This judgment was handed down remotely at 10.30am on 13 March 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
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THE HONOURABLE MR JUSTICE COBB
The Honourable Mr Justice COBB :
Introduction
- The underpinning philosophy of the Mental Capacity Act 2005 ('MCA 2005') is a presumption that an adult has full legal capacity to make decisions for themselves. Only if it can be shown that they lack capacity to make relevant decisions at the time they need to be made is the jurisdiction of the MCA 2005 engaged. Thus, determination of an adult's capacity represents the crucial jurisdictional gateway to the exercise of the Court of Protection's powers to make orders, as appropriate, under the MCA 2005. It is in that important exercise of determining capacity that I find myself engaged in this application.
- It is now well-established by the caselaw that the capacity of the subject (P) in any given case is to be assessed in relation to the particular decision, transaction, or activity involved. P's mental impairment may deprive them of capacity to make some decisions, yet not deprive them of capacity to make others. There are cases where over time P gains capacity and/or loses it; in other cases P may display fluctuating capacity. These scenarios all apply to a greater or lesser extent in this case, in which the determination of P's capacity has proved to be a challenge over several years.
- In rising to the challenge in this case for a second time (see §5 below), I have received evidence from Ms A and Ms B, experienced adult care social workers from the applicant local authority, Calderdale Metropolitan Borough Council ("Calderdale"), I have a jointly instructed expert opinion from Dr Rebecca O'Donovan, Consultant Forensic Psychiatrist, and have specialist solicitors and leading and junior counsel to assist. However, the evidence is troublesome in several respects (see §§77-92 below), and the professionals do not all agree. The parties themselves, through their counsel, urge different outcomes on the individual facts of this unusual case. The evidence took two days of court hearing time, and closing submissions followed in writing. I reserved judgment.
- The application before the Court concerns Stitch; she is a 31 year old woman. Stitch is not her real name, but is the name by which she has specifically chosen to be referred in this judgment[1]. She currently lives in supported rented accommodation which is in the area of, and funded by, Calderdale; she receives care from an independent agency commissioned by Calderdale. I shall refer to her accommodation as 'Oak House'[2]. Stitch appears in these proceedings by the Official Solicitor as her litigation friend. The Second Respondent is Stitch's mother, MS; she too lacks litigation capacity, and appears separately by the Official Solicitor as her litigation friend.
- Proceedings under the MCA 2005 were first brought in respect of Stitch in 2019 ('the first round of proceedings'). I was the allocated judge in those proceedings, and over a period of time made a number of substantive decisions about Stitch, both interlocutory and final. Stitch's decision-making capacity was a live issue for the duration of those earlier proceedings, which were aptly described by Calderdale in its more recent COP1 application as "lengthy and complex". At the conclusion of those proceedings (and for reasons more fully explained at §22 below), I concluded on the evidence, including the expert evidence from Dr O'Donovan, and with the concurrence of all parties, that Stitch had decision-making capacity in most areas of her life.
- However, almost as soon as that order had been made, concerns re-surfaced among the staff at Oak House about Stitch's capacity in a number of areas. Further assessments of capacity were undertaken by Calderdale social workers over several months, and in May 2024, Calderdale issued a fresh application for best interests declarations and orders under the MCA 2005.
- Within that application, consideration has once again had to be given to Stitch's capacity in the following areas of her life:
(a) To conduct this litigation;
(b) To make decisions about residence;
(c) To make decisions about her care;
(d) To make decisions about contact with others;
(e) To make decisions in relation to internet social media use;
(f) To engage in sexual relations.
- Given the length of this litigation (in its two phases) and the issues involved, I considered it necessary to rehearse in a little more detail than may be usual my reasoning in this case. For the key conclusions, attention is drawn to §§98-121.
The relevant law
- The capacity issues which fall for determination in this application warrant a return to first principles, with a focus again on the preliminary provisions of the MCA 2005 (i.e., sections 1-8 inclusive). This opening part of the MCA 2005 is well-known, and I shall not reproduce it verbatim here. The essential features which have guided my approach in this case can be summarised thus:
(a) There is a presumption (strictly speaking it is an 'assumption') of capacity (section 1(2) MCA 2005); as I have mentioned in §1 above, this is central to the statutory scheme, and is unqualified. As Lord Stephens described it in A Local Authority v JB [2021] UKSC 52 ('Re JB') at [49]: "all dealings with persons who have an impairment of, or a disturbance in the functioning of, the mind or brain [are] to be based on the premise that every individual is competent until the contrary is proved"; the burden is on the person asserting a lack of capacity, in this case, Calderdale;
(b) A person is not to be treated as unable to make a decision unless all practicable steps to help her/him to do so have been taken without success (section 1(3) ibid.);
(c) A person is not to be treated as unable to make a decision merely because she/he makes an unwise decision (section 1(4) ibid.); as Lord Stephens observed in Re JB ([51]):
"… an important purpose of the MCA is to promote autonomy … If P has capacity to make a decision then he or she has the right to make an unwise decision and to suffer the consequences if and when things go wrong. In this way P can learn from mistakes and thus attain a greater degree of independence";
Lewison LJ made a similar point in PC & NC v City of York Council [2013] EWCA Civ 478 ('City of York') at [64]: "… adult autonomy is such that people are free to make unwise decisions, provided that they have the capacity to decide";
(d) The core determinative provision within the statutory scheme for the assessment of whether P lacks capacity is section 2(1) ibid., namely: "a person lacks capacity in relation to a matter if at the material time he is unable to make a decision in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain". Lord Stephens in Re JB at [59] described its application in this way: "Section 2(1) is the single test, albeit that it falls to be interpreted by applying the more detailed description given around it in sections 2 and 3"; it should be emphasised that the first question is whether P is 'unable to make a decision for herself in relation to the matter', the second question focuses on the mental health element – "because of an impairment of, or a disturbance in the functioning of the mind or brain". He continued:
"The second question looks to whether there is a clear causative nexus between P's inability to make a decision for [herself] in relation to the matter and an impairment of, or a disturbance in the functioning of, P's mind or brain" (Lord Stephens: Re JB at [78]);
(e) The 'material time' is when the decision needs to be made: where the court is involved, then as I said in Re Z [2016] COP 4 at [60]: "As the wording of the statute makes clear, the point in time at which … capacity is to be tested is now (i.e. "at the material time")";
(f) Determination of capacity under Part I of the MCA 2005 is always 'decision specific' having regard to the clear structure provided by sections 1 to 3 of the MCA 2005; the court is concerned to look at the 'decision' being made 'at the material time': that is to say that the focus must be on P's capacity to make a specific decision;
(g) Pursuant to s 3(1) of the 2005 Act a person is "unable to make a decision for himself" if he is unable (a) to understand the information relevant to decision, (b) to retain that information, (c) to use or weigh that information as part of the process of making the decision, or (d) to communicate his decision whether by talking, using sign language or any other means; it should be remembered that the fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision;
(h) The bar for assessing capacity must not be set too high: Sheffield City Council v E [2004] EWHC 2808, para. 144 per Munby J (as he then was);
(i) As I have mentioned in (c) above, but repeat for emphasis, it is part of the function of the Court of Protection to promote and protect the autonomy of those who are the subjects of proceedings; pe Hayden J in Warrington BC v Y (By her litigation friend the Official Solicitor), AB and CD [2023] EWCOP 27 at [29]:
"The danger of elevating the instinctive need to protect a vulnerable adult to such a degree that it corrupts the integrity of an objective assessment of capacity, is an ever-present danger in this sphere of work and requires vigorously to be guarded against. Paternalism has no place; protection of individual autonomy is the magnetic north of this court."
- I have not been referred to any specific judicial interpretation of the phrase "decision for himself" in "… unable to make a decision for himself in relation to the matter…" (underlining added), but there is neither need nor justification for the plain words of the statute to be embellished. It seems to me that this ordinary phrase means that P takes decisions on their own, based on their own values, beliefs, preferences, attitudes and reasoning (hence, 'use or weigh' in section 3(1)(c)), rather than relying on others to make or materially contribute to those decisions. This short phrase imports the crucial component of autonomy and freedom into the MCA 2005, whether in small daily decisions or major life choices. Making a decision for oneself reflects succinctly the important role of personal responsibility and self-determination.
- Fluctuating capacity has been raised as an issue in the case. I discuss this issue (with reference to the case law) on these facts more fully below (§101-108); I have considered again what Lord Stephens said about this in Re JB at [64]:
"Capacity may fluctuate over time, so that a person may have capacity at one time but not at another. The "material time" within section 2(1) is decision-specific (…). The question is whether P has capacity to make a specific decision at the time when it needs to be made. Ordinarily, as in this case, this will involve a general forward-looking assessment made at the date of the hearing. However, if there is evidence of fluctuating capacity then that will be an appropriate qualification to the assessment". (Emphasis by underlining added).
- In resolving the issues in this case, I have been careful to guard against reaching a false conclusion on capacity driven by my view of what may be regarded as 'good' decision-making by Stitch and/or 'bad' or unwise decision-making by her. As McFarlane LJ put it in City of York (at [53]):
"… the court's jurisdiction is not founded upon professional concern as to the 'outcome' of an individual's decision".
I specifically draw attention to this because the issue was raised at this hearing that Calderdale's assessment of Stitch's capacity in the summer of 2023, soon after the conclusion of the first round of proceedings, may have been overly influenced by its own view of her welfare – causing "the tail of welfare" to wag "the dog of capacity" (Peter Jackson J in Heart of England NHS Foundation Trust v JB [2014] EWHC 342 (COP) at [7]).
