Judge: Theis J
Citation:  EWHC 3230 (Fam)
Summary: These long-running proceedings began nearly six years ago, the previous judgments being  EWHC 2422,  EWHC 2419,  EWCA Civ 79,  EWHC 439. L was born in 1983 and had learning disabilities with an IQ of 59. His incapacity to decide on residence, care and contact was not previously in dispute but was considered to be borderline. In the first judgment, reported at  EWHC 3230 (Fam) (but only recently made publicly available), Theis J concluded that a further assessment of L’s capacity was required. Five months later, in the second judgment, reported at  EWHC 4170 (Fam), L was found to have capacity but the inherent jurisdiction was invoked to protect him.
In the first judgment, the capacity assessment of a social worker was preferred to that of a doctor. The court highlighted the need for evidencing a clear rationale; guarding against imposing too high a test of capacity; the importance of using tangible resources, like drawings and pictures, to assess and improve the person’s level of understanding; and clearly articulating the information relevant to the decision. MCA s.3(4) refers to “reasonably foreseeable consequences” only and such information will of course differ according to the decision. But it may assist capacity assessors to know what information was and was not relevant when assessing L’s capacity to make the following decisions.
Capacity to decide as to residence:
1. what the two options are, including information about what they are, what sort of property they are and what sort of facilities they have;
2. in broad terms, what sort of area the properties are in (and any specific known risks beyond the usual risks faced by people living in an area if any such specific risks exist);
3. the difference between living somewhere and visiting it;
4. what activities L would be able to do if he lived in each place;
5. whether and how he would be able to see his family and friends if he lived in each place;
6. in relation to the proposed placement, that he would need to pay money to live there, which would be dealt with by his appointee, that he would need to pay bills, which would be dealt with by his appointee, and that there is an agreement that he has to comply with the relevant lists of “do”s and “don’t”s, otherwise he will not be able to remain living at the placement;
7. who he would be living with at each placement;
8. what sort of care he would receive in each placement in broad terms, in other words, that he would receive similar support in the proposed placement to the support he currently receives, and any differences if he were to live at home; and
9. the risk that his father might not want to see him if L chooses to live in the new placement.
1. the cost of the placements;
2. the value of money;
3. the legal nature of the tenancy agreement or licence;
4. what L’s relationship with his father might be in 10 or 20 years’ time if he chose to live independently now were not relevant.
Capacity to decide as to contact with others:
1. who they are and in broad terms the nature of his relationship with them;
2. what sort of contact he could have with each of them, including different locations, differing durations and differing arrangements regarding the presence of a support worker;
3. the positive and negative aspects of having contact with each person. This will necessarily and inevitably be influenced by L’s evaluations. His evaluations will only be irrelevant if they are based on demonstrably false beliefs. For example, if he believed that a person had assaulted him when they had not. But L’s present evaluation of the positive and negative aspects of contact will not be the only relevant information. His past pleasant experience of contact with his father will also be relevant and he may need to be reminded of them as part of the assessment of capacity.
1. abstract notions like the nature of friendship and the importance of family ties;
2. the long-term possible effects of contact decisions;
3. risks which are not in issue, such as the risk of financial abuse.
Capacity to decide on care:
1. what areas he needs support with;
2. what sort of support he needs;
3. who will be providing him with support;
4. what would happen if he did not have any support or he refused it;
5. that carers might not always treat him properly and that he can complain if he is not happy about his care.
1. how his care will be funded
2. how the overarching arrangements for monitoring and appointing care staff work.
The judge accordingly required capacity to be investigated further before the court could finally determine the application. By the time of the second judgment, five months later, L was judged to have capacity to decide on residence, care and contact, although it was still borderline. Theis J observed that L remained vulnerable to overwhelming emotional issues which could compromise his capacity. Emotional safety would best promote his retention of capacity. And this required “a proportionate structure in place that enables him to be able to maintain his capacity in a relatively calm environment, and free from the emotional maelstrom, as I have described it, resulting from the relationship that he has with his father in particular, and the relationship the father has with those who support L in the care that he has.” Accordingly, invoking the inherent jurisdiction, her Ladyship made orders which restricted L’s father from having contact with him and his care team.
Comment: These KLM decisions are very useful in terms of breaking down the core components of relevant and irrelevant information to three classes of decision. Insofar as they relate to residence, the first decision can usefully be read with the decision in LB Islington v QC noted in this month’s Property and Affairs Newsletter. They also highlight the importance of the second statutory principle, to take all practicable steps to help the person decide. The assumption of, and being required to max-out the prospects of, having capacity are key to the promotion of autonomy. They illustrate that, with proper care and attention, someone of borderline capacity may regain and thereafter retain the ability to decide for themselves. Moreover, it is important for capacity assessors to identify the salient details of the relevant decision. And the first judgment provides a very helpful illustration for practitioners. Crucially, the bar must not be set too high. We must not expect more from those with mental impairments than we do from those without. Otherwise Article 8 –embodying as it does many aspects of our free society – will not be universal.
The second, inherent jurisdiction, decision exemplifies how the great safety net can be invoked to set out the parameters to enable people to be unencumbered by others’ influences so as to decide for themselves. This is – we suggest – precisely how the inherent jurisdiction is intended to operate (and is therefore to be contrasted with the PB decision discussed in this month’s Practice and Procedure Newsletter).