A challenging capacity assessment and a professional witness in court

By Josie Seydel and Claire Martin, 19 February 2023

Editorial Note:  A psychologist gave professional witness evidence at this hearing about P’s capacity to make decisions relating to care and contact. The two observers who’ve co-authored this blog post are also psychologists.  Listening to his evidence, they have come to opposite conclusions about P’s capacity.  In this blog post they explain why, and discuss the challenges posed by fluctuating capacity and the balance of protection and autonomy.

UPDATE: The judgment was published on 10th March 2023. You can find out what the judge decided here: A Local Authority v PG & Ors [2023] EWCOP 9

On Thursday 2nd February 2023, we observed the final hearing in the case Josie had  observed and blogged about earlier: COP 13825449 before Mrs Justice Lieven (see “Uncertainty about capacity for contact – and the inappropriateness of using the inherent jurisdiction” for an overview and discussion of the last hearing). The hearing was held over MS Teams and lasted for a little over 2 hours.

The case concerns a 34-year-old woman, P, who was described as having “a diagnosis of moderate intellectual disability, an autistic spectrum condition and recent diagnosis of EUPD” (emotionally unstable personality disorder). She resides in supported living accommodation with 24-hour care (reported as 2-to-1 care during 15 hours of daytime and 1-to-1 care for 9 hours at night), where she has lived since August 2022; prior to this date she lived, with carers, with her mother. The issue before the court was P’s capacity to make decisions around care and support and contact with others.

The parties were: 

  • the applicant local authority, represented by Mark Bradshaw (Some social workers also attended); 
  • the protected party at the centre of this case, P, represented –  via her litigation friend, the Official Solicitor – by  Eleanor Keehan.  (P was also present in the hearing, watching the court process with her mother, and she appeared on screen a few minutes after the formal start of the hearing:  “Oh there’s [Name] – hello!” said the judge)
  • P’s mother, represented by Sophie Allan
  • The Integrated Care Board (with silent status in this hearing)

The parties agree that P lacks capacity to conduct legal proceedings, and to make a tenancy agreement.  They also agree that she has capacity to make decisions about her residence.  

There is disagreement or uncertainty about her capacity as to decisions about some or all of the care and support she receives (especially in the community). There is also disagreement about capacity for contact decisions (excepting family). 

Dr K, P’s former clinical psychologist, had provided a detailed s.49 report which had led to some confusion and disagreement as to whether or not P has capacity to make these decisions (it seems he said that she did, but there were “apparent inconsistencies”). 

A question of hearing the case under the inherent jurisdiction had been raised by the LA in the previous hearing, but subsequently withdrawn. Instead, the question as to whether or not P has the capacity to make her own decisions in relation to care and support and contact was now before the court, and Dr K was present as a professional witness for cross-examination. 

A total of three reports from Dr K had been submitted to the court between March 2022 and October 2022. Further, following a psychiatric inpatient admission in November 2022, P has had an additional diagnosis of EUPD, from a clinician other than Dr K, but no reports were mentioned (or requested) in regard to this.

P was sitting with her mother for the hearing, initially visible on screen but then the camera was turned off and we were told this was because of ‘bandwidth’. (Claire’s notes read:  “P and her mum sitting together in a room, both with coats on and P herself looks a bit fed up, head in hands then chin in hand. Perhaps just waiting patiently.”) The judge said that she was “keen that [P] should be able to hear me” and clarified with Eleanor Keehan (counsel for P) that she could. 

P was not given an opportunity to speak during the hearing, which surprised us. As a result, we did not get any real sense of P as a person, her likes and dislikes, her own thoughts and concerns and what she thought of all of this. There will be a lot of information and processes to which we are not privy though, as observers, and P might have felt included in other ways. All we really learnt about her wishes in this hearing was that she wants to ‘be with people and make friends’

Dr K’s Evidence: Our perspectives


Dr K was affirmed and declared that he had no amendments to make to his assessments and that they represented his true and professional opinion. Counsel for the local authority took Dr K through his evidence and then counsel for the Official Solicitor cross-examined him. 