Background history
- Stitch has a diagnosis of mild intellectual disability, with a full scale IQ of 52. She has Attention Deficit Hyperactivity Disorder and a dysfunctional attachment style. She is reported to have microscopic brain disorder, associated with microcephaly at birth. She experiences difficulty in processing and assimilating information, exacerbated by a cognitive rigidity; this makes it difficult for her to consider new information which challenges her understanding, and she cannot do this as flexibly as would a person without such a disability. Ideas become fixed in her mind easily, and she finds it hard to change her mind. Stitch's dysfunctional attachment style causes her to function in a way which is 'needs led', and she often prioritises what she thinks she needs in order to obtain validation. She is prone to experience rejection when she feels that her needs and expectations have not been met.
- Stitch's early development was not seen to be significantly delayed; she attended mainstream school, though with SENCO support. She can read and write to a basic level, and was able to take GCSEs in three subjects before going on to complete a life skills courses at college. She was an only child, and although sociable in personality has always found making friends difficult; her need to be liked rendered her vulnerable to coercion.. Until recently she had a boyfriend, but that relationship has now ended; there is another potential boyfriend on the scene (see §55(b) below). She craves a personal relationship with a man, but remains single. She suffers anxiety, which is managed with low levels of sertraline medication.
- Stitch has developed good home skills in relation to food preparation and cooking; she is able to make simple meals with only verbal prompts from support staff. She is physically able to do household tasks. She currently volunteers one day per week, every other week, at a charity shop where she helps with tagging clothes; she enjoys the social interaction which this involves.
- When the first round of proceedings were issued, Stitch was living at home with her mother and her mother's partner; she was in receipt of thirty hours of one-to-one support per week. She was said at that time to have little or no sense of self, and no ability to assert her own needs. She had a complicated, dysfunctional, enmeshed relationship with her mother which often became violent. Stitch was said to display little emotional content in her contacts with others. She struggled with her sexual development, and did not always channel her sexual desires and interests in an appropriate or healthy way; she was sending and receiving sexually explicit photographs and messages to third parties whom she met on the internet. She made plans to meet with strangers with whom she had corresponded, in order to pursue a sexual relationship.
- In those earlier proceedings, I authorised the joint instruction of Dr O'Donovan. With the benefit of her advice, in 2020 I made a number of interim declarations under section 48 MCA 2005 in respect of a number of areas of decision-making.
- Early in the first round of proceedings, the professionals agreed that Stitch would benefit from practical education and structured interventions to enable her, if possible, to gain capacity in various areas of her life in order that she could make decisions for herself, in line with the core principles of the MCA 2005. Accordingly, significant efforts were made by those who supported Stitch, and by Stitch herself, to work on the issues which were relevant to capacity. Stitch engaged in various programmes and occupation activities under the supervision of an occupational therapist and psychologist, and completed a 'communications passport' exercise to help her to acquire a greater understanding of her internal world. For a period of time the relevant local Mental Health Trust was joined as a party in order to secure its engagement with the issues, and the provision of support for Stitch. This important work was unfortunately interrupted and delayed by the COVID pandemic.
- In December 2020, Stitch disclosed that she had been assaulted by her mother's partner, and she was removed from her mother's home and placed at Oak House, a supported living environment, where she has remained. She has now been there for four years and she is very happy there. At Oak House she has her own room with a shared bathroom and shared communal areas; there is currently one other female tenant in the property. She receives support from staff on a one-to-one basis, 24 hours a day, 7 days per week. Throughout the week she receives outreach support, and she uses this to attend the gym, attend yoga sessions, cooking sessions, drama, arts & crafts, and swimming; additionally, she is supported to develop a healthy eating programme.
- By April 2021, it was accepted (in light of Dr O'Donovan's assessment at the time) that Stitch had gained capacity to decide on her residence and care; she had indeed acquired independence in many areas of her life. However, due to concerns about her vulnerability and the threat of coercion from her mother, I authorised Calderdale in limited ways in the interim period to deprive Stitch of her freedom of movement and liberty, and manage her use of the internet and social media. Stitch recently reported (to Dr O'Donovan)[3] that she has always been happy with the support she has received at Oak House and wishes to continue to reside at the placement; that view plainly coincides with what is in her best interests. Most of the time, Stitch accepts that she requires support with managing her finances and many of her activities of daily living.
- Stitch's capacity to make decisions in relation to contact, and access to the internet and social media were repeatedly assessed within the first round of proceedings. As those proceedings concluded, Dr O'Donovan assessed Stitch for a final time in May 2023 in the presence of her support staff. At that time, Dr O'Donovan concluded that Stitch had acquired capacity in relation to all areas relevant to her welfare (i.e., where she resides; the care that she receives; her contact with others; her access to the internet and social media, and to enter into a tenancy agreement). It was accepted that she continued to lack capacity to litigate and to make decisions about property and financial affairs.
2023 Capacity decisions
- Thus, on 12 June 2023, I concluded the first round of proceedings and made final orders in relation to Stitch. The orders were made with the formal consent of Calderdale, the Official Solicitor on behalf of Stitch, and the Official Solicitor on behalf of MS. I delivered a short ex tempore judgment at that time, and reproduce the following extracts from it here:
"[18] Dr O'Donovan, … was invited in recent time to reinvestigate a range of questions around [Stitch]'s capacity, to make decisions about her contact with others among them. What I propose to do is simply to read into this judgment one or two of the extracts from that most recent report.
[19] In relation to contact with others, Dr O'Donovan says this, paragraph 4.1.18:
"In consideration of previous assessments completed with [Stitch], and those completed by Dr X [consultant clinical psychologist], there has been a significant change in [Stitch]'s ability to think about relationships. There is evidence that she has been able to recognise and consider the complex nuances that occur within relationships, and how these differ between different kinds of relationships. Furthermore, she has demonstrated increasing resilience within relationships, being able to tolerate challenges and setbacks that commonly occur with interpersonal dynamics."
[20] Dr O'Donovan goes on,
"It is therefore my view that [Stitch] has been able to develop a good understanding of relationships and an ability to weigh up the necessary information to make decisions about contact with others".
Additionally, she goes on,
"There is evidence that [Stitch] was able to retain information, and communicate her decision in regard to her contact with others".
She concludes,
"It is therefore my view that [Stitch] has gained capacity to make decisions about her contact with others".
[21] Dr O'Donovan was specifically asked to consider the relationship between [Stitch] and her mother. Against the background of the conclusion that I have just read out from Dr O'Donovan's report, Dr O'Donovan goes on to say this:
"Due to her ongoing need for validation in the context of her intellectual disability and dysfunctional attachment style, [Stitch] would be vulnerable to exploitation and coercion in all of her relationships. Whilst at the moment this aspect of her presentation is not relevant to her current platonic and romantic relationships, this is largely due to the characteristics of those who she has been having contact with."
[22] She goes on:
"It is however noted that [Stitch] has a much better understanding of herself and her needs in regard to her contact with others. It is therefore my view that she would be able to recognise the unhelpful nature of the relationship (with her mother) but find it difficult to terminate it. There is evidence of this in her relationship with [MS]. Therefore, in these circumstances it would be considered that this is a weighed-up but unwise decision."
[23] Dr O'Donovan went on to invite me to consider whether it would be appropriate to invoke the inherent jurisdiction in relation to this aspect of the case.
[24] That recommendation or perhaps more accurately that suggestion is not one that is advocated by any of the parties to the case now, and not one which I propose to take up, principally because I am satisfied from what I have read that [Stitch] understands well now the nature of the relationship with her mother, understands now far better the potential which her mother exercises to undermine [Stitch]'s stability at [Oak House], and recognises and values the support which she (i.e. [Stitch]) gets from the professionals who attend with her when she sees her mother.
[25] Dr O'Donovan was asked next to consider [Stitch]'s capacity to make decisions about using social media and the internet. In this respect too, Dr O'Donovan from her discussions with [Stitch], and from her analysis of recently filed materials, concluded that [Stitch] has:
"…demonstrated a good understanding of the information required now to access social media and the internet. She has demonstrated an ability to weigh up the necessary information in making the decisions. She has developed insight into the function of her previous behaviour when using the internet and social media, and has changed her behaviour in response to this."
[26] Dr O'Donovan was impressed that [Stitch] was able to demonstrate now an ability to retain and communicate the necessary information in relation to her use of social media, and in that regard Dr O'Donovan concluded that [Stitch] does have the capacity to make decisions in this regard.
[27] Dr O'Donovan was asked about [Stitch]'s vulnerability and risks of coercion in relation to her relationship with others. In that regard [Stitch] expressed to Dr O'Donovan a mature and insightful anxiety about using the internet independently; Dr O'Donovan's recommendation in this respect is effectively that the supervision which [Stitch] has had and continues to benefit from should (my words not hers) be weened off her over time, so that, for example, [Stitch] could be permitted to access the internet and social media with staff in the same room initially, so she can speak to them and discuss items that she may have viewed, or concerns she may have. A graded reduction could then progress at [Stitch]'s pace to perhaps staff being outside the room or in a different room, checking in on her periodically.
[28] That approach is one which commends itself to the parties today.
[29] With the significant advantage, albeit only lately delivered, of Dr O'Donovan's most recent views, the parties have helpfully discussed matters between themselves, and have reached an agreed position that [Stitch] now continues to lack the capacity to conduct proceedings or manage her property and affairs, but has now (to the satisfaction of the experts and to the applicant and to the Official Solicitor) demonstrated capacity to make decisions about her residence, make decisions about her own care, her contact with others, her use of the internet and social media, her engaging in sexual relations, and to enter or terminate a tenancy agreement."
- I was surprised to learn from Ms A, in her oral evidence before me at this hearing, that Calderdale had never really accepted Dr O'Donovan's expert opinion in June 2023. Ms A told me that Calderdale had only 'gone along' with the view of Dr O'Donovan because it had not felt that it was in a position to challenge her opinion with evidence from any relevant professional within the local authority's adult social services department. I was told that shortly before the final hearing 2023, Stitch's social worker had left the department, and Stitch had joined "a list of cases to be reallocated"; Ms A was of the view that no professional in Calderdale in June 2023 was available to put evidence before the Court to rebut the presumption of capacity.
