In one of what is likely to be one of her last decisions as a Tier 3 judge (having very recently been appointed a Court of Appeal judge), Lieven J considered a very complex situation in London Borough of Camden v BW & Anor (Capacity Decisions; Reasons) [2026] EWCOP 26 (T3). At its heart were two questions as to the capacity of the young woman, BW: (1) to make decisions about taking psychotropic medication;[1] and (2) about sharing information with her sister. Her case was, sadly, one which was not entirely untypical of cases now appearing before the court, i.e. a young woman identified as vulnerable to sexual exploitation and abuse, with a history of contacting men on the internet and then being exploited. BW had also been arrested a number of times for assault, but had been assessed as unfit to plead or stand trial on at least one occasion.
Perhaps unsurprisingly in light of this history, the woman had been the subject of innumerable assessments. In 2023, she had been assessed for purposes of Court of Protection proceedings by Dr Ince, who held (in views accepted by the court, and not subsequently challenged) that BW lacked capacity to capacity to litigate; make decisions regarding her care, accommodation and support needs; contact with others; access to the internet and social media; and to manage her property and affairs. He subsequently also identified that she had capacity to engage in sexual relations. The court made orders as to her residence and care arrangements. In 2025, she had a series of mental health crises with delusional beliefs, and decreased functioning. Her behaviour was described as being extremely challenging, including assaulting staff and attempting to abscond. She refused to take her oral medication, save on one occasion. In August 2025, in the context of her sister and the Official Solicitor raising whether she should be put on psychotropic medication, her community psychiatrist expressed the view that BW had capacity to decide whether or not to take it. Between October and December 2025, BW was admitted to mental hospital, initially under s.2 MHA 1983, and then as a voluntary patient.[2]
A further expert, Dr Sheehan, identified that there was a “a general acceptance that antipsychotic medication has been effective in reducing [BW]’s aggression and irritability,” but reached the conclusion that BW had capacity to decide whether or not to take it. He also concluded that she had capacity to decide whether or not to share information with her sister.
At first instance, at a hearing convened to consider BW’s capacity, Senior Judge Hilder concluded that, contrary to the view of Dr Sheehan, BW lacked capacity in both regards. She also held that it was in BW’s best interests for her to take psychotropic medication. The hearing was held in circumstances of some urgency, because the clinicians thought that BW needed her depot injection imminently.
Senior Judge Hilder’s conclusions had been as follows (paragraph numbers being those in the underlying judgment, which had not been published, but extracts from which appear in the judgment of Lieven J):
21. Firstly, it is part of the information relevant to making a decision about depot medication that not having it and the consequential prospect for deterioration on BW’s ability to avoid incidents of aggressive behaviour are likely to bring about the end of BW’s current placement at [Address A]. That information was just wholly missing from Dr Sheehan’s assessment. As the depot time approaches, incidents of aggression have increased. Insofar as Dr Sheehan said he was ‘not sure’ about the change of active level and medication as the depot time approaches, in my judgment his hesitant view must be considered in the light of the prescribing clinician’s view that another dose is required.
22. Secondly, it is part of the information relevant to making decisions about information sharing with AW that, without full information, her ability to support BW by input into the planning and delivery of the care arrangements which necessarily have to be made by others is likely to be adversely affected. It is relevant to the question of information sharing that BW’s care arrangements have to be determined by others in her best interest. So when Dr Sheehan acknowledges, as he did orally, that he did not explore with BW her much-expressed view that she does not need anything like her current restrictive care arrangements to keep her safe, that amounts to a significant deficit in the process of assessment.
23. Ms Kelly asked the question: “What is it about BW’s relationship with [AW] which gives rise to a distinction between her or others who have responsibility towards the care arrangements?” (I am conscious that that is a paraphrase of a whole line of questions, but I think that it captures the gist.) Dr Sheehan identified that relationships with family members may be different to relationships with professionals, but he did not identify how BW’s wishes about the flow of information to AW are different from consideration of her capacity at the time
24. This is a very difficult case. BW’s unique profile of abilities and capacities makes it very difficult for her to navigate life and also for others to assist her. Again, I am acutely conscious of the statutory assumption of capacity, of the need to avoid a protective imperative, of the need not to set a threshold unfairly high, but I am not satisfied that Dr Sheehan’s conclusions adequately reflect the position. I agree with BW’s own representatives that the assessment process is fatally undermined by superficiality in key respects.
