Where capacity assessments conflict – untying the Gordian knot

Earlier this year this blog analysed the case of Re B: (Capacity: Social Media: Care and Contact) [2019] EWCOP3 in relation to social media. Those who read the judgement will have noticed that the judge also made findings in relation to other questions of capacity that appeared somewhat paradoxical.  There has now been an appeal B v A Local Authority [2019] EWCA Civ 913, warranting further discussion.

A is a woman in her early thirties with learning difficulties, epilepsy and high level social care needs. Her use of social media has brought her into contact with male strangers including Mr C, a man in his seventies with multiple sexual offence convictions and subject to a Sexual Harm Prevention Order. B’s contact with Mr C, along with her desire to live with and have sexual relations with him, formed a central part of the original judgement. In October 2018 Cobb J made an interim injunction on Mr C prohibiting contact with C. At a later hearing, he was found to have breached this order.

Cobb J, in his judgement in February 2019, made the following declarations:

1. B had capacity to make decisions in relation to her residence;
2. B lacked capacity to make decisions about her care package, and education would not improve this;
3. B lacked capacity to make decisions about who she had contact with, in part because she refused to use and weigh Mr C’s prior convictions in her decision-making, and no practical help would improve this;
4. B lacked capacity to make decisions over social media usage but practical help should be offered to enable her to acquire capacity; and
5. B lacked capacity to make decisions about sexual relations, but education should be provided.

The Official Solicitor, on behalf of B, appealed decisions 4 and 5 but the appeal was dismissed. The local authority cross-appealed decision 1. The cross-appeal was allowed.

Cobb J had tried to maintain complete separation between each question of capacity, which the Court of Appeal said resulted in a “flawed conclusion” that B had capacity to determine where she should live. They highlighted a contradiction between the declaration that B lacked capacity to make decisions about her care and the comment that, in relation to the question of residence, she understood the care she would receive living with Mr C.

The guidance as to the relevant information when assessing capacity in relation to residence was given by Theis J in LBX v K, L, M [ 2013 EWHC (Fam). One part of that relevant information is what sort of care the individual would receive in each potential residence. In the present case, the Court emphasised that the finding that B lacked capacity to make care decisions was indicative that she lacked capacity to make decisions on her residence.

Furthermore B’s decision to live with Mr C, despite a) the declaration that she did not have capacity to decide who she had contact with and b) the injunction against Mr C, “would presumably have placed [them both] in contempt of court”.

Comment

Capacity is decision specific. Section 3(1) Mental Capacity Act 2005 provides that an individual lacks capacity if they are unable to understand, retain, use or weigh the information relevant to the decision, or are unable to communicate it. That being said, there will be occasions when questions of capacity overlap, and this judgement makes it clear that such overlap cannot be ignored.

Care, contact, and residence are examples of decision-making areas that are undoubtedly linked and care should be taken when looking at each question separately. Where practitioners are assessing capacity to make several types of decisions, they should consider how the findings impact each other. If there appears to be a conflict, the assessor needs to consider that interaction carefully.