Post – June 2023: Re-assessment, Restrictions and a Return to Court
- Following the making of the final order on 12 June 2023, Stitch acquired higher degrees of autonomy than she had previously enjoyed at Oak House. There is little doubt, from the evidence which I have read and heard, that Stitch found this somewhat overwhelming; her behaviour and presentation changed significantly. Unrestricted by the boundaries hitherto imposed, she spent hours and hours on her mobile phone (estimated to have been c.50-60 hours per week) and was said to have become obsessed by this activity. Within only a matter of a few days of my final order, she was observed sitting naked while face-timing unknown males on social media, putting herself at obvious risk of harm and exploitation. The first safeguarding incident occurred on 21 June 2023 (nine days following the final hearing). Her preoccupation with social media was seen to have a detrimental impact upon her health and well-being; she was neglecting her sleep, general care and personal hygiene. On occasions she was observed not to be paying attention when crossing the road. She met an Asian male online; in early August 2023, he visited Oak House unsolicited in the very early hours of one morning, in the expectation of sex, as Stitch had given him her address. On one occasion her former boyfriend was heard by staff at Oak House shouting out for help while Stitch tried to force herself physically upon him, and he did not wish to reciprocate.
- Attempts to work with Stitch on a consensual basis during the weeks which followed the final hearing proved unsuccessful in de-escalating any of the identified risks. Ms A reported that Stitch would agree or seem to agree with a planned course and then almost immediately change her response and withdraw her consent to the agreed plans. Ms A further commented that "it appears as though her actions and choices have gone right back to when the proceedings first started".
- It was in light of this deterioration in her presentation that Stitch was once again assessed in relation to her capacity. This assessment was undertaken by Ms A during approximately eight visits over a period of five weeks. Ms A recorded in her report that she had been "very open with [Stitch] that I have been continuing to gauge her level of capacity and that I am looking at what she does as well as what she says in order to do this". Ms A is an experienced social worker who has worked in a variety of different adult care teams; she is a 'best interests assessor' and Mental Capacity Act social work Team Manager; for a period she was acting social worker for Stitch. Ms A prepared a report dated 14 August 2023. I discuss the report and its shortcomings below (§78-85).
- Ms A concluded that Stitch did not have capacity in any of the areas currently under review. It was Ms A's view that over time Stitch had become adept at retaining limited information which enabled her to repeat words and phrases which had been suggested to her and/or learned by her during the first round of proceedings; this had given the assessors then the impression that she was more capable than she actually was. Ms A observed that Stitch appeared able to "talk the talk", but when it came to her own choices in daily life as the decision maker, she could not "walk the walk"; her actions and decisions appeared to be the opposite of what she had repeatedly said she wanted, and of what she had expressly agreed to. Ms A spoke of her interactions with Stitch being characterised by:
"… [Stitch]'s preoccupation with giving the "right" answers and instead of being able to discuss and explore some decisions, she will just start apologising and getting upset and asking if she is in trouble, she appears to respond very positively to all and any attention and has come across as wanting to please to the point of confabulating/ exaggerating/ making up details".
- Given Ms A's conclusions, a significantly enhanced support and protection plan was put in place, which imposed a number of restrictions around Stitch, including much reduced access to her mobile phone (i.e., restricted to 2.5 hours per day supervised). The contact between Stitch and her mother reverted to being supervised.
- A second formal capacity assessment was undertaken on behalf of Calderdale by Ms B in March 2024. The report is dated 11 April 2024. Ms B was, at the material time, a social worker and 'Best Interests Assessor' and Practice Lead for Calderdale within its 'All Age Disability Team'. This assessment, conducted over two sessions, confirmed the findings of Ms A; she found that Stitch was unable to make decisions regarding her care, regarding her contact with others, and regarding her use of the internet and social media. It appears that Ms B did not re-assess Stitch's capacity to decide on her residence. It was Ms B's opinion that Stitch struggles with her executive functioning, and found it difficult to apply information which was given to her or to apply her learned experience. She appeared to want to give answers which she thought the assessor wanted to hear; again this is likely to be the result of the many assessments to which she has been subject over the years, wanting to answer to please others to achieve her goals rather than engaging truthfully and exploring this further.
- For reasons which have not in my judgment been satisfactorily explained, Calderdale delayed issuing proceedings until May 2024, some nine months or so after Ms A's capacity assessment. I directed the filing of a witness statement to explain the delay, and was through this medium advised that legal advice had been obtained (not from counsel currently instructed) that there was no immediate need to issue, and that "staffing pressures" had impacted on decision-making. This unacceptable delay may well have materially impacted upon Stitch's rights under Article 5 and Article 8 ECHR, though I do not develop this point in this judgment in the absence of any specific argument upon it. All of this is particularly concerning given that Calderdale knew that in certain respects Stitch was clearly opposed to the restrictions which had been imposed upon her in August 2023 and beyond.
- At the first hearing of the current application (June 2024) I made an interim order under section 48 MCA 2005, authorising Calderdale to impose its existing support and protection framework around Stitch, permitting the authority also to deprive Stitch of her liberty in limited ways:
(a) Stitch can only access her phone with support and access the internet under supervision;
(b) Stitch is offered 2.5 hours access to her phone and the internet each evening;
(c) Stitch is required to surrender her phone at all other times;
(d) Stitch can only access the community with support from a support worker;
(e) Stitch's contact with MS is supported by a support worker;
(f) Stitch is not permitted to have overnight stays at MS's house (for the avoidance of doubt, such overnight stays would be permitted if Stitch could be supported by her support workers there).
These provisions have been central to Stitch's support plan since that time; they are ostensibly working well and are said to be keeping her safe.
- Ms A further assessed Stitch in December 2024 in relation to the issue of capacity to engage in sexual relations; she found Stitch to be lacking in capacity in this regard.
- In the meantime, and pursuant to leave granted by me in June 2024, Stitch was assessed again by Dr O'Donovan. It will be apparent from my earlier remarks (§17 above) that Dr O'Donovan has an unusually long history of involvement in this case, having first met and assessed Stitch during the first round of proceedings; Dr O'Donovan has assessed Stitch's capacity on at least six occasions since 2019. Accordingly, they know each other well. Dr O'Donovan saw Stitch on two occasions for this assessment, having had access to the written evidence. Dr O'Donovan prepared a written report (November 2024) and gave oral evidence before me.
- I now turn to the evidence before the court which is relevant to each of the decisions under review. Inevitably, I cannot rehearse all of the material which I have taken into account, but seek to give at least a flavour.
The evidence relating to capacity
Capacity to conduct litigation
- There has been no dispute in the current application, on the evidence, that Stitch lacks capacity to conduct this litigation. I rely for present purposes on Dr O'Donovan's opinion which was articulated as follows:
"[Stitch] was able to understand the necessary information about the proceedings and could retain the information and communicate her decision. However, due to her intellectual disability in the context of her dysfunctional attachment style, [Stitch] would not be able to follow the proceedings and thus provide instruction to her legal representative… [Stitch] is likely to become overwhelmed by the proceedings and would therefore be vulnerable to exploitation and suggestion by others who may not be able to act in her best interests… [Stitch] is unable to weigh up the necessary information in regard to the conduct of these proceedings and thus lacks capacity to make this decision.". (Emphasis by underlining added).
Capacity to make decisions about residence
- The "information relevant to the decision" (section 3(1)(a) MCA 2005) in relation to residence is widely recognised to be that which was set out by Theis J in LBX v K, L, M [2013] EWHC 3230 (Fam) ('LBX') (at [43]) (later discussed in Re B (By her Litigation Friend the Official Solicitor) v A Local Authority [2019] EWCA Civ 913: 'Re B'). It is unnecessary for me to reproduce the entire list of factors which Theis J adumbrated in LBX; the list does not have statutory force and, as with any other suggested list of "information relevant to the decision" crafted by the Court of Protection judiciary, should only ever be "… treated and applied as no more than guidance to be adapted to the facts of the particular case" (Re B at [44] and [62]). However, it is useful to draw to specific attention the 'information' which is identified at [43](viii) in LBX:
"… 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".
- On this point, Ms A opined that in relation to residence: "[Stitch] does not appear to be able to understand the implications of what living with her mum would mean to her current team of support staff and independence".
- Dr O'Donovan of course assessed this issue too and reported that Stitch had declared herself unattracted by 'independent' living, as she did not believe that she would be able to manage her money or medication; she had acknowledged that "she continued to require support with managing her finances and many of her activities of daily living". However, Stitch did not understand the meaning of 'living independently' in this discussion; she appears to have thought that it meant "moving to another property, whilst still receiving support 24 hours a day from staff". I note that Ms A also described in her report how Stitch would speak about living independently, but did not truly understand this. Dr O'Donovan considered with Stitch the only alternative to Oak House, namely a return to her mother; Stitch had separately asserted that she stated that she "did not want to return to live with her mother but found her mother's comments about this overwhelming when she had contact with her".
- Notwithstanding Stitch's erroneous understanding of 'living independently', and the lack of appreciation of the lack of 24/7 support were she to move to her mother, Dr O'Donovan was of the view that Stitch has capacity to make decisions about residence as – on her assessment – she is able to understand, weigh up and retain the necessary information about her residence and communicate her decision. However:
"…due to the nature of her intellectual disability, [Stitch] in my view is vulnerable to coercion, particularly by her mother as her ability to process and assimilate information about this relationship in regard to her decision making about residence is limited. Therefore, in the absence of support, she is likely, to adhere to her mother's expectations, despite these being inconsistent with [Stitch]'s own wishes. … Therefore, the Court may wish to consider whether the Inherent Jurisdiction would be appropriate".
