus of the declaration sought related specifically to when P lacks capacity and decides whether to leave her house or to admit visitors to her home. On the evidence, whilst recognising the seriousness of each incident in the past, there had been a significant reduction in the number of such instances in part due to the consistency of the work being undertaken by the Clinic for Dissociative Studies.
• (3) P was very clear that she wished to be protected from such risks and that her care package should include a crisis plan that covered this situation, including taking steps that would, for example, prevent her from disabling the internet and to follow her in the event she left the property.
• (4) There was no significant dispute between the parties that a crisis plan should be in place, in broad terms what it should provide for and the court and the parties are assured (in particular by the ICB) that pro-active steps are being taken for that to be done which should be done with the Mental Health Trust and the local authority working with P.
• (5) With the increased involvement and participation of the Mental Health Trust, Theis J was satisfied there are other ways, short of making an anticipatory declaration, of promoting P’s autonomy and capacity to make these decisions herself with support.
• (6) P remained protected by the existing statutory framework in s5 and 6 MCA that gave general authority to those caring for P who reasonably believed 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 had 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.

Theis J stated:

• (7) The  importance of ensuring that any order following the judgment accurately records the steps outlined that were being taken by the ICB, in particular regarding the engagement of the Mental Health Trust and the CMHT, so there is a common understanding as to what action is being taken was emphasised.

Comment

This decision provides helpful guidance to practitioners in the context of fluctuating capacity and a reminder to those who providing care and treatment that they can proceed on the basis of a reasonable belief, at the relevant time, that the person has or lacks capacity to consent to the relevant intervention. It confirms that sections 5 and 6 of the MCA, are not limited to emergency situations and that the Court does have jurisdiction to make anticipatory declarations under section 15 MCA, with that jurisdiction being dependent on the facts of each case (as set out in bold per para 137 (5) of Theis J’s judgment above).