Case law surrounding fluctuating capacity – Liverpool City Council v CMW (2021)

The issue of fluctuating and issue specific capacity was considered in this recent case.

The matter related to whether a young woman had the capacity to make decisions in specific areas including the conduct of proceedings, the management of her affairs, her care and residence, her contact with others, the use of social media including the internet and whether she could engage in sexual relations.

P was an 18-year-old woman with a troubled background including a recent suicide attempt and had been the subject of a Care Order from 13th May 2008. At the time of the hearing, she resided in supported living accommodation and was supervised by the Local Authority. She was subjected to restrictions as to whom she was able to contact following a Care Order in 2008 and a series of interim COP orders. P was diagnosed with ADHD, foetal alcohol spectrum disorder and specific difficulties relating to cognition and communication.

The Court was provided with two written reports from Dr Angela Rippon, a consultant psychiatrist with considerable experience and expertise and written evidence from Social Services and the Official Solicitor’s representative’s notes of conversations with held with P. The expert considered that P’s expressive language was quite good but her receptive and processing skills were only those of a child aged 7 to 9. It was held that she did not have a learning disability but that she had what Dr Rippon described as a functional disorder.

The Court was satisfied that the medical evidence showed that the functioning of P’s mind was impaired and that she lacked the capacity to conduct proceedings and manage her own affairs as she could not understand the relevant issues that need to be weighed to make decisions in these matters. The Court also found that she lacked the capacity to make decisions relating to her residence, care, and her contact with others because “she seriously overestimates her own ability to keep herself safe and to control her life and seriously underestimates the consequences for her welfare of independence”. The Court also found that she did not understand the support that she needed or why she needed it and was concerned with what would happen if she did not have that support or refused it.

It was also held by the Court that P’s potential capacity would fluctuate depending on the extent to which she was either calm or distressed and this would need to be considered in future years, as there were grounds for improvement. The Court concluded that although potential capacity did fluctuate, even at her calmest, P did not achieve a level of functioning that would amount to having capacity in relation particularly to residence, care and contact but that she had the capacity to deal with social media, the internet, and engage in sexual relations.

A best interests hearing was scheduled by the Court for the areas in which P lacked capacity and authorised the continuation of the Local Authority’s care plan in the interim.

The full judgment can be found here –

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