Capacity to make decisions about care;
- The decision in LBX also provides a useful summary of the information which needs to be considered on the subject of 'care' (this time at [48] ibid.). Specific thought should in the circumstances of this case be given to "what areas [P] needs support with, what sort of support [she] needs, who will be providing [her] with support, what would happen if [she] did not have any support or [she] refused it…".
- In Ms A's assessment report, she described how Stitch could not truly "understand or visualise any scenario where the staff team at [Oak House] are not involved in her life even when she has requested to go on holiday with her mum without staff support… she doesn't understand the level of support that she receives, or the implications to her of not receiving that support" (my emphasis). Ms A added:
"[Stitch]'s recent choices regarding the support that she received from staff indicate that she doesn't understand the level of support that she receives, or the implications to her of not receiving that support".
- In both Ms A's and Ms B's assessments, Stitch was not able fully to understand and/or use or weigh the significant concerns which were raised by members of staff from Oak House about her behaviour in the summer of 2023, immediately following the last hearing when support was reduced/removed and restrictions lessened. When asked about the concerns which staff had raised, Stitch responded to Ms B that there would not be problems in the future, although she was not able to explain her decision-making, or why matters would be different going forward. Ms B reported:
"[Stitch] told me that she managed really well when she was making her own decisions last year and whilst she didn't dispute there were difficulties between June and August 2023 when these difficulties were pointed out, [Stitch]'s response was that she would manage well again and there wouldn't be problems in the future. I wasn't able to establish [Stitch]'s understanding of why these issues were a problem or how she would realistically address them. It is not clear if [Stitch] saw them as an issue or if she was trying to convey that things went well because she feels that she needs to say that in order to make her own decisions" (Emphasis by underlining added).
In light of this response, and others of a similar nature, Ms B concluded that Stitch was unable to understand, use and weigh the extent to which staff support her to meet her care needs, and the risks, were they not to do so.
- Dr O'Donovan described Stitch as having relatively insightful understanding of the extent of the care offered by the staff at Oak House. Stitch acknowledged in her discussion with Dr O'Donovan that she receives 24/7 support from staff at Oak House to assist her with managing her bills, medication and day-to-day spending, and to manage her cooking. Stitch acknowledged that she completes her food shopping with the assistance of staff, and needs support from staff in managing her relationship with her mother.
- Stitch told Dr O'Donovan how the staff at Oak House also monitor her mobile phone use; Stitch accepted that this was "necessary as it prevented her from using chat lines". Stitch said that she values the support which is offered to her at night, and accepted that if her phone were not monitored in this way she would be tempted to use it inappropriately.
- In light of these answers, Dr O'Donovan told me that she believed that Stitch has a good understanding of her care needs, and is able to weigh up the necessary information and retain it, while also able to communicate her decision. However, she advised that because of Stitch's intellectual disability, she is vulnerable to exploitation and coercion by others who may subvert her plans. Dr O'Donovan said that Stitch requires an elevated level of support to build her confidence to complete the tasks necessary to ensure that her needs are met. Dr O'Donovan was of the view that Stitch is vulnerable to exploitation and coercion and that the court may wish to exercise its inherent jurisdiction to protect her in this respect.
Capacity to make decisions about contact with others
- Stitch's contact with others generally, and her mother in particular, has fallen under the spotlight in this hearing.
- General: It is the opinion of Ms B (echoing in large part the view of Ms A) that:
"[Stitch]'s ability to make decisions around contact with others is that she cannot assess risks around this. [Stitch] is able to identify people who treat her well and those who don't, but if she is motivated to speak to or see someone, then she will do so, without evaluating potential risks".
- On this subject, Dr O'Donovan opined as follows:
"[Stitch] was able to understand that there were differences between the various types of relationships she experienced. However, due to [Stitch]'s intellectual disability she was not able to process and interpret information about her contacts in order to understand the nature of these relationships… Her understanding of her contacts was further impaired by her cognitive rigidity, which is again a feature of her mental disorder… [Stitch]'s inability to process and interpret information about her contact with others also impacts on her ability to weigh up the necessary information about her contact with others. [Stitch] was not able to use the information from her interactions with others and consider this in the context of her expectations and wishes of others". (Emphasis by underlining added).
- Dr O'Donovan added:
"Although [Stitch] is able to retain the necessary information and is able to communicate her decision, due to the features of intellectual disability, [Stitch] is unable to understand and weigh up the necessary information about contact with others and thus lacks capacity to make this decision … As the dynamic in her relationship with her ex-boyfriend changed and she felt rejected within the relationship, she once again reverted to seeking acceptance and validation from others. This therefore indicates in my view that [Stitch]'s capacity to make decisions about contact is fluctuating". (Emphasis by underlining added).
- Contact with MS: In City of York at [35] at McFarlane LJ made clear that capacity to decide on contact could be person-specific:
"Some other decisions, for example whether P should have contact with a particular individual, may be person specific. But all decisions, whatever their nature, fall to be evaluated within the straightforward and clear structure of MCA 2005, ss 1 to 3 which requires the court to have regard to 'a matter' requiring 'a decision'." (Emphasis by underlining added).
- Contact between Stitch and MS has for some time been, and is, governed by a basic 'contract of expectations', the latest version of which (including in easy-read format) was signed on 24 December 2024. All contact is now supervised; there is some flexibility in the arrangements and final choices over the exact location and times and whether the contacts go ahead are determined by Stitch herself. Staff remain with Stitch throughout all of the meetings. Some overnight contact is contemplated at MS's home, but MS is resistant to any carers sleeping overnight in her home.
- For a period of time after June 2023 Stitch had unsupervised contact with her mother. This was not always successful, and MS often said things which upset Stitch. Even now, Stitch and her mother periodically upset each other which leaves Stitch feeling distressed.
- Ms A and Ms B expressed the view that Stitch does not have the capacity to use or weigh information relevant to her contact with her mother:
"[Stitch] was able to acknowledge that she and her Mum used to have arguments and would shout at times but said that they get along now so there would be no arguments. I asked what was different now, [Stitch] said that they get along now … she appeared to have an idealistic view that they would not have arguments in the future and her plan of taking herself away does not seem like a robust plan as this has not been successful previously. It was also difficult to establish if [Stitch] understood that her relationship with her Mum had improved because of staff support." (Ms B) (Emphasis by underlining added).
- Stitch told Dr O'Donovan that she felt conflicted by her relationship with her mother as she wanted to maintain her relationship with her, but at the same time she felt that her mother turned every conversation back to herself and was not interested in the matters which were important to Stitch. Stitch further explained that the relationship had become difficult since the death of her stepfather and that MS had prioritised her own wishes above Stitch's wishes; Stitch told Dr O'Donovan that "she [MS] doesn't care about me." Stitch further told Dr O'Donovan that "in the absence of staff support during her contact with her mother, she believed that she would struggle to tolerate her anger to the extent that she could become aggressive". This account of the conversation between Stitch and Dr O'Donovan suggested to me that at least at times Stitch has a reasonable degree of understanding of her relationship with her mother and is able to use and weigh the information which inform decisions about their contact.
- Contact: other specific relationships: As to other relationships:
(a) Stitch's father: Stitch has spoken of wishing to try to find her biological father, in order to be able to tell him what has happened in her life, and to find out about him; she has not been able to contemplate the possibility, indeed the likelihood, that he may not wish to have a relationship with her, and/or his likely reaction to meeting her again so many years after he abandoned her;
(b) Stitch's 'boyfriend': Stitch told Ms B that "… things went really well when she saw [her former boyfriend] without support" in August 2023, failing to recognise that the said boyfriend had had to call for assistance when Stitch imposed herself on him. Since the end of that relationship, Stitch has started (or believes that she has started) a new relationship, with a young person who she knows from the social groups with which she mixes. She described to Dr O'Donovan a recent encounter with this young man:
"She reported that whilst out in town she had seen him at the bus stop and recognised him. [Stitch] said that she had approached him and began a conversation noting that she had not seen him for a while. On reflection of the conversation, she said "Do you want a girlfriend? And he said who are you? I said I know you from [the relevant social group] and he recognised me..."
This encounter was said to have lasted for no more than five minutes, but Stitch believes that they are now in a relationship and believes that, if asked, this young man would agree.
Capacity to make decisions in relation to internet and social media use
- Ms A discussed internet use with Stitch on a number of occasions. She described how since the first round of proceedings had concluded, and when unconstrained by boundaries imposed by the Oak House staff, Stitch had reverted to sending graphic intimate photographs of herself (naked) to unknown males met on line, and messages of a like nature. She added:
"[Stitch] has no insight in to the risk of this [i.e., sending graphic intimate images of herself to others] and is unable to understand that these can be sent on. [Stitch] is also at risk of trying to meet people off line. She has stated that she wants to have sex and that she will search for people to have sex with no insight in to risk".
- Specifically in relation to the 'relevant information', Ms A discussed with Stitch the fact that (a) information and images which are shared on the internet could be shared more widely, with people she did not know, without her knowing or being able to stop it, and that (b) people who she communicated with online may not be who they say they are. Ms A described Stitch's responses to these relevant pieces of information as follows:
"[Stitch] has used mostly the same phrases that she has when previously having her mental capacity assessed, and despite numerous attempts to discuss and review things with [Stitch] over the past few weeks – [Stitch]'s inability to articulate more widely around these topics, combined with [Stitch]'s actions do appear to indicate her lack of understanding of these two key pieces of relevant information." (Emphasis by underlining added).
- Stitch told Dr O'Donovan that she had been using the internet to meet men, expressly because she wants to have sexual intercourse; she has a new boyfriend (see above), but he does not want to have sex, and she "wanted him to be jealous". Stitch admits that she sent sexually explicit images of herself and received sexually explicit images from others. She reported that she also found the experience sexually hyper-arousing. Due to the intensity of her feelings to engage in sexual activity, on at least one occasion (to which I have already referred) Stitch posted her address on line and subsequently one of the males she had been messaging arrived unannounced at Oak House.