I found this process somewhat frustrating as it felt laboured and a little fruitless. 

I struggled to ascertain whether there was an actual difference between Dr K’s opinions regarding P’s capacity in relation care and support and her capacity in relation to contact in the community. Dr K’s analysis of P varied and sometimes contradicted itself. 

At one point Dr K agreed that P “lacked capacity at all times and in all contexts”. However, he also said that when P is calm and collected, as she was during their assessments at home in her living room with her mother present, she “recognised risks and could communicate reasoned understanding of situations and actions she could take to keep herself safe” and “passed all the tests on risks, vulnerability and appropriate behaviour” – but he said that these were of a “time specific nature”. He felt that the effects of her autism made her more susceptible to coercion and that she therefore “struggles to employ skills that are otherwise there when she is calm and stable”, which would therefore suggest that P’s capacity fluctuates. 

Mrs Justice Lieven sought clarification, asking: “So your answer to that is, just that not only she lacks capacity when out and about. You said she lacks capacity for all things at all times. Is that your evidence?” To which Dr K responded “Yes, she might sit at home and know to say ‘I don’t want you to come out with me’ but wouldn’t have skills to keep herself safe.” And later “Even when functioning at her best, I still have concerns about her ability to make decisions about care needs in the community even if she’s not in the community at that time.” 

I was becoming more confused, as was the Judge who periodically stated “I’m really confused Dr K, sorry” and“You lost me somewhere there”. I also recalled that at the previous hearing it had been remarked that an assessment of P, made in March 2022 by Dr K, came to the conclusion that P ‘had the capacity to be aware of the risks’ of her contact with strangers – however this did seem to be contradicted by the claims he was making here.  

Although this is clearly not an easy case, I did think it was a little bit of an understatement made by the Judge towards the end of the hearing when she commented that his evidence seemed to “shift in nuance and slightly vary.”

In the process of cross-examination and the exploration of several different and hypothetical scenarios involving P (her capacity to consent to care, her levels of emotional dysregulation, her use of alcohol and her social interactions with others in the community, etc.) more confusion than clarity seemed to occur. Mrs Justice Lieven interjected another astute comment that this was a “classic case of lawyers meeting clinicians, particularly psychologists and psychiatrists. Life just isn’t as simple as lawyers would like it to be. What I’m getting from your evidence is how complicated it is. We can’t dissect P’s mind to get at every instance. Things change depending on different variables. Is that right?”.

During submissions from the lawyers, in which they were continuing to grapple for a distinct delineation of P’s capacity across various different situations, Lieven J steered the hearing back to a coherent focus, stating:  “we can’t have a situation where P has capacity for 5 minutes and then lacks capacity for the next 5” with “smaller and smaller decisions, more and more lawyers, but not better care” and adding that it “leaves carers wide open to assault and unwanted detention claims”.

 Similarly, to the previous hearing I felt this Judge really placed P and her needs back into the centre of the case, and acknowledged the complexity of the situation, and the vulnerability this was potentially placing P’s carers in. Whilst perhaps the Judge was at this point unable to achieve clarity, she certainly achieved direction, navigating the team and reminding them of the objective.


The court went straight into questioning and cross-examination of the clinician (a clinical psychologist, Dr K) who had provided the court with Section 49 reports. These reports had been provided last year, so were not up-to-date reports on P’s capacity. Dr K did make this point during questioning. 

I found myself getting very, very confused about what was, exactly, Dr K’s evidence regarding P’s capacity to make decisions about her care and support, and about contact with others.

A key issue was whether capacity was different when she was ‘calm’ to when she was ‘heightened’. As Lieven J said though, “I can’t have her having capacity for 5 minutes and then not for the next 5 minutes. That’s not do-able for people looking after her.”

