A Local Authority v PG & Ors [2023] EWCOP 9

This case concerns P’s views in relation to contact with care workers and receiving care where P’s capacity may fluctuate.

Background

P is a 34-year-old woman with a diagnosis of autism spectrum disorder, Emotionally Unstable Personality Disorder, and mild learning disability. She currently lives in a supported living placement. Before then, she lived with her mother where a deterioration in her mental health led to her being admitted under s2 of the Mental Health Act. There had been a number of incidents involving P around drugs, alcohol and approaching younger men in public and it was necessary for the Judge to consider whether P had capacity.

Views of the Social Worker and the Medical Expert

At the hearing, a social worker talked of potential triggers for P’s behaviour and Dr Jordan King, who is a Highly Specialist Clinical Psychologist at the Intensive Support Team of the Adult Neurodevelopmental Services for a NHS Trust, prepared a report for s.49 Mental Capacity Act 2005 purposes. Dr King gave oral evidence to the Court and was cross examined regarding P’s fluctuating capacity and the circumstances in which this occurred. Dr King explained that when P was calm, she could assess and weigh up risks but when faced with a trigger, P would become agitated and would struggle with weighing up and understanding information.

Conclusion

A Judgement was made that P should be deemed as lacking capacity, but emphasis was placed on the fact that when being assisted by the care workers, P’s autonomy should be protected, and interference should be kept to minimal levels to keep P safe.

The Judge considered the complexities of the fluctuating capacity for P and the difficulties the care workers would face in having to exercise a complicated decision-making process in order to decide whether at any individual moment P did or did not have capacity. This would then vary depending on the individual care worker, and how much of the particular episode they had witnessed. The Judge deemed that the result of this would fail to protect P, probably have minimal benefit in protecting her autonomy and in practice make the law unworkable.

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