- Stitch accepted, in discussion with Dr O'Donovan, that she did not think about the consequences of her actions, nor the risks posed to herself and others by her conduct. Dr O'Donovan continued:
"[Stitch] explained that when using the internet to send explicit images of herself or to seek sexual activity, she did not consider where information would go or that it could not be permanently removed from the internet. Although, she knew that information could be shared and could not be permanently deleted".
- Dr O'Donovan added:
"… as [Stitch]'s expectations and needs for sexual gratification are not met and her intellectual disability results in her cognitive rigidity, resulting in her being pre-occupied by this experience, [Stitch] is unable to weigh up the necessary about social media and the internet and thus lacks capacity to make this decision".
- In her report Dr O'Donovan suggested that in this regard, Stitch's capacity was fluctuating. The evidence does indeed reveal that following the first round of proceedings, when Stitch experienced rejection (and/or fears of rejection) from a boyfriend, and when her needs and expectations with regard to this relationship were not met, her mental state destabilised to such a degree that she was unable to see the risks of her own behaviour.
- When Miss Hurst met with Stitch in mid-December, she asked Stitch why people were worried about her using social media and the internet; Stitch said that she was "not sure".
- By the conclusion of the hearing, on consideration of the evidence taken as a whole, all counsel before me agreed that Stitch did not have capacity in this regard; it was agreed between Calderdale and the representatives of Stitch that her cognitive rigidity, arising from her intellectual disability, results in her becoming pre-occupied with the need for sexual gratification and she does not have the capacity to weigh up the risks of using social media and the internet.
Capacity to engage in sexual relations
- Stitch's capacity to engage in sexual relations has to be viewed in the light of the judgment of the Supreme Court in Re JB and in particular with regard to Lord Stephens' judgment at [121]. That is to say that information
"… relevant to that decision includes the fact that the other person must have the ability to consent to the sexual activity and must in fact consent before and throughout the sexual activity".
In order to be capacitous Stitch must be able to understand that information and she should be able to use or to weigh it as part of the decision-making process.
- By the conclusion of the hearing, and on the evidence adduced, there was no dispute between the parties that Stitch does not have capacity to engage in sexual relations.
- On the one hand, Stitch has been able to describe the most basic mechanics of vaginal intercourse, and is able to describe how vaginal intercourse may lead to pregnancy and/or may also lead to HIV (although she could not name any other sexually transmitted infection). She had a reasonable understanding of contraception. However when Dr O'Donovan broached the subject of 'consent' to sex in her assessment, Stitch showed no real understanding of this, believing that the term 'sexuality' referred to non-consensual sex. Dr O'Donovan continued:
"Several attempts were made to discuss her views about the need for those agreeing to have sex being capable of making this decision. However, [Stitch] found it difficult to consider that both people need to be able to agree to have sex … [Stitch] was asked how she would respond if a partner refused to wear a condom and would refuse to have sex if [Stitch] insisted on the use of a condom. [Stitch] said that she would agree to have sex without a condom as having sex would be the priority. … due to the nature of her intellectual disability, [Stitch] is unable to accurately process and interpret information about the ability of others to consent to sexual activity and is thus unable to understand this aspect of the information required to make this decision…. Through [Stitch]'s fear of rejection and pre-occupation with sexual gratification (which she is likely to believe will make her feel accepted), which is a consequence of her dysfunctional attachment style and exacerbated by her intellectual disability, [Stitch] is unable to prioritise her physical and psychological needs above the wishes of others. It is therefore my view that [Stitch] is unable to weigh up the necessary information about sexual relations". (Emphasis by underlining added).
- Ms A's assessment in fact followed Dr O'Donovan's assessment in time. She reported:
"[Stitch] does not appear to have an understanding of the need for the other person to give and maintain consent to sexual relations. It was clear from her answers and comments with regard to the mechanics of sex and its' likely consequences that these are things that she is familiar with and has an understanding of – albeit that her understanding of STI's appears to be focussed on HIV and AIDS. The need and importance of consent from the other person came across as a concept that [Stitch] was not aware or understanding of at present… Although [Stitch] can articulate an understanding of the need for her to consent to having sex, in reality I don't think that she can weigh or appreciate how to do this or think about this, that her desire not to say no, or excitement about having sex will overtake everything else – whether she would even consider whether she wanted to have sex or not once a prospective sexual partner is involved. Similarly, I feel that [Stitch] is lacking an understanding of the need for consent from the other party, and that her desire and excitement to have sex will overtake everything else" (Emphasis by underlining added).
Stitch's views
- Stitch is happy living at Oak House and emphatically confirmed this when she met with her solicitor, Miss Hurst, in mid-December 2024. She enjoys having support from her carers, enjoys the activities which she does during the week, likes to go out with carers and does not want to go out on her own but would prefer to have access to her phone all of the time. Stitch says that she likes making her own decisions and wants to live as normal a life as possible.
The position of the parties
- Calderdale: Reliant on the assessments of Ms A and Ms B, Calderdale submits that Stitch lacks capacity to make decisions in respect of all of the matters under review, and that I should make declarations accordingly. Mr Patel KC and Ms Gardner argue that while the current arrangements have enabled Stitch to engage in some structured and focused decision-making, this should not be confused with her having acquired capacity to make decisions in those respects "for herself". They argue that it is too much of a leap to suggest that the protective framework has the effect of enabling Stitch to acquire capacity.
- It is argued that Stitch has been consistently unable to understand the extent of her care needs and the extent of the care and support that she receives on a daily basis. While Stitch responds positively to the care arrangements that are in place, and does not resist the restrictions, her lack of objection/resistance ought not to be confused with an ability to use and weigh whether in fact those care arrangements are required to keep her safe. I was reminded in this regard of the evidence of Ms B to the effect that Stitch had reported that she had managed "really well" without staff support (when objectively viewed she plainly had not), and that there would not be any problems in the future (see §42 above). They argued that issues of care and residence should be considered together, and that Stitch lacks capacity to make decisions in both areas.
- Calderdale further argues that at present, all decisions in relation to contact are made in Stitch's best interests, and are implemented by her support staff. The decisions are being made for Stitch, and to a large degree Stitch agrees with those decisions. However, agreement to the restrictions and her acknowledgment of the restrictions, must not be interpreted as evidence that Stitch understands the restrictions and/or the need for them or that she can, at the material time, use and weigh the information to make her own decision.
- It is further argued that Stitch continues to be unable to use and weigh the relevant information relating to contact with her mother. The suggestion that Stitch is making the decision to allow staff to support contact and is able to determine her arrangements for her contact with her mother, is not accepted. Stitch's inability to use and weigh the information relating to the complex and nuanced decision about her contact with her mother has been a feature of this case for a significant period of time.
- Mr Patel and Ms Gardner agree with Ms Roper KC that Stitch lacks capacity in relation to the conduct of these proceedings, internet and social media use, and Stitch's engagement in sexual relations. They further submit that the existing care arrangements should continue, including authorisations for the deprivation of her liberty.
- OS on behalf of Stitch: On behalf of Stitch, Ms Roper argues that the evidence shows that her client lacks capacity in relation to (i) conducting the proceedings, (ii) access to the internet and social media; (iii) engage in sexual relations (but may gain capacity with education and support); (iv) contact with others (generally, although not her mother – see below). It is further argued that Stitch has capacity to make decisions about where she lives ('residence') and the support she receives ('care'), and her contact with her mother but only provided that she has the supportive framework of a compulsory support plan and the support of her carers (see discussion of this approach at §94 below), and in the case of contact with her mother that such contact is supervised.
- Mr Roper further argues that in relation to residence and care, where that supportive framework is absent, her capacity will fluctuate. In those circumstances, the Official Solicitor's submission is that I should then take a 'longitudinal view' of Stitch's capacity (see §103-105 below) and declare that Stitch will be unable to make those decisions. I have been reminded of the caveats which need to be applied to adopting a longitudinal view so that it does not undermine the autonomy of the individual. A carefully-constructed bespoke care plan, with Stitch's input, would need to be prepared so as to maximise the chances of capacitous decision-making, and/or to give specific effect to Stitch's wishes. There is a risk, which I recognise, that a longitudinal approach to determining capacity can have the effect of disproportionately favouring the protection imperative, and might be unduly paternalistic and discriminatory.
- OS on behalf of MS. Mr O'Brien KC on behalf of MS is essentially neutral on all capacity issues save for contact. He argues that the evidence shows Stitch to be capacitous in relation to contact with her mother.
Discussion (1): Context, Caveats and Capacity
- This has proved to be a difficult application to resolve for a number of reasons:
(a) First, Ms A's assessment in August 2023 which was to the effect that Stitch lacked capacity in many areas of her life followed within only a matter of a few weeks of a final consent order which had been made at the end of protracted proceedings, which had concluded with all of the professionals expressing themselves to be satisfied, and I too of course confirmed, that Stitch had capacity in those self-same areas of her life;
(b) Secondly, Ms A's capacity assessment in August 2023 was unorthodox, and to a degree was lacking in the rigour which is customary (and indeed necessary) in the Court of Protection; given the manner in which the assessment was undertaken (over a period of eight sessions, with no or no explicit statement to Stitch that her capacity was being assessed) it is possible that Stitch was not fully aware that her capacity was being assessed, and this may have skewed the results; furthermore, by the time of the hearing, the report was 18 months out of date;
(c) Thirdly, Dr O'Donovan's final report filed in these proceedings uncharacteristically lacked the forensic acuity which was called for in this case, particularly at this stage, and against this background; in performing her analysis and making her recommendations there was, disappointingly, little or no attempt to triangulate the wide range of available evidence about Stitch, including (specifically but not exclusively) the evidence gathered in the assessments conducted by Ms A and Ms B;
(d) Fourthly, Stitch's capacity has been assessed numerous times over the last few years, and it appears that she has now developed an ability to recall and deploy phrases and vocabulary which – when used in the right context – can mislead the assessor into believing that she has greater understanding, or ability of reasoning, than is in fact the case.