Below are some extracts from questioning and evidence given by Dr K during the hearing: 

Extract 1

MB [Mark Bradshaw, Counsel for the Local Authority]: The area I want to ask questions about are concern about what would happen if [P] refused her care and support. [I want to] focus on times when – times of high arousal – [referred to as] ‘heightened state’ in the papers, of anxiety. Is it fair to say that [P] has difficulty executing when in heightened state?

Judge: Executing what Mr Bradshaw?

MB: Executive function – to make a decision about risks.

Dr K: I would say that she would be able to communicate her decision. However she would frequently struggle to understand, and retain and weigh up or use the information at the moment of making the decision. She knows what she wants, but she struggles to understand underpinning factors. [my emphasis]

MB: You describe a test – a 20-item multiple-choice test [assessing the] risks of being exploited and abused. You thought [P] had a good understanding of this? Is that right?

Dr K: At the point of the assessment – calm, unintoxicated, yes.

MB: Different in a heightened state of anxiety?

Dr K: Yes. 

Extract 2

MB: … You discussed three scenarios with [P]. When with an unfamiliar group of male peers and they want her to join them without her support worker; when they want her to get into their car; and having sexual contact. You give an account of P’s responses. Your conclusion … you say she ‘demonstrates a good level of insight into her support requirements’

Dr K: That’s right

Extract 3

MB: What do you consider to be other potential triggers for states of heightened emotion?

Dr K: They are varied. For example, she sees emergency vehicles and believes the police are after her. If she sees them from her home, she thinks people are watching her such as ‘that’s the judge in the car outside’. She gets anxious about where she is going to live, it’s on her mind frequently. Peaks and troughs of anxiety. She might become anxious about passing someone in street, do they pose a danger or not? A range of things, difficulties understanding the minds of others, due to ASD and learning disability. [Things are] misinterpreted, [she] perseverates and finds it difficult to move on. 

MB: Do you consider there are times when at placement [i.e. her home] when she would lack capacity to make decisions about her care and support?

Dr K: The assessment concluded that she lacked capacity at all times in all contexts. She lacks skills to keep herself safe in the community at all times. …

MB: Do you consider when at home she lacks capacity regarding care and support?

Dr K: I’m finding it hard to process…

Judge: [clarified] So, the answer to that is that not only does she lack capacity when out and about. You said she lacks capacity for all things at all times. Is that your evidence? [Judge’s emphasis]

Dr K: Yes, she might sit at home and say I don’t want you to come out with me, but she wouldn’t have the skills to keep herself safe. 

MB: And when heightened at home?

Dr K: Yes. It’s more obvious when she’s heightened. 

So Dr K seemed to be saying, at first, that P can show ‘good insight’ and then later gave evidence that she ‘lacked capacity at all times in all contexts’. Later he spoke about specific occasions of assessments from other colleagues from the Crisis Team (who had been out to attend to P in the community when she had been thought to be at risk). 

This next long exchange was interesting. It starts with Mark Bradshaw asking Dr K if he had mentioned P’s use of alcohol in his reports, and develops into a consideration of how anyone’s actions, if likely to be construed as ‘unwise’, can be differentiated from a person with and without capacity to make those decisions: 

Extract 4

MB: Have you referred to this [alcohol] in your report?
Dr K: I don’t recall, no.
MB: If I can be as straightforward as I can be, it is the LA’s contention that P lacks capacity whenever she is in a heightened state. What do you say to that?
Dr K: I think there is some variation to her decision-making in a heightened state. In my previous clinical experience, she’s been in the community denying support, the team met with her and she was able to communicate her opinion. For example, saying “I just want to be with people and make friends”. There was no suggestion that she was making an incapacitous decision.  It may have been unwise. 
MB: How to identify this? Is it visible?
Dr K: I don’t think it’s always visible, but shouting, refusing contact, raised voice, walking at pace. It’s only in conversation you can tell if she’s retaining capacity.

Judge: You lost me somewhere there.

