A judge has set out a way forward for the Court of Protection to grapple with the difficult issue of fluctuating capacity, writes Alex Ruck Keene.
In Cheshire West And Chester Council v PWK  EWCOP 57, Sir Mark Hedley had to consider (in the context of a s.21A challenge) whether a young man, PWK, had capacity to make decisions in relation to residence; care and support needs; contact with others; social media and the internet; financial and property affairs; and lastly, use or possession of his car provided by the Motability scheme.
Until the involvement of Dr Lisa Rippon, a consultant psychiatrist, it had always been the common view of those involved that PWK lacked capacity in each relevant area. Dr Rippon the challenged this view. However, having had the opportunity to consider all the information in the case, in her third report, she revised her views and found that he lacked the relevant capacities. Inevitably, her views had to be explored with some care and, given the inherent complexity of the case, it was listed before a tier-three judge (i.e. a Judge of the High Court) As Sir Mark noted:
9. As Dr Rippon’s evidence proceeded, the true difficulty became clear. When PWK was relaxed and in a good place he might well be regarded as having capacity. However, when he became anxious his position could be very different. Moreover, there were many things that could trigger anxiety and quite often his carers would be confronted with irrational behaviour that could be difficult to manage.
The question therefore arose as to how the legal position should be addressed. Sir Mark identified that:
15. in this case there is likely to be a particular focus on understanding relevant information, retaining it and using or weighing it. There will be many occasions when PWK is hampered by anxiety when those grounds are clearly made out. However, that will not always be the case. It may fluctuate. The question is how the law deals with that.
16. In Royal Borough of Greenwich v CDM  EWCOP 15, Cohen J made a declaration of fluctuating capacity. There are, as it seems to me, two potential difficulties with that approach. The first is the question of whether the statute actually permits the making of a declaration in those terms. The second is that there is the practical problem of how those responsible for PWK’s care could in fact operate such a declaration on the ground. It is not, of course, my place to say that this decision was wrong in the circumstances of that case, but I do believe that PWK’s case requires a rather different perspective.
17. I take the liberty, if I may, of adopting the position that I sought to set out in my judgment in A,B & C v X, Y & Z  EWHC 2400 (COP). There I was dealing with a person with some fluctuating capacity. I sought to draw a distinction between isolated decisions, for example, making a will or power of attorney, and cases where decisions may regularly have to be taken sometimes at short notice, as for example, in managing one’s own affairs.
18. In paragraph 41 of the judgment I expressed myself as follows:
‘In the light of Dr Posser’s evidence, I am satisfied on balance that he lacks capacity to manage his own affairs. In so finding I acknowledge, as I have done in relation to the other matters, that there would be times when a snapshot of his condition would reveal an ability to manage his affairs. But the general concept of managing affairs is an ongoing act and, therefore, quite unlike the specific act of making a will or making an enduring power of attorney. The management of affairs relates to a continuous state of affairs whose demands may be unpredictable and may occasionally be urgent. In the context of the evidence that I have, I am not satisfied that he has capacity to manage his affairs.’
19. 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, in particular subsections (3) and (6) which provide as follows:
‘(3) He must consider –
(a) whether it is likely that the person will at some time have capacity in relation to the matter in question, and
(b) if it appears likely that he will, when that is likely to be.
(6) He must consider, so far as is reasonably ascertainable –
(a) the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),
(b) the beliefs and values that would be likely to influence his decision if he had capacity, and
(c) the other factors that he would be likely to consider if he were able to do so.’
20. It seems to me that the closer the protected person is at the moment of actual decision to capacity, the greater the weight that his views must carry and of course, any decision made must take in to account that he may acquire capacity and, therefore, it must not be beyond change.
On the facts of the case, Sir Mark found that:
21 […] all the relevant decision-making with which I am concerned lies in the field of repeat rather than isolated decisions. Dr Rippon’s view, which was not really the subject of challenge, was that where a longitudinal perspective was adopted then PWK lacked capacity in all relevant areas.
Sir Mark declined then to give detailed directions under s.4 MCA 2005, it being:
26. […] enough to say that the detailed care package provided under Section 117 of the Mental Health Act 1983 is, as it seems to me, entirely in his best interests and that it is further both proportionate and in his best interests to deprive him of his liberty to the extent implicit in that package. The details are matters to be worked out on the ground on the basis of decisions made in accordance with Section 4 by those responsible for his care.
In terms of the car, Sir Mark Hedley noted that it was a:
28. […] controversial matter. However, three things are clear: first, that PWK cannot drive it himself; secondly, no one can compel an unwilling carer to drive it for him; and thirdly, no one has attempted to assert a right to drive in the face opposition from the care providers. However, possession of the car and access to it and use of it, even whilst stationary, have proved to be controversial. As I say, matters relating to this wholly dominated PWK’s written observations and in particular his second address to me.
29. Having reflected with care on this, I have concluded that PWK lacks capacity to make decisions about the use of his car. I am not convinced that he is always able to retain all the necessary information. However, I am amply satisfied that, because of the acute anxiety that this subject generates in him, he is unable to use and weigh that information as part of the decision-making process.
30. It is not for me, again, to make best interest determinations about this for it is necessarily part of the care package. I am satisfied that both the social worker and the care providers understand the importance of this matter to PWK and will take account of that. It may be wise that, if the decision is to remove the vehicle, to ensure that it is done at the behest of Motability rather than the Local Authority or the care providers as I think PWK might find that an easier decision to accept.
Sir Mark expressed himself with characteristic tact in relation to the rather problematic first decision in CDM’s case. The judgment in the present case was given in July 2019 (but not published on Bailii until much later in the year); it therefore predated the second decision in CDM’s case in which Newton J took a rather different approach, much closer to that adopted by Sir Mark (in that case, framed as distinguishing between macro- and micro- decisions). It is respectfully suggested that the approach of Sir Mark and Newton J provide the right way forward for the Court of Protection to grapple with the difficult issue of fluctuating capacity. Outside the court setting, professionals are (strangely) in an easier position of ‘only’ having to explain why at any given point they had a reasonable belief that the person had or lacked capacity. Hopefully the next iteration of the Code of Practice will provide further guidance to them in this regard.