I discuss these four points a little further, in turn.
- (i) Calderdale's change of view: First, it is important to recognise, as part of the context of this application, that in 2023 an informed view was reached supposedly by all of the professionals (although not perhaps entirely by Calderdale), that, notwithstanding her intellectual disability, cognitive rigidity and dysfunctional attachment style, Stitch had capacity to make a wide range of welfare decisions. It is of course perfectly possible (and in hindsight it seems to me likely) that the 'informed view' was in fact in part over-optimistic or even plain wrong, having been uninformed by any reliable prognostic indicator.
- Although Calderdale began to revise its opinion about Stitch's capacity within only eight days of the final hearing, for the reasons outlined by Ms A (see §78-81 above) it now seems likely that the professionals on the ground working with Stitch had harboured deeper misgivings about the conclusions drawn in the first round of proceedings than they felt able to say at the time of the final order, given their personal lack of experience of Stitch. It is regrettable that those misgivings were not articulated to the court.
- I am satisfied on the evidence that the protection and support structure which had been built around Stitch in the period up to the June 2023 hearing (and in some respects since August 2023) had enabled her to function and present as more capacitous than she actually was, and this may have contributed to the false positive of capacity.
- In seeking to understand Stitch's shift of presentation, I also accept in part Dr O'Donovan's suggestion that after the hearing in June 2023, Stitch felt unexpectedly "uncontained" (Dr O'Donovan's word, which I accept), and she found the burden of decision-making "overwhelming" (again Dr O'Donovan's word) and this had an impact on her presentation and on her ability to make decisions which had the characteristics of capacity. Moreover, her capacity was simultaneously adversely impacted by the rejection which she felt in her relationship with her ex-boyfriend; he was unable to fulfil her expectations of the relationship. Although not asked to undertake any retrospective assessment, it was Dr O'Donovan's evidence that Stitch lost capacity to make some of the decisions at issue, at least for some of the time.
- (ii) Calderdale's assessment: I am satisfied that:
(a) Ms A told Stitch in general terms that she was concerned about her capacity and was looking at this; Ms A told me that she was "honest with [Stitch] … that I may be drawing conclusions regarding her capacity, based on not just what [Stitch] was communicating, but also based on her actions",
and that:
(b) On at least one occasion Ms A presented "a set of pre-prepared questions to structure some of [the] conversation".
However, I find that Ms A failed to spell out clearly the purpose of the questions for Stitch during the eight or so visits in the summer of 2023, and did not specifically advise Stitch that her capacity in several areas was being assessed.
- I wish to emphasise that this does not fatally undermine the integrity of Ms A's assessment altogether which contains some useful insights, but I am bound to treat the evidence which emerged from these discussions with more caution than if this had been a more formal capacity assessment; in particular I have looked for evidence that Ms A was indeed assessing Stitch in a manner which was faithful to the statutory metrics, and that Stitch was appropriately engaged in this exercise.
- In challenging this assessment, Ms Roper took me to the comments of Hayden J in London Borough of Wandsworth v M and others [2017] EWHC 2435 (Fam) at [47] and [49] in which he used the terms "fundamental" and "pre-requisite" to describe the need to inform P of the purpose of a capacity assessment. Plainly each case must turn on its own facts. Indeed I note that Hayden J moderated his comments a little in the later judgment in DP v London Borough of Hillingdon [2020] EWCOP 45 at [60] in which he made these points:
" I did not intend that the absence of an explanation to P of the purpose of the assessment or even the failure adequately to engage P's involvement in the assessment would automatically and, in every case, result in the assessment failing to meet the evidential test set by Section 48 [which sets out the three grounds on which an interim order can be made]".
And in the same case (DP) at [61]:
"I remain convinced that the failure to inform P as to what an assessment is actually addressing will probably be "fatal to" or, at least, "gravely undermine" the reliability of any conclusion. This is not the same as saying that the criteria in Section 48 will not be met. The judge will have to look at the wider canvas of the available evidence and consider those aspects of the report which might survive its failings." (Emphasis by underlining added).
- In my judgment, the assessment lacked the sort of rigour to which the Court of Protection is accustomed; tranches of text setting out the views on one part of the assessment have been cut and pasted into another, and this strongly suggests that the author has not applied individual focus to the specific capacity questions. Fortunately, Ms A's assessment was buttressed (in most respects) some months later by a separate assessment undertaken by Ms B; although not a detailed report, this did not suffer from the same defects, and yet she independently reached similar conclusions. It is also notable that, notwithstanding the methods by which these assessments were undertaken on behalf of Calderdale, Dr O'Donovan actually agrees with many of Ms A's and Ms B's conclusions.
- (iii) Dr O'Donovan's assessment: Given that Dr O'Donovan's opinion had in some albeit not all respects shifted by 180° since June 2023, I would have expected to find greater discussion in the analysis section of her recent report of the wider canvas of current available evidence; for instance, it would have been useful had she looked to triangulate her current views with the assessments of Ms A and Ms B (notwithstanding the defects of the former: see §82-85 above). Her failure to give her assessment this rounded perspective has led to a somewhat one-dimensional report.
- Specifically, although Dr O'Donovan records that she has read the 'updated Court of Protection bundle', and although she describes parts of a conversation with Oak House support staff amongst her sources, I found no explicit reference and barely any implied reference to any of the wider canvas of evidence in the analysis section of Dr O'Donovan's report. If she has relied on the wider evidence filed in this application, it is not clear to me in what ways. In this respect, I echo and endorse what Gwynneth Knowles J observed in Re DY [2024] EWCOP 4 at [47]:
"…it would be beneficial if expert capacity assessors ensured that, as a matter of routine, they cross-checked their conclusions by looking at the wider canvas about how a person functioned and, if possible, by speaking to those who knew the person being assessed well. This is of particular importance when their conclusions may be at variance with previous capacity assessments".
Thus, while I recognise that Dr O'Donovan has specifically been asked to assess Stitch (and indeed the recommendations and opinions of Dr O'Donovan appear to be founded largely, if not exclusively, on her two video-facilitated meetings with Stitch in the autumn of 2024), and while of course her own discussions with Stitch would be central to that assessment, I would have hoped that in her overall review, she would have engaged in a more three-dimensional evaluation.
- In two respects, in relation to residence and care, Dr O'Donovan recommended that the court may wish to consider invoking the inherent jurisdiction to protect Stitch from coercion from her mother. She made a similar suggestion in the first round of proceedings (see §22 above, specifically at [23]/[24] in the extract from the previous judgment). Calderdale has argued, with some justification, that some of what was proposed by way of care plan and contact restrictions may amount to a deprivation of Stitch's liberty. Calderdale does not accept that it would be an appropriate, or even permissible, use of the inherent jurisdiction to regulate this relationship in this way in the long term: see (among other authorities) my decision in Redcar & Cleveland BC v PR [2019] EWHC 2305 (Fam). I have no doubt that Dr O'Donovan's suggestion that the Court could use its powers under the inherent jurisdiction was made with Stitch's best interests uppermost in mind, but I am concerned that in her assessment she may have allowed herself to become distracted by the contemplation of a potential legal outcome which was not on the table (i.e., there is no application for the exercise of the court's inherent jurisdiction), was not referred to in her letter of instruction, and may not – as a matter of law – be available.
- (iv) Repeated capacity assessments: Finally in this regard, I find that over the many years in which these Court of Protection proceedings have been ongoing, and in which a significant number of assessments have been undertaken, Stitch has become adept at holding conversations with professionals about her capacity. Ironically, it may be that Ms A's assessment has more reliable content than might otherwise have been the case had Stitch truly known that her decision-making capacity was being formally investigated. So, for instance, Ms A reported that on one occasion Stitch was:
"… not as coherent or talking in full sentences at this point – but using hand gestures and facial expressions - this made her response feel quite genuinely felt and not a learned phrase or stock response … [indicating] the struggle that [Stitch] is having with making choices and decisions for herself".
- In other contexts, the staff at Oak House have reported that Stitch has become adept at "saying the right things"; Ms A speaks of Stitch 'talking the talk'. Stitch has developed a range of reasonable expressive language, and has learned certain terms to use, such as 'vulnerability', 'risk', 'safety', which can lead the assessor to believe that her level of understanding is greater than it is. I was most interested to note Ms B's view that "when conversations delve deeper, [Stitch] is not able to explain what she means when she says she is vulnerable or why certain actions are a risk to her".
- These comments (and others of a like kind in the evidence) make it probable that Stitch has developed an ability to retain and deploy phrases and vocabulary which – when used in the right context – can (and do) mislead the listener into believing that she has greater understanding, or ability of reasoning, than is in fact the case. Her statements have to be plumbed more carefully than may otherwise be the case; hence the importance of triangulation.
- So, although (as I have outlined in §§77-88 above) there are deficits in the capacity assessments which are before the court at this hearing, I do not believe that I would learn more (indeed I fear it may be counter-productive in the longer term) if I were to commission a yet further opinion on Stitch's capacity at this stage. I am ultimately constrained to reach conclusions on these complex questions of capacity based on a less than satisfactory collection of assessments.
Discussion (2): Containment, Contingent orders, and Capacity
- History relates that when Calderdale's restrictive support framework was in place around Stitch up to the final hearing in June 2023 – Dr O'Donovan described it as 'containment' and 'psychological containment' – Stitch demonstrated that she could make decisions which at the time appeared to indicate capacitous thinking. When the structure or 'containment' was removed, her decision-making fairly obviously went off the rails, and her 'capacity' (as assessed at the time) to make decisions appeared to recede or altogether disappear.