25. Taking into account the full range of capacity assessments over time and the evidence presently of BW’s carers as set out in the social worker’s statement and indeed by AW, it is my judgment that BW does not understand the relevant information for either of the decisions currently under consideration, and is not able to use or weigh those relevant factors; and that both of those factors are due to the impairment attributable to her current diagnosis of autism.
26. Accordingly, today, I make a declaration that BW lacks capacity in each of the domains which I have been considering.
Senior Judge Hilder went on to hold that it was in BW’s best interests to have the medication (it is unclear what her determination was as regards the sharing of information). As can be seen, Senior Judge Hilder’s reasons were relatively short form. A central plank of the appeal brought against her decision by the local authority was on the basis that those reasons were inadequate. The appeal was also brought on the basis that it had been procedurally unfair to reach a conclusion about best interests when the hearing had been listed for determination of capacity; that ground was, however, abandoned at the hearing before Lieven J, and it was acceptable on BW’s behalf that, if she lacked capacity to take psychotropic medication, it was in her best interests to have it.
Dealing with the reasons challenge first, Lieven J noted that:
60. […] The standard of reasons is that encapsulated by Lord Brown at [36] in South Bucks v Porter (no 2). The reasons must explain to a reasonably informed reader why the Judge considered BW did not have capacity. In doing so they must cover the principal issues, here the statutory requirements of the MCA, and they must show why the Judge departed from the view of the expert, Dr Sheehan. However, they are addressed to the parties who are familiar with the case; they do not have to be lengthy; and they do not have to recite all or even large parts of the evidence.
61. Mr Hadden in effect submits that there was an enhanced duty in respect of reasons because of the presumption in favour of capacity. His argument is that if the Judge was going to find that BW did not have capacity, then given the statutory presumption she had to explain her reasons particularly clearly. In my view, this argument is not correct. The Judge obviously has to apply the law correctly, but there is no suggestion that she did not do so, and no such argument was advanced by Mr Hadden.
62. I note that the Skeleton Argument says: “the Judge displaced the presumption of capacity…”However, Mr Hadden did not pursue this argument, and it is in my view hopeless, particularly given that at J24 the Judge expressly referred to the statutory assumption of capacity. Plainly the Judge was well aware of the statutory presumption and applied it to the case.
63. The standard of reasons remains the same whatever the issue, or where the burden lies, it remains to provide clear and intelligible reasons for the conclusions reached.
Lieven J considered that:
64. The reasons here achieved those requirements. At the heart of the issue in the case was whether BW understood and could weigh up the information which was relevant to the decisions about medication and sharing information, see s.3(1)(a) and (c) of the MCA. Central to the Judge’s decision was the requirement in s.3(4) that a person needs to be able to understand the “reasonably foreseeable consequences” of making the decision. A reasonably foreseeable consequence of BW not taking the medication was, in the Judge’s view, that she would lose her current placement, see J21. The Judge was correct to take this into account and give it considerable weight. The placement had expressly stated that if there was another incident of aggression to staff BW would be asked to leave.
65. I do not accept that this consequence was too remote for it to be relevant to the conclusion that BW did not have capacity. Firstly, that was a decision for the Judge, who heard the evidence, subject only to appeal if her judgement was wrong. Secondly, in my view, the likely loss of the placement was an obvious, direct and reasonably foreseeable consequence of BW stopping the medication, becoming aggressive and being required to leave her current placement. Further, such a consequence was likely to have disastrous consequences for BW given her history of homelessness, periods in prison and periods of compulsory detention under the MHA. The words of Lord Stephens in JBat [74] are particularly pertinent here because the loss of accommodation was a serious and grave consequence that it was important that BW could understand. The same was true of the potential loss of support/advocacy by AW if she did not have all the relevant information.
With particular reference to the report of Dr Sheehan, Lieven J considered that:
66. The Judge was correct to say that Dr Sheehan had not considered the potential consequence of the loss of the placement in his report and had not asked BW about it. He had therefore failed to weigh up a highly material matter when reaching his conclusion on capacity. For the matter to be relevant, for it to be open to the Judge to rely on it, it was not necessary that it be referred to in the letter of instruction. Dr Sheehan was instructed to assess capacity, and he needed to consider what were the reasonably foreseeable consequences of the decision in question.
67. Although the Judge’s reasons are short, she dealt with the important critical issue, whether BW could weigh up the information relevant to the decision about her medication, including the likely consequence of her deciding not to take it.