Dr K: I’m finding it really hard to come down one side of the fence or the other because it varies so much depending on who she is with, what’s happened, whether she’s had alcohol. There are nuances. It’s so variable. 
Judge: Okay, I get that. That makes sense to me.
MB: I would stop at that point.

At this point I had made a note wondering why Dr K had not discussed fluctuating capacity in his report. His oral evidence was that it is very difficult to assess, definitively, whether P can demonstrate mental capacity for care and support, and contact, decisions. He now seemed to be saying that sometimes P did retain capacity, and sometimes she didn’t. Yet earlier in his cross-examination, he had said that CD “lacked capacity for all things at all times”. Josie had recorded at the previous hearing that the s.49 report had found that P had capacity around strangers (i.e. contact decisions). I was confused. It seemed to me that an independent expert witness report was required.

Lieven J then turned to Eleanor Keehan [EK] inviting her to ask questions of Dr K.

Extract 5

Judge: Back to you Ms Keehan
EK: Dr K,  I appear on behalf of P via the Official Solicitor. In relation to contact with others, one of the areas to be assessed, I want to clarify your view. When she is in a calm state at home, she has capacity to make decisions as to contact with others?
Dr K: I would agree.
EK: So that’s baseline. At baseline she has capacity for contact with others. 
Dr K: [confused by term baseline]
Judge: Forget baseline  – that’s a confusing term.  When she’s at home, with mum, and no triggers, calm, in those situations she’s likely to have capacity about contact with others?
Dr K: Yes
EK: One time, when you saw P in the community when she was in a heightened state, you said there was no reason to believe she was making an incapacitous decision. 
Judge: Are you referring to the report?
EK: No. My notes from Dr K’s oral evidence. You went to her in the community, in a heightened state, and had no reason to believe she was making an incapacitous decision.
Dr K: Not me. That was my colleague – P was in a heightened state, making what might be construed as an unwise decision, but was able to state why: she could explain her reasons.  But other times, she’s not been able to do so.

Returning shortly afterwards to the issue of alcohol:

Extract 6

Dr K: I remember an MDT meeting involving the social worker who was discussing examples of times when P was in the community, behaving in unwise or dangerous ways making her vulnerable, and alcohol was a factor. And then she wasn’t outlining the pros and cons of her situation to others, or showing that she recognised there was a degree of risk.
Judge: Can I just butt in for a moment? I am struggling Dr K. I suspect most people don’t weigh the pros and cons in the same way when they’re out drinking alcohol as they do sitting home in the living room. How am I supposed to assess whether that’s a lack of capacity?  How is this is related to her capacity, as opposed to other capacitous adults? [Judge’s emphasis]
Dr K: I am finding it hard myself to disentangle, which is perhaps why it’s coming across like that to others. It’s hard to disentangle – it’s not clear cut. 
Judge: I understand that, I’m not being critical, but I have to make a decision.

There was then a long exchange between Eleanor Keehan and Dr K trying to clarify his evidence about (a) whether P is unable to keep herself safe at all times; and (b) whether capacity rests on when ‘functioning at her best’ or when ‘in a heightened state’.

Lieven J then intervened in a way that was exceptionally helpful (to me!) to clarify the mire that the barristers had got into with Dr K. I was feeling so confused at this point about what decision was being discussed, the relevance of whether P was at home or out and about, and the influence of her location on when professionals must have assessed her to displace the presumption of capacity and therefore enable a best interests decision to be made (and a coherent care plan to back that up). 

Extract 7

Judge: This is a classic case of lawyers meeting clinicians, particularly psychologists and psychiatrists. Life just isn’t as simple as lawyers want it to be.  What I’m getting from your evidence is how complicated it is. We can’t dissect P’s mind to get at every instance. Things change depending on different variables. ….   I’m getting a picture of P being quite calm at home, less so in the community. My focus must be on decision-making – when she’s faced with an actual DECISION, does one of the stresses come from having to make a decision? ‘Am I going to go off with this bloke or not?’ Or is she OK about making those decisions if heightening factors aren’t there? [Judge’s emphasis]
Dr K: The act of making a decision can be stressful, for example where to live was very difficult for a range of reasons. Trying to balance her own and her mother’s needs, balance what services are telling her. She’s someone who values relationships with others, and she can struggle wanting to please everyone.

