Given the majority of the cases we deal with involve complex issues and fluctuating presentation, how does the law determine what decisions a person does and does not have capacity to make?
This question was explored by the Court of Protection in A Local Authority and PG (by her litigation friend, the official solicitor) and Others (10 March 2023).
Background
There was disagreement as to whether PG had capacity to make decisions about her care and contact with others, especially during periods of heightened anxiety.
Evidence
The judge was assisted by a position statement setting out a summary of incidents including self-harm and suicidal ideation which raised concerns about PG’s safety.
The court also benefitted from expert evidence which concluded PG struggled to weigh and understand information when dysregulated, but was able to assess risk and make capacitous decisions when calm.
In deciding this issue, regard was had to the importance of making orders which are workable and reflect the reality on the ground in a way which preserves an individuals autonomy whilst protecting their best interests.
Conclusion
In the end, the court concluded the most practical and realistic approach to take was to find PG lacked capacity to make decisions about her care and contact with others but to make it clear when being helped by the care workers, they should as far as possible protect her autonomy and only interfere to the minimum degree necessary to keep her safe.
Insight
This case serves as a useful reminder a formal diagnosis of a brain injury alone is not sufficient to find a person lacks capacity. Of importance is an analysis of the range of factors arising from that injury which may impair functioning and create a causal nexus with the inability to make a decision.
It also illustrates the importance of using tools, such as the provision of training and supervision, to try and enable people who would otherwise lack capacity to make their own decisions.
Gemma Quinn is a senior associate in the catastrophic and large loss injury team and head of the Court of Protection subject matter group.
"One of the mischiefs of the MCA (Mental Capacity Act) is to seek to preserve an individual's autonomy, but in a way that ensures that when they do not have capacity, their best interests are protected."
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