Cheshire West and Chester Council v PWK [2019] EWCOP 57

This was an application by the local authority for declarations that P, who suffers from autism and learning difficulties, lacked capacity in six areas: (1) where to reside; (2) care and support needs; (3) contact with others; (4) social media and the internet; (5) financial and property affairs; and (6) use or possession of his car provided by the Motability scheme.

In his judgment Sir Mark Hedley noted that the expert evidence, that had changed over time, was that when P was relaxed, he might well be regarded as having capacity. However, when he became anxious his position could be very different. Sir Mark Hedley went on to review recent cases involving fluctuating capacity and stated:

“It seems to me that the closer the protected person is at the moment of actual decision to capacity, the greater the weight that his views must carry and of course, any decision made must take into account that he may acquire capacity and, therefore, it must not be beyond change.”

Applying his analysis to the facts of this case, he concluded that, because the car featured so significantly in P’s thinking, that he ought to make a separate determination concerning the use of the car (following Cobb J in Re A (Capacity: Social Media and Internet Use: Best Interests) [2019] EWCOP2)). He therefore made declarations that P lacked capacity to make decisions about the car and to conduct proceedings to determine his residence or care or his contact with others or his management of his own affairs.

The full judgement can be read here

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