Judge: That’s helpful. In my position – I don’t know her – I’m trying to think this through with you. Thank you. Let’s proceed to submissions. P’s situation can’t be that unusual – [being] OK at home, and not, when stressors are around. How …. does any of the case law help me? Section 3 of the Mental Capacity Act; how much of the time does this have to be met to find someone doesn’t have capacity? 

Closing Submissions (Claire)

Mark Bradshaw (MB) – Counsel for the Local Authority

MB: I would say this is a classic case of fluctuating capacity. If that’s right, then what’s been referred to [in case law] is a longitudinal approach ….
Judge: What does that mean?
MB: The PWK case. It’s classically similar in my submission. When becoming anxious, the position is different. I have set out what I would submit to be the ratio of the case essentially. … [then referring to the PWK case] Significant periods of time when the person is lacking capacity. Accepting that the person might have capacity at times, but significant periods when they don’t. It reflects the difficulty Dr K has had.
Judge: I’m not sure the MCA is about the theoretical capacity to make decisions. It seems to me that the critical moment is when the person has to make the decision. … the Mental Capacity Act is about the actualmoment you are making the decision to get into that bloke’s car? Isn’t that right? [Judge’s emphasis]
MB: I think that must be right
Judge: But have any other judges looked at it that way?
MB: I can’t bring to mind. 

Lieven J appeared to be wrestling with a real dilemma between protecting P and upholding her autonomy. She said:

 “The last thing I want to do is intrude on P’s autonomy a millimetre more than I need to do to keep her safe. But I can’t say she has capacity for five minutes and not for the next five minutes. That would be impossible for the poor people looking after her. I am not attracted to this. We do have to make the Mental Capacity Act work. We’ve already gone down the line of making smaller and smaller decisions. It leads to more and more lawyers, but probably not better care.  I’m going to need more persuading that she has capacity when calm and not when she’s not. It leaves carers wide open to assault and unlawful detention claims.”

The gist of Mark Bradshaw’s final submission was that the case was ‘finely balanced’ (a phrase I have become very familiar with as an observer in the COP): either that there isn’t ‘sufficient evidence to displace the presumption of capacity’, or that ‘sometimes P does lack capacity for these decisions and therefore a longitudinal approach should be applied’

Sophie Allan – Counsel for P’s Mother

Sophie Allan’s closing submissions were that P’s mother takes a position “aligned with the local authority; she wants to keep P safe’.  She supports the view that P lacks capacity for care and support decisions, especially when out in the community. She argued that contact with third parties was ‘more difficult’, but that her reading of the evidence ‘in the round’, was that she had reached ‘the inevitable conclusion that decisions, for example getting into cars and houses of strangers, are likely to be incapacitous rather than unwise.”

Eleanor Keehan – Counsel for P (via the Official Solicitor)

Eleanor Keehan, in contrast, submitted that Dr K’s evidence was, in fact, that P was (even at times of being ‘heightened’) able to understand, retain, weigh and use relevant information. This submission was based on the information from Dr K’s colleague. She argued that being dysregulated ‘does not cause incapacity’. She suggested that alcohol is a factor but that ‘there are many people every day who make unwise decisions because of alcohol’. A persuasive point, in my view, was a concern that a declaration of lack of capacity for these decisions would be ‘raising the bar far too high for P as opposed to other people’ and that ‘It is my submission that intoxication can affect anyone’. Eleanor Keehan stated emphatically that there was a risk, with P, of ‘misguided paternalism’ and a consequent erosion of her autonomy. 

