You may or may not have read some of the reports about the Leicestershire case in which the court confirmed it does have jurisdiction to make anticipatory declarations. Such declarations are generally sought in situations where P has capacity at the relevant time, but a loss of capacity is expected and there is a need for a court order to apply when P does lack capacity. Most of the cases on this issue relate to medical treatment, so this case was something of an outlier.
The Leicestershire case relates to deprivation of liberty in the community. The basic facts are in the judgement, and the case related to restrictions on P’s liberty if and when she dissociated, as a symptom of her condition. Mrs Justice Theis decided that anticipatory declarations were not needed in this case, because the necessary measures could be taken without such orders being in place.
It is an interesting case, from a lawyer’s perspective, because anticipatory declarations are such a hot topic in Court of Protection circles. It will undoubtedly appear in various academic essays over the next few years, and be discussed in future decisions.
However, it struck me as interesting for a different reason. What stood out to me was that whilst the legal frameworks to be followed weren’t clear, the proper outcome seemed to be. The end destination, as it were, seemed quite clear cut, only the route was in dispute.
On the issue of the restrictions, there appeared to be 4 possible end results.
Firstly, if P had capacity to make decisions about her care, residence and contact with others, she could consent to the restrictions being in place, whatever they might be. Of course, she could withdraw consent as well, and so the support workers with her would need to know that they should respect her wishes if she changed her mind about any element of their support. Crucially, the care arrangements would only be what P agreed to. So there would need to be detailed discussions with P about what she wanted from her care.
Secondly, if P lacked capacity to make decisions about her care, residence and contact then whether to put the restrictions in place would be a best interests decision. This would require careful consideration of the restrictions and whether these were proportionate to the risks they were aimed at avoiding. As part of the analysis, there would need to be discussion with P about the proposed care arrangements, and how she felt about them.
If she lacked capacity, then her wishes and feelings wouldn’t be determinative. The court is very clear on that. However, they would likely be given a lot of weight. Especially in this case where P had a history of trauma and so loss of control was likely to be very emotionally difficult for P. Going against her wishes was likely to be very damaging and so, unless there was a good reason to do otherwise, it is likely that it would be in P’s best interests for the restrictions she said she wanted to be in place to be authorised. So the end outcome is broadly the same as if she had capacity, save that if she changed her mind, the restrictions would remain in place unless there was a decision that it was in her best interests to make changes.
If P’s capacity was found to be fluctuating in the relevant domains, then there were 2 options: anticipatory declarations, or reliance on section 5 Mental Capacity Act 2005. If an anticipatory declaration was considered to be the right approach, the arrangements to be authorised would have to be decided on the basis of best interests. That would then lead us to the same issues above in terms of the impact of going against P’s wishes. So the likely outcome is still for the restrictions that P wants to be authorised.
What the court ultimately decided is that P has capacity to make her own decisions most of the time, but likely loses capacity to make some decisions when she dissociates. It follows then that P can make her own decisions about what care she receives and the risk management measures/restrictions that should be in place. What the judgement also found was that if P dissociates and is acting in a way that puts herself at risk, the support workers could rely on the powers in s5 Mental Capacity Act 2005 to take measures to keep her safe. It follows that the support workers would need to talk with P and work with her to learn how to identify when they should intervene, and what an effective intervention might look like for P.
The judgement refers to discussions and guidance given by P previously and during the proceedings.
So, again, the outcome is for P to consent to care arrangements she agrees with, and for support workers to work with her about the measures to take when she is dissociated.
From a pragmatic perspective, therefore, it does seem like all parties would have been better served by working together on viable care plans, for what is clearly a very difficult situation on the ground, rather than directing their energy and resources on drawn out Court of Protection proceedings.
I can’t help but feel like there is more in this story to be told. Like maybe the reason this judgement was needed is because of disagreements about what care the public bodies were willing to fund going on in the background.
Unless it is simply that everyone involved couldn’t wrap their heads around the issues until leading counsel and the Vice President of the Court of Protection were there to guide them.
Which is also possible, I suppose…
In case it isn’t obvious from the fact I still haven’t identified the authority I used to work for, or the organisation I now work for, the views expressed on this blog are my own opinion and not the opinion of that local authority or organisation.