68. The same analysis applies to the decision about sharing information with AW. Dr Sheehan did not explore with BW the likely consequences of AW not being able to advocate on her behalf, and what the Judge plainly viewed as the lack of realism around BW’s view that she did not need the current care arrangements. This was an entirely valid concern given that BW had been found not to have capacity in respect of assessing her care needs. Again, this amounts to failing to consider and weigh up the likely consequences of the decision not to share information with AW, and the impact on the provision of the care she undoubtedly needed.
69. There was a lack of assessment in Dr Sheehan’s report, as the Judge states at J23, as to how BW’s lack of capacity in relation to decisions about her care, which was not disputed, related to a finding that she had capacity to decide AW should not have information shared with her. With all respect to Dr Sheehan, the statement that relationships with family members may be different to those with professionals, misses the point that the history strongly suggested that BW’s family, and AW in particular, had been critical in ensuring that BW received the care support she needed and was entitled to. BW was adamant that she did not want AW to be given information about her care, but the Judge was entitled to conclude that BW was unable to weigh up the consequences of that decision.
Perhaps ambitiously, it was submitted by the local authority that Senior Judge Hilder had acted pursuant to the ‘protective imperative,’ rather than considering BW’s capacity to make decisions, even if unwise. Lieven J had little truck with this:
70. The Judge is the Senior Court of Protection judge, and extremely experienced in this jurisdiction. There is nothing in the judgment to suggest that she has confused an unwise decision with a finding of lack of capacity. It is clear from the judgment that she found BW not to have capacity because she concluded that BW did not understand the reasonably foreseeable consequences of her decisions.
Lieven J was also underwhelmed by the suggestion that Senior Judge Hilder was wrong to place reliance on the earlier capacity evidence of Dr Ince, and also as regards the challenge that she had not given adequate reasons for departing from the report of Dr Sheehan:
74. Ground 4 focuses on the Judge’s alleged lack of reasons for departing from Dr Sheehan’s recommendation. Mr Hadden submits where the Judge was disagreeing with the expert on capacity, she had to give further and more detailed reasons. The Skeleton says that if the Judge was to depart from the expert “this required the clearest of bases and explanations”. I note that there is no authority given for this proposition and Mr Hadden could not point me to one. Mr Hadden relies on Hemachandran where the Court of Appeal overturned a first instance decision where the Judge had determined capacity contrary to the consensus view of all the experts. It is relevant in that case that there was such a consensus view, whereas here there was one expert, who as the Judge explained, had not taken into account some of the key considerations that were relevant under the tests in the MCA.
75. There is no doubt that the decision as to capacity is one for the Judge, and the Judge is fully entitled to depart from the capacity assessment, whoever it is undertaken by.
76. As Ms Kelly submits it was not the Judge’s job to critique Dr Sheehan’s report. She had to reach a decision on capacity taking into account all the relevant evidence, including her own knowledge of BW. A fair reading of the judgment makes it perfectly clear why the Judge departed from Dr Sheehan’s views and what factors she took into account.
Comment
This case is a useful reminder that judges are entitled to depart from the reports of experts instructed to assist on capacity, and also that there is no difference in the ‘reasons burden’ by virtue of the presumption of capacity. The judge needs to have before them sufficient evidence to establish (on the balance of probabilities) that the person lacks capacity to make the relevant decision. However, that is a different question to the question of the nature and extent of the reasons that they have to give. Given that the consequences for a person of being found to have capacity can be just as serious as being found to lack it (here, potentially, not taking medication recognised as being of assistance), it can readily be seen why there is an equivalent duty on a judge to explain their conclusions either way.
The discussion of the capacity issue in relation to the sharing of information is also relevant and important in a context where the conclusion can sometimes too readily be reached that a person has capacity to make such a decision on the basis (1) of desires to uphold patient confidentiality; and (2) failures to probe the extent to which the person recognises and is able to process that they may have others in their life who provide a support network.
[1] Note, the framing of the question at both first instance and on appeal was on the basis of ‘consenting’ to such medication, which likely reflects the realities of the situation, but is at interesting odds to conventional medical treatment cases, in which the decision is not about consent / refusal, but whether to have the specific procedure.
[2] Parenthetically, it would be extremely interesting to know the basis on which this was considered to be lawful in circumstances where it is difficult to see how this could not have been a confinement, and (on the face of the judgment) it is not obvious how she could have capacity to consent to that confinement. Pre-AGNI it is very difficult to see how this could not have been seen to have been a deprivation of liberty requiring formal authority (the information in the judgment does not give enough material upon which to assess whether post-AGNI she would still be seen as deprived of her liberty).
