Fluctuating capacity – making rights real and practical, not theoretical and illusory

Hot on the heels of the decision in North Bristol NHS Trust v R [2023] EWCOP 5, another decision has been handed down – this time by Lieven J – which provides a very clear, and helpful, route map through the consideration of capacity, this time in the context of fluctuating capacity.  A Local Authority v PG & Ors [2023] EWCOP 9 concerned a 34 year old woman, PG, who had diagnoses of an intellectual disability in the moderate range, and autism spectrum disorder. She had also recently been diagnosed as having “trauma based mental illness with Emotionally Unstable Personality Disorder traits” (impulsivity, suicidal thoughts and emotional instability).   As Lieven J noted (paragraph 4)

The parties agree that PG lacks capacity in the following respects – to conduct these proceedings and to enter into an occupancy agreement. The parties agree that she has capacity to make decisions about where she lives. However, the parties disagree about whether PG has capacity in respect of decisions about her care, including when she is within the home, when in the community, and at times of heightened anxiety. They also disagree as to whether she has capacity as to contact with others, including at times of heightened anxiety.

Having set out a condensed list of the circumstances which gave rise to the concern of PG’s local authority, Lieven J turned to the evidence of Dr Jordan King, Highly Specialist Clinical Psychologist at the Intensive Support Team of the Adult Neurodevelopmental Services for the relevant NHS Trust, was involved in PG’s care between 2018 and the middle of 2022.   He gave oral evidence to the Court and was cross examined.  As Lieven J noted (paragraph 19):

It was clear from his evidence that this is a complex case in respect of PG’s capacity and that the law’s desire for clear lines as to both what decisions she does and does not have capacity to make, and in what circumstances she loses capacity, does not fit with the reality of PG’s presentation. It might be said there was a lack of clarity in Dr King’s reports, and perhaps shifts in his oral evidence. However, in my view that was not because of any lack of expertise or careful consideration by Dr King, but rather because of the complex interactions in PG’s presentation and behaviours.

Of significance, Lieven J continued:

It is important to note that Dr King had seen PG at times when she was in a heightened state, after some of the incidents referred to above. Therefore, his evidence was more based on actual observations of PG at critical moments, than is often the case with experts in these cases.

Lieven J noted (at paragraph 30) that:

the Court of Protection has frequently had to consider the position of a person who has “fluctuating capacity” and such cases have been treated somewhat differently. 

In the circumstances, she found that:

36. I am really faced with a choice between making orders that follow the line of Sir Mark Hedley in PWK, and thus taking a “longitudinal view” of PG’s presentation, and which closely relates to Newton J’s “macro” decisions [in CDM]; or that of Cobb J in DN and making anticipatory declarations in respect of when PG has the equivalent of a “meltdown”. Having analysed the facts of those cases, and considered those of PG, I do not think that one or other is the correct or indeed better approach. How an individual P’s capacity is analysed will turn on their presentation, and how the loss of capacity arises and manifests itself. Both the decisions in issue here are ones that arise on a regular basis and often not in planned or controlled situations. That will influence how decisions about capacity are approached.

Importantly, Lieven J reminded herself that:

37. In deciding this issue I must have regard to the importance of making orders that are workable and reflect the reality of PG’s “lived experience”, both for the sake of PG and those caring for her. This can be analysed in various difference ways. It is a fundamental principle of the European Convention on Human Rights and the Strasbourg jurisprudence that the Rights should be interpreted in a way which makes them real and practical, not theoretical and illusory. It is a principle of statutory construction that the Court must have regard to the “mischief” of the statute. One of the mischiefs of the MCA 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.

38. My concern about making an anticipatory declaration in a case such as this, is that it would in practice be unworkable for those caring for PG. Unlike DN, PG does not have capacity in relation to decisions around her care, both when at home and in the community. Although when calm, she does at times make capacitous decisions within the meaning of section 3(1), I accept Dr King’s evidence that even when at home, when she becomes anxious and emotionally dysregulated, she loses capacity. This seems to me to be a more fundamental part of her general presentation than was the case with DN.

Whilst Lieven J noted that, it might well be that there were times when PG’s decision making was impacted by alcohol consumption, “the evidence is clear that her decision making is impacted by her mental impairment under s.2(1) and not simply by consuming excessive alcohol.”  Further:

41. It is not possible to disentangle the influence of alcohol from the impact of her mental impairment. If the evidence was that PG only lacked capacity at times when she is intoxicated then the position would be different, but that is not the evidence.[1] No party argued that the mental impairment has to be the sole cause for the person being unable to make a decision within the meaning of s.3(1).

42. On the basis of Dr King’s evidence, I conclude that the primary, though quite possibly not only reason, for PG not having capacity in relation to decisions about contact with others is her mental impairment.

Lieven J therefore considered that the

43. […] the appropriate approach is to take the “longitudinal view”. An anticipatory order would in practice be close to impossible for care workers to operate and would relate poorly to how her capacity fluctuates. The care workers would have to exercise a complicated decision making process in order to decide whether at any individual moment PG did or did not have capacity. This might well vary depending on the individual care worker, and how much of the particular episode they had witnessed or not. The result would fail to protect her, probably have minimal benefit in protecting her autonomy and in practice make the law unworkable.

44. In my view, the more practical and realistic approach is to make a declaration that PG lacks capacity in the two key respects, but also make clear that when being helped by the care workers they should so far as possible protect her autonomy and interfere to the minimum degree necessary to keep her safe.


Lieven J’s observation that whatever orders she had made had to be workable, not just as a matter of pragmatism, but also so as actually satisfy the ECHR, is an important one.  Further, her identification of the difficulties with making anticipatory declarations in PG’s case resonates with the wider difficulty of seeking such anticipatory declarations, which in practice are only really workable if they relate to (1) a very obvious one-off, for instance giving birth; or (2) a situation where there are very clear, and obvious, external triggers for a person temporarily losing capacity to make a relevant decision.  It is important to remember, however, that this is a difficulty solely for the court, which is fixed with the obligation to determine, at the point of making its decision, whether the person has or lacks the relevant capacity and – if possible – whether there are specific and identifiable circumstances under which they may do so.  Outside the courtroom setting, the question is always whether those concerned with carrying out acts in connection with care and treatment reasonably believe that the person lacks capacity to give the relevant consent at the point that consent is required.  In this regard, the guidance note we have done about fluctuating capacity in context may be of assistance (and also contains consistent and complementary observations about the operation of the ECHR to those contained in the current judgment).

Lieven J’s emphasis on the importance of care workers protecting the autonomy of PG was an important ethical corollary to her willingness to declare PG to lack capacity in the relevant domains, and must always be remembered in any case where workably securing the person’s interests may push towards a more ‘longitudinal’ approach to capacity.  It also equally, if not more, important to remember that such situations are ones crying out for working with the individual to help them set out what they would like (or would not like) at points when they may in fact lack capacity.

[1] As a matter of law, a person can lack capacity for purposes of the MCA where alcohol has sufficiently impaired the functioning of their mind or brain (see paragraph 4.12 of the Code of Practice).  However, a whole series of complexities would ensue in terms of seeking to establish a framework around someone with no apparent impairment, but who lacked capacity to make decisions about contact when intoxicated: not least, that such a framework could logically apply to anyone who might ever drink alcohol.  In relation to addressing alcohol dependence, which raises distinct, and very difficult questions, see this guidance from Alcohol Change, and for a discussion about alcohol related brain damage and capacity, see this shedinar.

Print Friendly, PDF & Email

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.