Mrs Justice Lieven appeared uncomfortable and said that “parts of your evidence do not accord with what I wrote down”.  She acknowledged that the application was a ‘complicated case on the ground” but said “I’m not going to make a judgment based on what Dr K said and then have you tell me that I wrote it down wrong”.  She emphatically wished to be clear: “I don’t want to be in the Court of Appeal for not understanding the evidence”.

Lieven J directed the three barristers to write down for her an agreed version of what Dr K’s evidence was in relation to P’s capacity to make decisions about care and support, and contact with others.  



On my own reflection of this case, from my perspective as a psychologist, I have been left wondering what the outcome may be for P and have some concerns. 

Although Dr K reported having met with P over 20 times, aside from several assessments and a mention that he felt he generally had a ‘positive relationship’ with P, there was no mention in his oral evidence of any specific therapeutic support that had been undertaken. 

I do not believe that a judgment about P’s capacity to decide about her care and support, or her contact in the community should ignore the possibility that she might be able to develop insight, skills and benefit from education regarding these issues.

I wonder if a behavioural analysis has ever been carried out with P (not ‘on’ her)? This would give some indication as to her triggers to anxious and/or dysregulated states, her thoughts arising from this, any behavioural interventions or strategies she or carers have tried that might assist her to cope without putting herself at risk, and what may be reinforcing problematic behaviours. We already know, for instance, that traffic can trigger P’s anxiety, but also that her anxiety (and rumination) can cause her to lose awareness of risks around traffic. The common factor here is anxiety. 

A common feature of Autistic Spectrum Disorders is a difficulty with sensory processing that can often lead to feelings of overwhelm and anxiety. However, any person, regardless of diagnosis, may well have their cognitive ability and executive functioning impaired when emotionally dysregulated or distressed:  “a narrative review of the literature revealed that anxiety, whether self-reported or experimentally induced, is related to poorer performance across a wide variety of tasks.” (Moran, T. P. (2016). Anxiety and working memory capacity: A meta-analysis and narrative reviewPsychological Bulletin, 142(8), 831–864)

The Position Statement from P’s mother, which I first saw after the hearing itself, described a number of high-risk behaviours such as: P leaving the house at night and not returning for several hours, going ‘missing’ and staying in strangers’ houses overnight, kissing strangers in the street, P reporting having sex with strangers in exchange for drugs or alcohol, and making allegations of assault and sexual assault, all of which were noted in her Positive Behaviour Support Plan. They are also behaviours that cause P’s mother profound concern and anxiety that something catastrophic might happen if P is not protected. In addition, the Position Statement mentions an increase in alcohol use, to a daily basis, with concerns for P’s physical health. These would be highly concerning behaviours regardless of a person’s capacity.  I still wonder whether, in P’s case, this reflects a lack of capacity or simply unwise decisions?  Mr Justice Hayden, in London Borough Tower Hamlets v PB, reminds us that:

The professional instinct to achieve that which is objectively in P’s interests should never influence the formulation of the criteria on which capacity is assessed”. 

Neither anxiety, emotional dysregulation or risky behaviours in themselves constitute lack of capacity. In ‘A Local Authority v RS,  Mr Justice MacDonald also emphasises:

“…the importance of not conflating a narrative account of risky decisions/unwise behaviour with a lack of capacity – there must be detailed and meaningful analysis of capacity by reference to the criteria set out in the MCA. When assessing P’s capacity, it is necessary to carefully consider the diagnostic and functional tests for capacity and the causative nexus between them.”

