When does an individual lack mental capacity? Section 2(1) of the Mental Capacity Act 2005 (MCA) says ‘a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain’. And (per section 2(2)), it matters not whether the impairment or disturbance is permanent or temporary. Nevertheless, the capacity principles in section 1 of the MCA require (per section 1(2)) that a person must be assumed to have capacity unless it is established that he lacks capacity. Moreover (per section 1(4)): ‘A person is not to be treated as unable to make a decision merely because he makes an unwise decision.’
Cobb J had to grapple with various MCA requirements and complex issues of fluctuating capacity in Calderdale Metropolitan Borough Council v LS (by the official solicitor as her litigation friend) and another [2025] EWCOP 10, judgment in which was handed down on 13 March. The case concerned a woman aged 31, referred to in the proceedings as ‘Stitch’, living in supported rented accommodation within the area of Calderdale Council (pictured) (‘Oak House’ in the proceedings). Stitch has mild intellectual disability, attention deficit hyperactivity disorder and a dysfunctional attachment style. In previous ‘lengthy and complex’ proceedings (brought in 2019), Stitch’s decision-making capacity was a live issue. Nevertheless, Cobb J had then concluded on the evidence that Stitch had decision-making capacity in most areas of her life. But ‘almost as soon as that order had been made’ concerns resurfaced among Oak House staff about Stitch’s capacity in various areas.
In May 2024, therefore, Calderdale issued a fresh application for MCA declarations and orders. Consideration was consequently given again to Stitch’s capacity: (a) to conduct this litigation; (b) to make decisions about residence; (c) to make decisions about her care; (d) to make decisions about contact with others; (e) to make decisions in relation to internet social media use; and (f) to engage in sexual relations. The court received evidence from two experienced adult care social workers from Calderdale Council and a consultant forensic psychiatrist. Stitch appeared in the proceedings, represented by the official solicitor as her litigation friend. The second respondent was Stitch’s mother, MS, who also lacked litigation capacity, and appeared separately by the Official Solicitor as her litigation friend.
As to Stitch’s capacity to make decisions on her residence and care, Cobb J considered that ‘she cannot do this without the infrastructure around her of the court order, and the constant support of, and boundaries set by, the staff at Oak House’. For ‘she is not able to exercise the necessary level of executive functioning to achieve this decision-making autonomously. She derives crucial psychological containment and security from the infrastructure of the support plan; when that has gone in the past, it has exposed her inability to deploy the functions required to make a capacitous decision’. The question of fluctuating capacity was advanced partly because: ‘(a) Stitch was assessed (and found) to have had capacity in multiple areas relevant to her welfare in June 2023, but in [various] respects it is agreed that she “lost” it reasonably soon thereafter, and (b) because at times even during the currency of these proceedings she appears to demonstrate capacitous decision-making and at other times not’.
Among the authorities considered by the court, Cobb J considered the most pertinent to be Cheshire West and Chester Council v PWK [2019] EWCOP 57, where, although the subject, PWK, might at times indicate capacity to manage his affairs, at other times he did not. Consequently, Sir Mark Hedley in PWK noted that ‘the general concept of managing affairs is an ongoing act’ and relates to ‘a continuous state of affairs whose demands may be unpredictable and may occasionally be urgent’. Consequently, the court was not satisfied that PWK had capacity to manage his affairs. Hedley pointed out that: ‘Some have referred to this as taking a longitudinal view. In my view, this approach has the value of clarity. It establishes that the starting point is incapacity. The protection for the protected person lies in the mandatory requirements of section 4…’ (best interests).
Consequently, regarding Stitch’s residence and care: ‘on all of the evidence laid before [him, Cobb J felt] driven to the view that she does not have capacity to make decisions about her residence and care, but her lack of capacity does to a degree fluctuate to a point where she has been, and from time to time, when settled, appears capacitous.’
In all the circumstances, Cobb J made an order containing declarations pursuant to section 15 of the MCA that Stitch lacks capacity to: (i) conduct these proceedings; (ii) make decisions as to: (a) where she should reside (applying the longitudinal approach to her capacity); (b) the care she should receive (applying the longitudinal approach to her capacity); (c) her contact with others (including insofar as her mother is concerned applying the longitudinal approach to her capacity); (d) the internet and social media; and (e) engaging in sexual relations. The court also (among other things) ordered the provision of sex education and counselling to support Stitch in regaining sexual relations capacity and that Calderdale file an amended and detailed support plan, with input from Stitch, to moderate risks of applying the longitudinal capacity view concerning residence, care and contact with her mother. It must also routinely be considered whether Stitch may gain capacity (section 4(3) of the MCA).
Nicholas Dobson writes on local government, public law and governance
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