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Making decisions for someone with fluctuating capacity

A local authority asks the Court of Protection to make decisions on behalf of someone with fluctuating capacity.

The Court of Protection can only make decisions for people if it is satisfied that they lack capacity. When it makes decisions on behalf of someone, it must make them in their best interests. A best interests decision involves:

  • Considering the person's wishes and feelings,
  • Considering all the circumstances relevant to the person,
  • Considering whether the person will have capacity to make the decision in future and whether the decision can be put off in the short-term,
  • Supporting the person's involvement in acts done for them and decisions affecting them,
  • Considering the views of your carers, family, or people who may have an interest in your welfare, or people you have appointed to act for you.

The man at the heart of this case, PWK, is 24 with autism, a mild learning disability and anxiety. When triggered, his anxiety can become so severe that it seriously interferes with his decision making and the things he say and does, which he generally comes to regret.

PWK lives in a house with one other resident and receives care from a private care agency, funded by s. 117 aftercare. PWK is subject to two to one supervision so his package of care involves a deprivation of his liberty. If PWK had capacity, he could consent to his deprivation but if not, the Court would need to authorise it on his behalf.

The people involved in PWK's care were all in agreement that he lacked capacity but when a new doctor became involved, she questioned this and initially said that when he was calm, he had capacity to make his own decisions.

PWK's local authority asked the Court to decide whether he lacked capacity in relation to:

  • Where he lived
  • The type of care and support he had
  • Contact with other people
  • Using social media and the Internet
  • His finances and property
  • The use and possession of a car he had under the motability scheme

Some things can be decided on a one off basis, like writing a will. Other matters require lots of ongoing and repeated decision making like deciding to continue living somewhere or to continue receiving a certain type of care package.

The Court decided that although PWK sometimes appeared to have capacity, the unpredictability of his anxiety and the enormous impact it has on his life and his decision making, meant that he wasn't able to make ongoing and repeated decisions. The Court found that he lacked capacity in all areas and authorised the care package and deprivation of liberty as being in PWK's best interests. The Court directed that the deprivation of liberty should be reviewed by the Court every year.

You can read the case judgment of Cheshire West And Chester Council v PWK [2019] EWCOP 57 here.

Mind's comment

In this decision, the Court distinguishes the ability to make one off decisions at a fixed point in time from the ability to make ongoing decisions, where decisions may often be required at short notice. In doing so, the Court was able to decide that PWK lacked capacity in all the relevant areas including where he lived and the type of care and support he received.

Making the decision in this way means that the people involved in PWK's care are not being asked to regularly determine PWK has capacity. However, the best interests principles still require them to consider whether PWK could regain capacity in the future and to determine his past and present wishes and feelings.

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