Which returns me to the three criteria of understanding, weighing and retaining information. It was agreed that when ‘calm and collected’, certainly in relation to her care and support in the home environment, P had a better ability to understand, weigh and retain information.  This implies that, although it may be fluctuating and situationally dependent, P does (sometimes) have capacity. In addition, from the previous hearing, I understood that P had become more stable in her mood and related challenging behaviours since living in supported accommodation – so to me this indicates that P also has the ability to improve her capacity when she has the appropriate support and in certain contexts. I would therefore suggest that there is a good argument that P does have the capacity to consent to her care and that this could be considered as an advance statement of wishes or, which could be employed when P’s capacity fluctuates to a level, perhaps agreed by her, that causes her to lose capacity in a way that puts her or others at risk. In addition, therapy, such as DBT (dialectical behavioural therapy), for example, could empower P, and her carers, with a wide range of skills such as distress tolerance and emotion regulation, to help manage her labile moods and resultant challenging behaviours and thus, potentially increase her ability to make capacitous decisions. This does however, put an inordinate amount of responsibility for carers to assess moment by moment a “complicated case on the ground” (as it was described by Lieven J) and may well risk leaving them “wide open to assault and unwanted detention claims”, which is far from ideal.

I cannot say that I am satisfied by this conclusion. It feels one of cool logic rather than precaution. I am applying my understanding of the MCA and MCA guidelines, albeit limited and inexperienced, (as this is only the second case I’ve ever observed) and from the angle of preserving P’s autonomy.  I am aware that an alternative route (such as a ‘longitudinal approach’ as outlined in Cheshire West  may be more protective and appropriate. However, on the basis of the evidence of Dr. K’s assessments and based on the information provided and considered in my observations – and despite the serious risks to her safety, despite the anxiety of P’s mother and despite the potential litigation against carers – I would conclude that P has capacity  – because I have not heard anything said in court about a clear causal link between an “impairment or disturbance in the functioning of the mind or brain” and P’s inability to make decisions because of this impairment, and the MCA is clear that “A person must be assumed to have capacity unless it is established that he lacks capacity.


This is probably the most confusing hearing I have ever observed – certainly, in terms of what evidence was being presented to the court. I was left with many more questions than answers. 

My reflections focus on what is ‘relevant information’ for a capacity assessment, potential practice effects, the notion of fluctuating capacity and thoughts about the upcoming judgment.

What is ‘relevant information’ for specific decisions?

Dr K at times mentioned the ‘relevant information’. I wondered what relevant information he had understood to be important for the assessments he had carried out. 

39 Essex Chambers has published a really helpful Guidance Note called “Relevant Information for Different Categories of Decisions”. The guidance states: 

Starting with the information set out here means that is not necessary to reinvent the wheel each time they come to consider whether a person can make one of the types of decision covered. If professionals start with the information as potentially relevant (or irrelevant) they will be doing so on the basis that they will be following a path adopted as appropriate by the courts

In this guidance note is information on relevant information (and what is not relevant information) for assessments looking at capacity to make care and contact decisions. 

Thinking back to Dr K’s evidence I can see why it is perhaps hard to ‘come down one side or the other’. As Lieven J said, though, she is in the (in my view, unenviable) position of ‘having to decide’

P could ‘explain’ things at times; but I am wondering whether she really understood the real world meaning of what she was explaining. Especially because, from the accounts of the support workers and her mother, P’s actions were often inconsistent with her explanations. It made me wonder about possible practice effects, and Dr K’s assertion that P often wants to please others.

Practice effects and hoping to please? 

I am not sure how many times, overall, P has been assessed for capacity for care and contact decisions. In the hearing, three occasions were mentioned, all last year. 

Dr K also described P as ‘someone who values relationships with others, and she can struggle wanting to please everyone.’ I wondered whether it might be possible that P has learned what kinds of answers are being sought in an assessment, either in the knowledge that others might afford her more freedom, or in an attempt to try to please the assessor. 

Several goes at something and learning what happens following certain answers could be described as a ‘practice effect’: a change that is a result merely from the repetition of a task. 

Although the focus (see Section 2: 21) of the Mental Capacity Act is decision and time specific, it also stipulates “a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself”. There is something ‘magnetic’, as lawyers often say, about being able to follow through from what you say to what you do. A useful article, “When mental capacity assessments must delve beneath what people say to what they do”, tries to marry the assessment process with the real world. The authors say: 

“In our experience, and based on research we are undertaking, we have found that many professionals in the health and social care sectors have artificially created a ‘rule’ that suggests ‘material time’ means only considering a person’s capacity to make a specific decision at the time of the conversation with the person. This means they do not always consider observational real-world evidence from families, carers or professionals as part of the capacity assessment, even when this may be applicable to the decision in hand.”