- In view of this history, Ms Roper argues that, taking the evidence as a whole, it would be appropriate now for the court to make 'contingent orders' that Stitch has capacity to make decisions about residence and care but only "provided that" a support plan (a plan of 'containment') is "compulsorily" (Ms Roper's word[4]) at all times in place. In relation to the decision as to contact between Stitch and her mother, Mr Roper further argues that the court could be satisfied that Stitch has capacity "provided she has the supportive framework of a compulsory support plan and the support and presence of her carers; but that when that supportive framework is absent, [Stitch] is likely to lose such capacity" (emphasis by underlining added).
- I recognise that underlying Ms Roper's proposal, to which Mr O'Brien aligned himself in part, could be said to be one of the core principles of the MCA 2005, namely that those who lack capacity should be supported to make decisions for themselves in order to achieve self-determination and independence. However, decision-making which could be 'capacitous' only if the decision is made in the environment in which P is 'contained' by a continuous and (materially) 'compulsory' framework of protections, supports and restrictions, in my judgment lacks the quality of autonomy or self-determination which are important characteristics of capacitous decision-making, where the decisions are made "for [oneself]" (section 2(1) MCA 2005 and §9(d) above). Ms Roper's proposal, if adopted, would be likely to lead to the conclusion that Stitch would 'lose' capacity whenever she is permitted to make her own unsupported decisions, and to have capacity only when she is compulsorily contained or supported. That does not suggest that she has capacity or even that her capacity fluctuates; rather, it suggests that she is unable to make her own decisions.
- Looking at it another way, it would be stretching the statutory language too far to conclude that the continuous, compulsory, protective, supportive and restrictive framework created by Calderdale can be seen as an extension of section 1(3) MCA 2005 – i.e., a form of contextual practical 'help' which has been put in place to enable Stitch to make a capacitous decision. I do not accept that the compulsory imposition of a support plan which contains protective and restrictive measures can properly be regarded as comprising the practical steps which have been taken by Calderdale and which I am obliged to consider before I could conclude that Stitch should be treated as unable to make a decision (section 1(3) MCA 2005).
- I am therefore unpersuaded that the MCA 2005 permits of the construction urged on me by Ms Roper and Mr O'Brien. That said, looking forward, I view the protective and supportive care package as crucial in offering Stitch a high degree of stability and security within which she can feel more able to express her wishes and feelings freely and fully. For this reason, it is important that her support plan emphasises that those supporting her take into account and respect her expressed wishes at times when she is calm and is able to express her preferences. I return to address this in my order.
Discussion (3): Capacity Conclusions
- There has never been any suggestion in these proceedings or in the first round of proceedings that Stitch had capacity to conduct litigation (see §35 above). So I turn to deal specifically with the issues which have occupied our collective attention in this hearing. In doing so, my starting point of course is the 'assumption' that Stitch has capacity, and a recognition of her right to dignity and self-determination.
Specifics (1): Residence and Care
- The first question which I must consider is whether I should consider Stitch's capacity to decide on residence and care together or separately. Generally, questions of residence and care are taken separately; however, in my judgment, and on the particular facts of this case, it would be artificial if I did not take them together. The issues are substantially interwoven; it is clear from her discussion with those who have assessed her (see §36-45 above) that unless the options for her residence are limited to options which can also meet her care and support needs Stitch is unable to make a decision. I am satisfied that, at times at least, Stitch seriously overestimates her own ability to keep herself safe and to control her life, and she seriously underestimates the consequences for her welfare and independence. In this regard, I have reviewed again Sir Mark Hedley's comments in Liverpool CC v CMW [2021] EWCOP 50 (at [15]). In this case, Stitch has been unable consistently to explain the extent of the care that she is provided with, or the reasonably foreseeable consequences (section 3(4) MCA 2005), of not living at Oak House with that support. Stitch has spoken blithely (to Ms B) of living successfully without support in the summer of 2023 ("she managed really well when she was making her own decisions last year"), and, buoyed by that assessment, forecasts her ability to do so in the future ("she would manage well again and there wouldn't be problems") (see §42 above). At other times, she has been unable to envisage a scenario where the staff from Oak House are not involved in her life. I was struck by Ms A's comment that:
"… I have not been able to get a sense that [Stitch] can visualise a future or option that does not include her current group or support staff – she talks about some of the carers that have worked with her since she was small as being her best friends and speaks of them like family…"
- In assessing capacity in this regard, as in others, what matters is Stitch's ability to carry out the processes involved in making the decision; history convincingly reveals, in my judgment, that she cannot do this without the infrastructure around her of the court order, and the constant support of, and boundaries set by, the staff at Oak House. In my judgment, she is not able to exercise the necessary level of executive functioning to achieve this decision-making autonomously. She derives crucial psychological containment and security from the infrastructure of the support plan; when that has gone in the past, it has exposed her inability to deploy the functions required to make a capacitous decision.
- This leads me to consider whether Stitch's capacity in relation to residence and care is fluctuating. The question of fluctuating capacity has been advanced for discussion in this case for the first time, in part (I believe), (a) because Stitch was assessed (and found) to have had capacity in multiple areas relevant to her welfare in June 2023, but in a number of respects it is agreed that she 'lost' it reasonably soon thereafter, and (b) because at times even during the currency of these proceedings she appears to demonstrate capacitous decision making and at other times not.
- From time to time, cases come before the Court of Protection in which it is said that P's capacity fluctuates. This is not a typical 'fluctuating' capacity case: Stitch is not someone who has 'meltdowns', or periodic psychotic episodes which impact on her capacity. Within the limitations of her intellect, she displays cognitive rigidity, and periodically she needs to be supported in her decision making when she is feeling personally/emotionally rejected, or her needs are not met and she has difficulty in processing information about others; when using the internet, her motivation to seek a physical relationship is so strong that she is unable to consider other factors when she makes her decisions.
- I have considered a number of authorities in this regard. The most pertinent in my judgment is Cheshire West and Chester Council v PWK [2019] EWCOP 57 ('PWK'). It is unnecessary to recount the facts, save to note the similarity between PWK and Stitch in that they can and do "function remarkably well within the constraints of [their] care package" ([25]); in PWK's case, he could easily become overcome by anxiety, and it was the unpredictability of that anxiety and the seriousness and breadth of its impact which was decisive in overturning the legal presumption of capacity. In Stitch's case, she easily becomes overwhelmed by the compulsion to have her needs met.
- Sir Mark Hedley described the situation thus: (at [9]/[10]))
"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 arose as to how the legal position on capacity should be addressed in these circumstances.".
- In PWK, Sir Mark Hedley referenced and relied on his earlier decision of A,B & C v X, Y & Z [2012] EWHC 2400 (COP); he distinguished isolated decision-making with decision-making (sometimes at short notice) within the overall context of managing one's own affairs: "the management of affairs relates to a continuous state of affairs whose demands may be unpredictable and may occasionally be urgent". He added: "It is the unpredictability of that anxiety and the seriousness and breadth of its impact which is decisive in this case in overturning the legal presumption of capacity" ([25]). Sir Mark Hedley commented that:
"[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) ….
[21]… where a longitudinal perspective was adopted then PWK lacked capacity in all relevant areas."
- The protection offered by section 4(3) MCA 2005 (to which Sir Mark Hedley refers in the passage above) requires the person making the best interests determination to consider "whether it is likely that [P] will at some time have capacity in relation to the matter in question" and if so when; by section 4(6) MCA 2005 (also referenced by Sir Mark Hedley), the person making the best interests determination must consider (so far as is ascertainable) "[P]'s past and present wishes and feelings … (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". I return to these provisions later.
- I took a different approach, plainly on different facts, in Wakefield MDC and Wakefield CCG v DN and MN [2019] EWHC 2306 (Fam) ('DN'), in which I made 'anticipatory declarations' in respect of P who (I found) had capacity except at times when he had periodic 'meltdowns'. Whether this proved easy to operate on the ground as a matter of practicality is outside my knowledge.
- In A Local Authority v PG & Ors [2023] EWCOP 9, Lieven J, having tactfully indicated that she did not consider that my approach or Sir Mark Hedley's approach "is the correct or indeed better approach" on the facts of her case preferred the "longitudinal approach" adopted by Sir Mark Hedley adding:
"How an individual P's capacity is analysed will turn on their presentation, and how the loss of capacity arises and manifests itself".
- In this case, Calderdale does not accept that Stitch' capacity fluctuates; Mr Patel and Ms Gardner argue that Stitch lacks capacity in all relevant decision-making, and does not 'lose' it just when she is permitted to make her own decisions. Their secondary position is that the longitudinal approach of Sir Mark Hedley in PWK should be adopted in this case rather than the DN approach.
- Dr O'Donovan suggested specifically that given the chronic and unpredictable nature of Stitch's presentation, where the court concludes that Stitch's capacity fluctuates it may be appropriate to determine capacity on a longitudinal basis. By contrast, Ms Roper has argued that this case is closer to the DN scenario than the PWK scenario and that I should therefore consider making anticipatory declarations as to Stitch's capacity and best interests under section 15 and 16 of the MCA 2005, to cover those occasions when she demonstrates to her carers that she is unable to make a capacitous decision as to her care.
- I have reached the conclusion on the evidence which I discussed above (§§36-45) that, recognising all of the caveats described above, in the area of residence and care there are times when Stitch appears to articulate a level of understanding and reasoning which suggests that she does have capacity; indeed, this was a finding which I made about this and many aspects of her decision-making in 2023. However, at other times, she shows such a clear and marked lack of understanding or reasoning about her residence and care needs that she could not be viewed under any circumstances as having capacity. In this regard, and on all of the evidence laid before me, I feel driven to the view that she does not have capacity to make decisions about her residence and care, but her lack of capacity does to a degree fluctuate to a point where she has been, and from time to time, when settled, appears capacitous.
