Liverpool City Council v CMW [2021] EWCOP 50

This matter related to P’s capacity to make decisions in various aspects of her life, such as conducting proceedings, management of her affairs, her residence, care, contact with others, the use of social media and the internet and engaging in sexual relations.

P is an 18-year-old woman with a troubled history, having been subject to a Care Order from 2008.  P now resides in supported accommodation and is subject to one-to-one supervision and significant restrictions on her contact with others, pertaining from the Care Order made in 2008 and subsequent Court of Protection Orders for her welfare, based on interim findings in relation to her incapacity.

In approaching the individual questions of capacity in this matter, consideration was given to the matters in common to all areas of capacity being assessed.  Deliberation was given to requirements under MCA 2005 to determine a functional incapacity, as well as an impairment of the functioning of the mind.  Reference was made to the matter of PC v City of York Council [2014] 2 WLR 1, in which it was found there must be a causal link between the two.  P has been diagnosed with ADHD, foetal alcohol spectrum disorder and specific difficulties relating to her cognition and communication.  It was therefore accepted that the medical evidence demonstrated that P had an impairment of the functioning of her mind.

In relation to functional capacity, consideration was given to P’s capacity to conduct proceedings.  P had been deemed as having sufficient capacity to conduct family proceedings she was a party to.  However, it was identified the Court of Protection proceedings were much more complex and evidence suggested that P was unable to weigh the relevant issues and to understand some of the key points, therefore it was determined P lacked capacity to conduct the Court of Protection proceedings.

Regarding P’s capacity to manage her affairs, it was considered whether P’s use of her money was merely illustrative of making unwise decisions, however it was agreed that P was unable to comprehend the key components required to be weighed, in order to make decisions as to her own affairs and therefore lacked sufficient capacity to manage these.

In relation to P’s ability to make decisions relating to her residence and care, the court referred to the decision in LBX v K and L [2013] EWHC 3230 (Fam) and identified that when dealing with severe emotional difficulties and deficits, it can be unrealistic to deal with the matters separately, the issues being deeply interrelated, are required to be considered in the round.  The Court found that P’s fundamental inability to grasp why she needed support and what would happen if she did not have it, underpinned the finding that she lacked capacity to make decisions in relation to both care and residence.

The court then considered P’s capacity to decide questions of whom she has contact with.  Reference was made to the medical evidence, which identified that P’s inability to understand her vulnerability and how she may be taken advantage of, coupled with her serious overestimation of her ability to protect herself, justified the finding that P lacked capacity in relation to making decisions relating to her contact with others.

In reaching the decisions above the court also considered the issue of fluctuating capacity.  It was concluded at this stage that, even at her calmest, P did not achieve a level of functioning that would amount to having capacity in the above areas, however it was noted this should be monitored for the purpose of future decisions.  Consideration was also given to P’s age and the fact this should be considered in the context of the proceedings.  However, it was concluded P’s functioning was affected by matters more profound than teenage angst and that, even in consideration of the support available to her, P remained unable to understand issues of risk and danger to herself.

The question of whether P had capacity to engage with social media and the internet was next considered.  Attention was given to the question of understanding risk and danger to one’s self.  It was considered that it should not simply be inferred from P’s difficulties in appreciating risk in relation to care, residence and contact that this automatically deprived her of capacity in this area.  It was identified that this was a much more precise and restricted area, with less call on abstract thought and it was therefore concluded that it had not been satisfied that P lacked capacity to engage with social media and the internet.

Finally, consideration was given to P’s capacity to enter into sexual relations.  The parties agreed that the court’s approach to this issue was determined by the decision of the Court of Appeal in A Local Authority v JB [2020] EWCA Civ 735, which set out 5 criteria, which were considered in the context of P’s case.  It was subsequently agreed that P had capacity to engage in sexual relations.

The Court concluded by scheduling a best interests hearing for the areas in which P lacked capacity and authorised continuation of the current care plan in the intervening period.

The full judgment can be read here

If you have any questions regarding this summary case law please contact Michelle Wright here


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