Capacity in context – a paradigm case
Alex Ruck Keene KC (Hon) analyses a recent ruling where the judge’s observations about capacity, and in particular how to approach questions of capacity under constraint, are of broader application.
A Local Authority v KP [2023] EHWC 3210 (Fam) is a case not easily reducible to a short summary. In very broad outline, however, it concerned a significant dilemma as to the steps to be taken to safeguard the interests of an 18-year-old woman with cognitive impairments who did not – or could not – understand the risks to which she was at from her mother’s partner. The dilemma was accentuated by the fact that previous steps taken by the local authority to remove the woman from her mother’s house had not only not worked, but they had also had a serious impact on the young woman’s mental health.
In a detailed and careful judgment, David Lock KC made a number of observations about capacity in particular which are of wider application. As he identified, the two key areas of decision-making for KP were capacity to decide whether to live in a property with her mother’s partner, D, and the ability to make the decision whether to have contact with him. The expert evidence before him, which he accepted, told David Lock KC two things:
69. First, the precise extent to which KP has a lack of capacity remains unclear and that further tests need to be undertaken to test the extent to which KP has capacity to understand how others are functioning and thus make her own decisions. Secondly, that KP may well have fluctuating capacity depending on the extent of her dysregulation. On a good day she may well be able to understand enough to make decisions for herself but may not be able to do so when her mind is dysregulated. However, Dr Kliman does not suggest that KP ever has capacity in respect of making decisions about contact with D because her mindset is so affected by his influence and by her mother’s staunch refusal to accept that D presents any risk to KP at all.
[…]
71. The City of York case [PC & Anor v City of York Council [2013] EWCA Civ 478] confirms that, in order for KP to have capacity to decide whether she should share accommodation with D or have any contact with him, she needs to have some degree of understanding that D’s previous convictions and his character presents some risk to her and, she must, to some extent understand that spending time with him gives rise to such a risk. If she is able to understand that information, she next needs to be able to use and weigh that information about risk in making the decision whether she should share accommodation with D or have any contact with him.
72. In my judgment, the evidence is clear that KP has no real degree of understanding that D’s previous convictions and his character presents any degree of risk to her. She, like her mother, refuses to accept that D presents any risk to her. She not only refuses to accept that D presents a risk but, in my judgment, she is unable to do so because she does not have the ability to engage with the idea that D and her mother may not be right about this issue. I accept the evidence from Dr Kliman that KP has relied on and accepted the assurances given by her mother over and above any concerns raised by her social workers or support workers and so refuses to accept that D presents any risk whatsoever. In my judgment, the evidence shows that D is by far the dominant figure in this household and, due to the poor cognitive functioning of both KP and J, D has a considerable ability to mould and shape how both KP and her mother see the world. They are clearly acting under his influence and it is an influence that he is keen to maintain, as the social workers saw in September 2023 when he rather than J accompanied KP to a meeting with the social workers.
75. I consider that there is a real possibility that D is seeking to exert influence over KP because he wishes to keep her living with him and J for his own purposes. At this stage, it is not clear what those purposes are but there is a relatively high risk that whatever he has in mind for KP, that will not be objectively judged to be in her best interests.
76. KP will only lack capacity to make her own decisions about sharing accommodation with D and having contact with him if she is unable to understand the risks to her from doing so because of her impairment of the mind or brain. I am satisfied, based on the evidence of Dr Kliman, that her inability to understand the risks that D presents are substantially caused by her inability to envisage circumstances being different to how she sees them at the moment. That inability to see and assess the risks of a counterfactual situation appears to me to arise directly from a combination of her autism and her learning difficulties.
David Lock KC, however, was very clear that KP’s situation was one directly covered by s.1(3) MCA 2005, because the evidence before him was that it was possible that, with some targeted and focused psychological support over a period of weeks or even months, KP might gain an understanding about D’s risks and thus might reach the position where she was able to understand the risks that D presented. He therefore felt unable to make a final determination (as opposed to an interim one under s.48) that KP lacked capacity in the material domains until all reasonable steps had been taken to undertake the relevant work. He also noted that, at that point, “serious issues” (paragraph 80) would arise as to whether she was nonetheless sufficiently vulnerable that the inherent jurisdiction should be invoked.
The Court of Protection’s best interests jurisdiction therefore being in play, David Lock KC identified that there were:
89. […], at present, no “good options” here. Allowing KP to continue to live with a registered sex offender cannot be considered to be a good option, particularly where he may have assaulted her in the past (although that is unclear) and is on bail under suspicion of having committed further offences. Nonetheless, at this stage, it is the only option available to me. I therefore invite the Local Authority to prepare a plan setting out how they propose to support KP and keep KP as safe as is reasonably practicable (and allowing her to keep her job) on the assumption she continues to live at J’s house. That plan should set out any injunctive relief that the Local Authority invites the court to provide in order to ensure that KP remains safe.
In the meantime, pending the preparation of that plan, David Lock KC set out a number of orders he was prepared to make to protect KP, primarily directed to enabling the local authority to work with KP in the absence of J and D.
Significantly, the judgment contains the following postscript:
94. This hearing took place on 22 and 23 November 2023 and KP was present at the hearing with her solicitor throughout the hearing. Since circulating this judgment in draft, I have been told that, on 25 November following the hearing, KP made her own decision to leave J’s house and temporarily moved in with her boyfriend at his parent’s house. She said she has blocked D and says is not going to talk to him again. She has also made a series of disclosures which suggest that D may be grooming her towards a sexual relationship with him or someone else.
95. The Local Authority have seen KP on multiple occasions since the hearing and KP has been shown supported accommodation in another area which she likes. The Local Authority are also making efforts to seek to get her employment transferred to a hotel which is local to her new place of residence. Her email to the social worker said “I’m going to start getting my life together and thank you G for opening my eyes wish I could hug you”. Whilst I am conscious that KP’s learning difficulties and ASD mean that her views could change again, I welcome this development. The overall evidence the careful and sensitive way in which this case was conducted in front of KP has played a significant part in her change of mind. I wish her well for the future.
As noted above, the observations about capacity, and in particular how to approach questions of capacity under constraint, are of broader application. They reflect the approach adopted in Singapore under the equivalent (identical) legislation in Re BKR, in which the Singaporean Court of Appeal made clear that it is legitimate to take account of the person’s actual circumstances when determining their current ability to make decisions about those circumstances. Importantly, as the judgment in the instant case emphasises, however, what might be said to be a broad approach to decision-making capacity carries with it the corollary of an acute focus on s.1(3) MCA 2005 and the steps that can be taken to support the person to recognise the impact of their circumstances upon them.
Those wanting to think further about these issues may also find of interest this shedinar discussion with Dr Kevin Ariyo about the research work of the Mental Health and Justice Project about interpersonal influence, and this book on relational autonomy in practice.
Alex Ruck Keene KC (Hon) is a barrister at 39 Essex Chambers. This article first appeared on his Mental Capacity Law and Policy blog.