- Looking forward, as Lord Stephens exhorts the Court of Protection to do (see §11 above), this is a case in which I should consider a future continuous state of affairs where the demands on Stitch are as 'unpredictable' (see §105 above) as they have been in the past, and where her dysfunctional attachment style causes her to function (again as it has in the past) in a way which is overpoweringly "needs led". I am satisfied that in the future she will continue to prioritise what she thinks she needs to achieve validation. In these circumstances, she is likely in my judgment to become easily overwhelmed and/or driven by her needs. This case is, in my judgment, more like PWK than DN; that it would impose an all-too onerous burden on the staff at Oak House if I were to require them to operate under a programme of anticipatory declarations. It is thus appropriate that I should take a longitudinal perspective on her capacity in these regards, and to declare (albeit with reservations) that she is incapacitous in these areas.
Specifics (2): Decisions on contact
- Dr O'Donovan was of the view that Stitch is generally unable to understand or contemplate the type of relationship that another person may wish to have with her, and as a result of her intellectual disability, she is not able to process and interpret information about her contacts in order to understand the nature of relationships (see §§48/49 above). Due to the features of her intellectual disability, Stitch is unable to understand and weigh up the necessary information about contact with others and therefore, lacks capacity to make the decision. It was Dr O'Donovan's view that Stitch's capacity in this area of her decision-making fluctuated, adding: "[t]his fluctuation however is not dependent on the individuals she has contact with but the nature and quality of the contacts she has in the context of [Stitch]'s expectations of these relationships". Ms A and Ms B offered a less nuanced conclusion, namely that Stitch lacked capacity in relation to her contact with others.
- In my judgment, Stitch continues to be unable to understand, use and weigh the information relating to the risks that others generally may pose, and that this is a continuous and enduring feature of her presentation, irrespective of the care arrangements that are in place. Although she responds well to structured and supportive care arrangements, I am satisfied, as Calderdale has urged on me, that this does not enable her to make capacitous decisions in relation to contact with others generally. Nor do I consider that her capacity in this respect fluctuates. Dr O'Donovan had opined that "[g]iven the chronic and unpredictable nature of this aspect of her presentation, the Court may wish to consider if the threshold for the longitudinal approach is met." I can confirm that if I had thought that Stitch's capacity fluctuated with regard to contact generally, I would not have hesitated to have adopted the 'longitudinal approach' to capacity adopted by Sir Mark Hedley in PWK as I have done above.
- I am satisfied that, as a matter of law, it is possible for Stitch to exercise capacitous decision making in relation to contact with some people but not others. This indeed was accepted in City of York, and is a conclusion which I reached in the case of Re SF [2020] EWCOP 14. Plainly, the relevant information for contact with one person may well be different from the information relevant to contact with another or indeed all others; this may well be so where the particular person is a close family member (as in Re SF and as in the instant case) and/or (again as in Re SF) where P continues to hold on to clear memories of experiences of the relationship before the onset of the impairment of, or a disturbance in the functioning of, the mind or brain.
- I have considered Stitch's relationship with her mother with particular care. At times she appears to be able to understand, retain, use and weigh the information relevant to this relationship, and is able to communicate her decision in relation to contact with her mother. Dr O'Donovan was clear that at times Stitch understood the pros and cons of contact with her mother. However, Calderdale has proved to my satisfaction on the balance of probabilities that:
(a) Generally, Stitch's dysfunctional attachment style causes her to lose at times the ability to use and weigh the information relevant to decisions around contact with her mother; the relationship between Stitch and MS remains complicated, dysfunctional and enmeshed (see my earlier comments at §16 and §§51-54 above);
(b) Specifically, during the summer of 2023, Stitch refused support during her contact with her mother and asked to visit Skegness without staff support, despite her having expressed long standing challenges and a preference for support; this indicated an inability to use and weigh the information relevant to the contact.
In the circumstances, I am satisfied that it is appropriate for me to adopt the longitudinal approach in relation to Stitch's capacity to decide on contact with her mother, and to declare that she does not have capacity, though should be supported to reach decisions about that contact.
Specifics (3): Use of the internet and social media
- While at times it appears that Stitch is able to understand and communicate some of the risks involved in social media and internet use, her powerful needs, deriving from her dysfunctional attachment style, her craving for sexual satisfaction, her need for validation, and her deeply rooted fear of rejection, overwhelm her at 'material times' and rob her of her ability to use or weigh the risks of her social media use. The evidence is clear that when Stitch was permitted to make decisions in this area in June-August 2023, she put herself at significant risk of harm, and could focus on little else but her online activity (see §24 and §56 above).
- I have concluded that Stitch does not currently have capacity to make decisions about access to the internet and social media; Calderdale has demonstrated clearly that she lacks capacity to understand and/or use or weigh key information relevant to this decision, including the fact that information and images which are shared on the internet can and are shared more widely with people she would not know, without her knowing or being able to stop it, and that people with whom she communicated online may not be who they say they are (see §§57-59 above). That said, it is clear that Stitch enjoys looking at decorating and holiday websites, which are risk free, and I would not want the effect of the restrictions to deprive her of an activity which most people take for granted, and which might afford her some pleasure. This ought to be specifically considered and reflected in the support plan going forward.
Specifics (4): Capacity to engage in sexual relations?
- It is clear to me that Stitch does not have an understanding of sexual relations so as to be able to make a capacitous decision for the reasons set out by Dr O'Donovan and Ms A as I have recounted them above (see §66 and §67). The parties did not, in the end, dispute this conclusion.
- Dr O'Donovan was of the view that further attempts to educate her about sexual relations could be useful. It is possible, she opines, that Stitch could regain her ability to use and weigh information about the matters being considered, if she felt that her needs were met. This leads on to her opinion that:
"[Stitch] would benefit from having the opportunity to experience specialist relationship and sex education/ counselling. Through this intervention she could safely explore her sexual needs and be supported to gain knowledge of the different options for fulfilling these … [Stitch] could be supported to view [pornographic] material that is legal, appropriate and depicting consensual sexual activity and readily accessible without the use of the internet".
- It may be that low level sex therapy could assist Stitch to understand what options are available for her to experience sexual gratification in the absence of a partner; this may take several months. Calderdale has indicated its commitment to continue to offer support to Stitch in this area, and will take steps to review her capacity in this area, following any support of education. A report from the local Consultant Clinical Psychologist for the relevant NHS Trust confirms that the trust offers work around sex education when an individual has a significant lack of knowledge around sexual health. Whether this is the right type of service for Stitch, I am not sure. If the correct resource is identified (and Calderdale should endeavour to locate the same) – and if Stitch is willing to engage (she has shown ambivalence in the past) – I feel hopeful that some targeted work with Stitch and support around the issue of consent to sex and the making of choices in relation to sexual activity may well enable Stitch to achieve/have capacity in this area in the future. I make provision for this in the order which I propose (see §124 below).
Deprivation of liberty
- The level of supervision, the restrictions on Stitch's freedom to leave the placement on a day to day basis and the control over aspects of her life clearly satisfy the continuous supervision and control test. For those reasons, it is necessary for me to consider the arrangements for the deprivation of Stitch's liberty.
Order
- For the reasons set out above, I propose to make an order containing declarations pursuant to section 15 MCA 2005 that Stitch lacks capacity to:
(a) Conduct these proceedings;
(b) Make decisions as to:
a) Where she should reside (applying the longitudinal approach to her capacity);
b) The care she should receive (applying the longitudinal approach to her capacity);
c) Her contact with others (including insofar as her mother is concerned applying the longitudinal approach to her capacity);
d) The internet and social media;
e) Engaging in sexual relations.
- I require it to be recorded on the face of the order that sex education and counselling should be provided to Stitch in order to support her to regain capacity in relation to her engagement in sexual relations. I require Calderdale to file a plan for providing Stitch with education and support in this area of decision making within 21 days.
- I will further order Calderdale to file an amended and detailed support plan within 21 days of the date of this order, with input from Stitch herself, with the aim of moderating the risks identified in applying the longitudinal view of capacity in relation to her residence, care, and contact with her mother. The plan should make some provision for Stitch to be able to access harmless sites on the internet safely. This support plan should be accompanied by a statement from the key social worker or other appropriate professional setting out how the support plan was prepared, where Stitch's agreement as to her residence and general support has been forthcoming and where not, and the reasons for not following her wishes where relevant.
- I shall direct Stitch's legal representatives to file and serve a statement addressing her wishes and feelings on the issues arising in relation to the amended support plan filed above. This shall be done within 14 days thereafter.
- A round table meeting shall be convened within 7 days of the statement filed on behalf of Stitch to determine whether or not the amended support plan is agreed and can be submitted for the court's approval with an agreed draft order, or whether a further hearing in this matter is required.
- I shall in any event list the application for a short further hearing no earlier than seven weeks' hence. At that hearing, I aim to be in a position to make:
(a) Orders, pursuant to section 16 of the MCA 2005 and as a relevant decision pursuant to section 4A(3) and 4 of the MCA 2005, that it is in Stitch's best interests that she resides at 'Oak House' and shall receive the support set out in the revised support plan (provided for above);
(b) Orders authorising Stitch to be deprived of her liberty by virtue of the care package referred to above; such arrangements will be authorised by the court as being in Stitch's best interests. I shall make orders which provide for a review period.
(c) Orders which provide that if a change or changes to the care plan render the plan more restrictive (unless in an emergency), Calderdale must apply to court for a review of this order before any such changes are made.
In the event that there is agreement as to the orders to be made at that time, then a draft consent order can be filed for my review.
- Looking forward, it is important that all those who work with Stitch take full account of her own views as an integral component of the arrangements for her care and support, in strict observance with section 4(6) MCA 2005; within the parameters of the support and protection plan, Stitch's personal autonomy must be respected and her decision-making encouraged. The evidence which has been presented in this application suggests that at times Stitch is close to capacity (or even at times capacitous) in her decision-making; in those regards, thought must routinely be given to whether she may gain capacity (section 4(3) MCA 2005). Great weight must be attached to her views when they are clearly expressed; Stitch will be able to make many choices in her life, but not all.
- That is my judgment.
