It is trite law capacity is time and decision specific and should be assessed in the present but what factors should be taken into account when deciding whether a person previously deemed to lack it has gained the ability to make their own choices?

Useful guidance can be drawn from the judgment in Re DY (Capacity) [2024] EWCOP 4 handed down by the Court of Protection on 30 January 2024.

The issue for determination was whether DY had gained capacity to make decisions about her care, residency and contact with others. 

This is crucial given if the answer was yes, the Court of Protection would cease to have jurisdiction, allowing DY to immediately regain control of these important aspects of her life.

The parties agreed DY is a highly vulnerable young person who presents with challenging behaviours which placed her at risk of harm but her lack of insight into her difficulties meant her engagement with support staff was variable.

While she gave the appearance of being someone who was quite able, having spent some time in care and dealing with professionals on a regular basis, in reality this was a veneer of social confidence which DY had learned to give.

To preserve her autonomy as well as foster a culture of trust and co-operation with those employed to help DY, the Court of Protection determined it was in her best interests to reduce the package of care and put in place a contact agreement requiring her to tell staff when she was going out, where to and who she will be spending time with.

As a result, over the next two years or so, DY’s presentation and levels of engagement began to improve to the extent it was appropriate to reassess her capacity. 

In so doing, it was acknowledged she continued to meet the diagnostic criteria of someone with a disorder of or impairment of the mind and brain, aspects of which had been present from birth, gave rise to substantial deficits in executive functioning and was regarded as immutable.

During the hearing, the Court of Protection benefitted from evidence provided by DY’s social worker who was in a good position to give information about how she in reacted in real life as opposed to within the confines of a capacity assessment conducted by a relative stranger with whom she was less willing to engage.

Having taken into account all of the evidence before it, the Court of Protection concluded DY had capacity to make decisions about her care, residency and contact with others.

This case illustrates the importance of ensuring those who need assistance following a brain or psychiatric injury receive the right amount of care in a setting which is appropriate to their best interests, even when this means reducing what may originally have been recommended by a Case Manager or expert witness.

While the prognosis may remain unchanged, as is demonstrated here the implementation of a less rigorous regime led to someone who was previously adamant she did not require any support to become less resistant to and by the time of the hearing, accepting of it.

Without this, it may be she would not have had the opportunity to regain a level of independence.

A copy of the judgment in full can be accessed here.

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Gemma Quinn is a senior associate in the catastrophic and large loss injury team based in Manchester and head of the Court of Protection subject matter group.