Judge: Lieven J
Citation:  EWCOP 65
In this case, Lieven J was concerned with the capacity and best interests of a 29 year old woman, CVF, with diagnoses of diabetes, learning disability, emotionally unstable personality disorder, low self-esteem and feelings of abandonment. Her mother had made a personal personal welfare application in January 2018. The application stated that “CVF is a vulnerable women whose capacity to consent to sex, to make decisions in respect of contact with unknown men and to make decisions in respect of her care is in dispute” and that it “would benefit CVF for there to be clarity in relation to her capacity and whether any best interest decisions need to be made. At present … there is a high level of police intervention and numerous safeguarding referrals due to there being no agreed position on CVF’s capacity“. The local authority had, by order of the court, substituted as applicant, and the proceedings transferred to a Tier 3 (i.e. High Court) judge.
As so often, the proceedings had had a long backstory, and they had also taken a considerable number of twists and turns before their final resolution. Before Lieven J at the final hearing, questions of capacity in the relevant domains having been resolved, there were three issues, addressed in turn below.
Level of care
JF, representing herself, submitted that her daughter required 24/7 care. Lieven J observed that CVF did not wish such care, considering it to be intrusive and stopping her being independent. As Lieven J observed at paragraph 20, “[s]he wants more autonomy, and, in my view, she has a right to more autonomy.” Lieven J, however, “fully appreciated,” her mother’s concerns:
Lieven J’s reasons for holding that the reduction in care was in CVF’s best interests were crisp:
In summary, firstly, the reduction in care accords with CVF’s wishes and feelings under section 4(6) MCA 2005. Secondly, it is the least restrictive option under section 1(6) MCA 2005. Thirdly it is proportionate under Article 8 ECHR. Fourthly, it accords with CVF’s best interests as in my view it is positively detrimental for CVF to have 24/7 care at the moment as all it serves to do is to make her feel undermined, triggers disruptive behaviours and reduces her motivation to become more independent and to improve functional abilities. Fifthly, to reduce the care in this way reflects the reality what CVF is currently receiving.
She also referred to the well-known passage from the decision of Munby J in Local Authority X v MM & Anor  EWHC 2003 (Fam) and the importance of understanding that those who lack capacity, must, to a proportionate degree, be allowed to take risks and to test out their own capabilities. It is not the function of the Court of Protection to remove all possible risk and protect the individual at the expense of a proportionate balance. As Munby J identified, “[w]hat good is it making someone safer if it merely makes them miserable?”
Whether the local authority should be substituted for JF as CVF’s deputy for property and affairs
Lieven J had little hesitation in acceding to this position:
Whether JF should be appointed as CVF’s personal welfare deputy
JF’s application was made on the basis that she considered “that the Local Authority and NHS Trust have failed to keep CVF safe, that they have underestimated the risks she is facing and are too amenable to accepting what she says despite the history of behavioural risks. JF feels that the Local Authority and the Trust have allowed CVF to be exploited over the last few months” (paragraph 27).
Lieven J directed herself by reference to the decision of Hayden J in Re Lawson, Mottram and Hopton (Appointment of Personal Welfare Deputies)  EWCOP 22, and in particular his observation that the structure of the MCA 2005 and, in particular, the factors which fall to be considered pursuant to the best interests test in s.4 may well mean that the most likely conclusion in the majority of cases will be that it is not in the best interests of P for the court to appoint a personal welfare deputy.
Lieven J agreed with the local authority that, on the facts of the case, it was not in CVF’s best interests for her mother to be appointed as her personal welfare deputy:
Lieven J’s judgments in this domain are often marked by a particular and close attention to the requirements of the ECHR alongside those of the MCA (see, for instance, Re KR  EWHC 2498 (Fam)). This is no exception. This case shows why it is both necessary (as the Court of Appeal has previously held) and helpful to stress-test matters not just by the best interests criteria set down in s.4 MCA but the ECHR requirement to consider the necessity and proportionality of the relevant interference with the right to autonomy enshrined as an aspect of the right to respect to private life protected by Article 8(1) ECHR). Looking at matters through this prism, and in particular having close regard to the autonomy right of CVF, made clear the correct outcome of both the decisions in relation to the level of care she required and in relation to both deputyship applications.