The Court of Protection makes decisions on behalf of a Protected Party (P) when they otherwise lack the capacity to make that decision themselves. Those decisions can be in relation to any issue that requires determination, with the matters being split between either the Protected Party’s property and Financial Affairs or Health and Welfare.
Decisions are made in accordance with the Protected Party’s best interests. Before making any decision, the Protected Party’s capacity will have to be assessed in relation to the specific issue in question and only if the Protected Party is found to lack capacity will the Court of Protection have jurisdiction. Our previous blog considers the requirements for finding capacity. As seen in that blog, capacity assessments can be complex and are not always clear cut. Adding to the complexities, it is possible for there to be a finding of fluctuating capacity.
Fluctuating capacity presents itself when the Protected Party meets the requirements to be assessed as retaining capacity however on occasion those requirements are not met and at that point, the Protected Party will be assessed as lacking capacity. A simple example of fluctuating capacity can be seen with a person suffering from a medical condition which affects their ability to act, such as epilepsy where ordinarily a person would retain capacity however whilst in an epileptic state, they would be unable to make or communicate a decision.
A finding of fluctuating capacity requires a delicate approach in the Court of Protection as the Protected Party both retains and lacks capacity and at the times the Protected Party retains capacity, the Court of Protection has no jurisdiction to make a decision on behalf of the Protected Party. The Court will be required to consider suitable measures to be put in place for those instances when the Protected Party’s capacity is found to be fluctuating and also requirements to determine at what point the Protected Party retains or lacks capacity.
Oldham Metropolitan Borough Council v KZ (by his litigation friend the Official Solicitor) and others
Background
In the recent case of Oldham Metropolitan Borough Council v KZ (by his litigation friend the Official Solicitor) and others, the Court of Protection was required to make a decision where KZ had been found to have fluctuating capacity. KZ was found to retain capacity to make decisions regarding his residence, care and contact with others however his capacity often lapsed due to behavioural episodes, which usually took place on a daily basis. This presented difficulties when considering the appropriate decision as the Court of Protection was only able to make a decision in respect of KZ’s best interests during those behavioural episodes when KZ was found to lack capacity.
The Court of Protection made the declarations sought by the Local Authority and approved the care plan proposed by them. The care plan sought to promote KZ’s autonomy and capacity but included measures for KZ’s protection during those episodes where KZ lacked capacity. This included the need for 2:1 support which KZ wished to reduce with it only being required during those behavioural episodes. KZ accepted the need for the care plan as this enabled him to remain at his placement.
Comment
This case demonstrates how the Court of Protection will decide cases where the Protected Party has been found to have fluctuating capacity. As always, the decision reached focused on the Protected Party’s best interests, however, given the Protected Party’s finding of capacity, allowed for the Protected Party to have greater involvement in the decision made.
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