Judge: HHJ Parry
Citation:  EWCOP B27
This case was concerned with the capacity of MB to make decisions about his residence, care and contact arrangements. It is the culmination of a series of judgments, the first being reported in 2007.
MB had since 2007 been treated by the local authority providing care to MB, all the Court instructed experts, MB’s litigation friend and ultimately the Court as someone who lacked capacity to make decisions as to his residence, care assessment and treatment for his learning difficulties, epilepsy, autistic spectrum disorder behavioural problems and as to the nature and extent of his contact with his mother.
In 2017, in the course of yet further litigation, the court received a report from Dr Leighton, an independently instructed Consultant Psychiatrist. Dr Leighton was of the view that MB had capacity to make the relevant decisions, but “would, from time to time, in circumstances that could not be accurately predicted, lose capacity to make decisions about his immediate wellbeing.“ Dr Leighton was unable to predict the duration of that loss of capacity: “[i]t could be ‘for a matter of hours or even for a matter of days.’”
The judge was clearly troubled at to what could have caused what she described as a radical change in MB’s capacity to make decisions. A second consultant psychiatrist was therefore instructed to report – Dr Lisa Rippon. Her report concurred with Dr Leighton’s. The two experts produced a joint statement. This paragraph is set out in the judgment:
Both Dr Rippon and Dr Leighton agreed that MB’s capacity could fluctuate during times of seizure activity but also when his level of anxiety rises and he becomes distressed because of environmental triggers. It was Dr Leighton’s view that these periods could last for several days and he gave the example of the time that MB had become angry with his RPR and had refused to see her for a week. However, what is less clear is whether his capacity was affected over the whole of this period. Therefore, although both doctors agreed that MB’s capacity had fluctuated, what is less certain is how long these periods could last.
The parties did not wish to challenge the expert evidence, and submitted a consent order bringing the proceedings to an end on the basis that the Court lacked jurisdiction over MB. Her Honour Judge Parry held that she was:
satisfied on the basis of the evidence that is placed before the Court that I should approve the consented disposal of these proceedings. I do so on this basis, all Courts make decisions on the evidence that his presented to that, to that extent, the Court is the servant of the evidence that is provided by the parties. Whilst the Court has an overall directing role in identifying the type and nature of evidence that it requires to make decisions, ultimately those decisions must be faithful to the evidence that is capable of being accepted.
It would therefore be illogical for the Court to arrive at a different position from that which is jointly argued for on the basis of evidence which is jointly accepted as valid.
The difficulties this would pose those providing services to MB on the ground was not lost on HHJ Parry QC, who noted that:
It is a clear undercurrent in these proceedings that those who know MB particularly well, including those who have been providing care to him over a number of years and his social worker, have worries about MB’s future and how he will adapt to the changes that may become open to him. There are also understandably legitimate concerns and worries as to the impact upon him of making changes to a routine that he has become very used to over the last nine years or so. Those are legitimate concerns for professionals to have both at a personal and professional level for MB.’
Lastly, HHJ Parry noted that the “proceedings conclude without any clarity as to what alternative care arrangements could be made available for MB” but unsatisfactory as this was, she correctly identified that this was no longer the concern of the Court.
This case is an interesting example of what the court should do in the face of joint expert evidence as to capacity that it does not find convincing. Reading between the lines, it appears as if the judge felt that her hands were tied by the parties’ willingness to accept that evidence.
While it is difficult for a court to take a different approach to that of the parties, the court’s jurisdiction is ultimately an inquisitorial one. It would have been interesting to see what the court had done had (as is not uncommon) all the evidence been to the effect that MB lacked capacity but the court was not satisfied as to its quality. There is, of course, the asymmetry introduced by the presumption of capacity, but HHJ Parry did not make express reference to this. Further, what is not clear from the judgment is whether was an exploration of (1) the extent to which the current care package was maximising MB’s capacity (by reducing his anxiety and minimising the environmental triggers that may cause him to slide into incapacity); and (2) the likelihood of him losing the capacity to make decisions in the absence of the care package.
We suggest that this could have been a legitimate avenue of exploration in this case. There are cases in which it is only after a period of time in which a care package has been imposed on P via the MCA (in respect of a non-compliant diabetic for example), that P is able to make capacitous decisions. Once P has regained capacity to make decisions about care (and makes the unwise decision to refuse all care), P’s health declines and P again loses the capacity to make decisions about care. We suggest that the court must have power in a case of that nature to put in place a regime that kicks in once P loses capacity, and we have had – unreported – experience of the court making ‘contingent’ declarations/decisions to cater for sufficiently foreseeable circumstances.