Could it be possible that the ‘material time’ for P is not necessarily when she is ‘calm and collected’? 

Fluctuating Mental Capacity? 

This possibility brings me to Mark Bradshaw’s suggestion of fluctuating capacity. I have read a lot more about the concept of fluctuating capacity recently. The NHS website information on the Mental Capacity Act says: 

“Does the impairment mean the person is unable to make a specific decision when they need to? People can lack capacity to make some decisions, but have capacity to make others. Mental capacity can also fluctuate with time – someone may lack capacity at one point in time, but may be able to make the same decision at a later point in time.”

The notion does concern me somewhat – as Lieven J said, she had concerns that ‘having capacity for 5 minutes and then not for the next 5 minutes’ might leave the ‘door open to unlawful detention claims.’

The new draft MCA Code of Practice including Liberty Protection Safeguards includes the following on fluctuating mental capacity: 

While capacity is time-specific, for repeated decisions it may be appropriate to consider the broader time over which the decisions need to be made. If a person is only able to make the decisions at limited periods of the time over which they need to be made, it may be appropriate to proceed on the basis that they lack capacity.”

The draft code gives several examples when fluctuating capacity might be considered. I think it must be very difficult for carers on the ground to work with fluctuating capacity, and for people themselves, who are subject to a judgment or decision that they lack capacity due to fluctuating states of mind, to feel a sense of control in their lives. The balance between protection and autonomy seems at its greatest tension when fluctuating capacity is present. 


Mrs Justice Lieven is in a very difficult position. I think an independent expert assessment of capacity for care and support, and contact, is needed. I understand that the applicant Local Authority requested this and it was declined by the Judge. I think, without it, the three counsel will have a challenging job attempting to summarise, coherently, evidence about P’s capacity, on which Lieven J must rest her judgment. 

What is ‘unwise’? What is ‘incapacitous’?  My sense, for P, from the evidence provided and her mother’s concerns – and the clear difficulty Dr K had in coming down on one side or the other – is that evidence that would “displace the presumption of capacity” is variable.  In real life P’s ability to understand, retain, use and weigh consistently, at the moment the decision is being made, fluctuates – and knowing whether or not capacity is present on any given occasion is nigh on impossible. 

I don’t know how much of the time Section 3 needs to have been met (as queried by the judge) to declare a lack of capacity for these decisions. But if  P  were to be allowed to make care/support and contact decisions herself, I have an inkling that it might end very badly for her. I’m not persuaded that, ‘at the material time’ she would be ‘unwisely’ but capacitously choosing those bad outcomes. 

Could her ‘wishes and feelings’ (though not determinative) be worked out with her when she is not ‘heightened’, in relation to different scenarios – like an advance statement – of what she would (ideally) like for herself in those imagined future situations? The starting point might be her wish to be with people and having friends (her stated wish). How can we make this happen safely?  As Lieven J said: “The last thing I want to do is intrude on P’s autonomy a millimetre more than I need to do to keep her safe.”

The judgment will be handed down soon and we will add the link to this blog. 

Josie Seydel is a Chartered Counselling Psychologist, Dialectical Behavioural Therapist and Mindfulness Teacher with a background in a diverse range of settings including: primary care services, eating disorders services, women’s prison services, adolescent in-patient services and private practice in London’s financial district. She tweets @JosieSeydel76

Claire Martin is a Consultant Clinical Psychologist, Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust, Older People’s Clinical Psychology Department, Gateshead. She is a member of the core group of the Open Justice Court of Protection Project and has published several blog posts for the Project about hearings she’s observed (e.g. here and here). She tweets @DocCMartin

2 thoughts on “A challenging capacity assessment and a professional witness in court

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