Evidence and Legal framework
It was noted by Justice Theis that meeting with P prior to the hearing particularly helpful as P was able to explain with care the difficulties and frustrations she felt regarding the situation she was in.
Theis J did not consider that the uncertainty around diagnosis in relation to P’s impairment or disturbance of the mind had no material consequence, as there remained a causal nexus between the cause and the consequences namely, when P dissociated the symptoms outlined were the same in that they at times resulted in P losing capacity.
Drawing the evidential and legal threads together Theis J reached the following conclusions, set out at para 137:
“(1) Whilst most of the time P is able to make decisions about her care and contact with others there are limited times when she is unable to do so when she dissociates in the context of leaving the property in certain circumstances or seeks to admit visitors to it. In particular, at those times she is unable to properly weigh the relevant considerations, understand the significant risks and make decisions to keep herself safe which she recognises need to be made when she does not dissociate and has capacity.
(2) At those times the inability to properly weigh the relevant considerations is caused by an impairment of or disturbance in the functioning of the mind or brain which causes her to dissociate.
(3) No party submits that a longitudinal view of capacity should be taken in this case which I accept, as the evidence demonstrates that the relevant times when P is likely to lack capacity to make decisions regarding her care and contact relate to relatively infrequent isolated decisions.
(4)… there is jurisdiction under s15 MCA that enables the court, in principle, to make anticipatory declarations. Such declarations, if made, are not dependent on P lacking capacity at the time such a declaration is made as s15(c) refers to ‘the lawfulness or otherwise of any act done, or yet to be done, in relation to that person’ (emphasis added), clearly referring to a future event. The reference to ‘that person’ is to a person whose capacity has been determined under s15(a) or (b), which includes a declaration as to whether a person has or lacks capacity to make the decisions referred to in s15 (a) and (b). So, a declaration under s15 (c) is not dependent on a declaration of present incapacity,…, as both subsections (a) and (b) envisage positive declarations of capacity. The heading to Part 1 of the MCA is only a guide, at best, and there are other provisions in this part of the MCA which concern those with capacity (e.g. ss22 and 24 MCA).
(5) Whether the jurisdiction to make an anticipatory declaration should be exercised will depend on the facts of each case. The court will need to carefully consider the underlying principles of the MCA which is to protect and, where appropriate, make decisions for those who lack capacity in relation to a matter, but take all necessary steps to preserve the autonomy of those who have capacity. In The Shrewsbury and Telford Hospital NHS Trust Lieven J refused to make such a declaration as there was nothing more than a ‘small risk’ that the woman might lose capacity which was ‘insufficient’ to justify an anticipatory declaration, it risked the woman’s autonomy being overridden and there were other ways of managing the situation, such as inviting the woman to enter into an advanced declaration or relying on necessity.
(6) In deciding whether to exercise the jurisdiction under s15(c) the court will need to carefully consider a number of factors, including:
- (a) Whether there are other ways in managing the situation, for example whether s5 MCA can be utilised. As Lady Hale made clear in N v A CCG [2017] NZSC 22 [38]’… Section 5 of the 2005 Act gives a general authority, to act in relation to the care or treatment of P, to those caring for him who reasonably believe both that P lacks capacity in relation to the matter and that it will be in P’s best interests for the act to be done. This will usually suffice, unless the decision is so serious that the court itself has said it must be taken to court. But if there is a dispute (or if what is to be done amounts to a deprivation of liberty for which there is no authorisation under the “deprivation of liberty safeguards” in Schedule A1 to the 2005 Act) then it may be necessary to bring the case to court…’. This provision is not limited to only address emergency situations but there are clearly limits.
- (b) The need to guard against any suggestion that P’s autonomy and ability to make unwise, but capacitous decisions is at risk or any suggestion that the court is making overtly protective decisions.
- (c) To carefully consider the declaration being sought, and whether the evidence establishes with sufficient clarity the circumstances in which P may lack capacity and in the event that P does the circumstances in which contingent best interest decisions would need to be made. This is to guard against the risk that if the facts on the ground were analysed contemporaneously the court may reach a different conclusion.”
