Judge: HHJ Davies
Citation:  EW Misc 26 (CC)
In CA v A Local Authority & Anor  EW Misc 26 (CC), HHJ Davies had to consider whether CA had capacity to make decisions in relation to her residence in the context of medical evidence concluding the CA had fluctuating capacity. The assessor had, however, determined that at the time of his assessment that she had capacity to make the relevant decision.
CA is 46 years old. She has been diagnosed with schizophrenia and a mild learning disability. She is deaf, registered blind, and has cerebral palsy on her left-hand side. She had been living in a British deaf home since September 2019 and had been asking to leave it.
The local authority’s position was the issue should be adjourned for a further assessment by the clinician, given that the assessment had taken place in January and the hearing was in November. CA (supported by her litigation friend) invited the court to find that lacks capacity because of her current mental state – her mother supported that view.
HHJ Davies considered the decision of Sir Mark Hedley in Cheshire West v PWK   EWCOP 57 and observed that Hedley recommended a “longitudinal approach”, noting at  of the CA judgment:
By that I mean I am not looking at a snapshot decision, but I am looking at an overall view, if I can put it like that. In that case he said: “It is important to recognise in this case that 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”.
HHJ Davies noted that a distinction is made between, on the one hand, “the general concept of managing affairs [as] an ongoing act” and a specific act of making a will, on the other. The former is a continuous state of affairs, the demands of which may be unpredictable and sometimes urgent.
On the evidence, HHJ Davies accepted that CA exhibited signs of being very unhappy and possibly depressed (but she did not have any medical evidence in respect of diagnosis). CA’s mental health had suffered during lockdown; and the decision in respect of her residence was extremely stressful and very emotive. HHJ Davies referred to an example of CA being offered a specific placement but she was unable to give her view on it. HHJ Davies determined that CA lacks capacity to decide where to live; and that an ‘ongoing act deciding about where she should live, her care and support’.