A Local Authority v KP & Anor

For a person aged 16 or over, capacity must be assessed decision by decision under the Mental Capacity Act 2005. A person must not be treated as lacking capacity merely because the decision appears unwise or exposes them to risk. The relevant information must include risks specifically arising from the proposed person, place or relationship. Before making a final declaration of incapacity, the court must ensure that all practicable steps to assist decision-making have been attempted. Capacity may fluctuate.

Where there is reason to believe that a person lacks capacity, interim declarations and protective orders may be made. Best-interests decisions must be confined to available options and should be the least restrictive workable arrangements. The Court of Protection may grant injunctions in support of its decisions, but coercive orders affecting a non-party require procedural fairness.

The Local Authority brought proceedings in the Court of Protection and under the inherent jurisdiction concerning KP, an 18-year-old woman with autism and significant cognitive impairment. It sought declarations that she lacked capacity to decide whether to live with, or have contact with, D, and a declaration that living with D was not in her best interests.

D was KP’s cousin and her mother’s partner. He had convictions for possessing indecent images of children and was alleged to pose a significant risk to KP. KP had repeatedly absconded from placements and returned to her mother’s home, where she was then working successfully alongside her mother.

The central issues were the proper statutory jurisdiction, KP’s decision-specific capacity, the need for further support before a final declaration, the available best-interests options, and interim protective relief.

1. Statutory framework. The Mental Capacity Act 2005 provided the appropriate framework for decisions concerning a person over 16 who might lack capacity. In light of the statutory scheme, the matter should be considered under the Act before resorting to the inherent jurisdiction. The inherent jurisdiction remained potentially relevant to protect a vulnerable person who had capacity and was subject to unlawful interference with decision-making.
2. Capacity. Capacity was decision-specific. KP was presumed to have capacity, and an unwise decision could not itself establish incapacity. The relevant information for deciding whether to live with, or have contact with, D included the risks arising from D’s convictions, character and influence. KP’s learning disability and autism constituted an impairment of the mind or brain. The evidence showed that she presently lacked a real degree of understanding of the risks D presented and could not engage with the possibility that her mother and D were wrong about those risks.
3. Support and interim declarations. The court could not make a final declaration of incapacity until targeted psychological work and further testing had been attempted under section 1(3). Capacity might fluctuate with KP’s emotional regulation. Nevertheless, there was reason to believe that she lacked capacity, so interim declarations were justified under section 48.
4. Best interests. D presented a significant risk, but no suitable alternative accommodation had been identified. Best-interests decisions had to be made from the available options. Repeated coercive placements had resulted in self-harm, suicide attempts and an unsustainable cycle of absconding. Continuing to live at J’s house was therefore the only presently available option, although it was not a good option.
5. Protective relief and orders. The Court of Protection could grant injunctions supporting its best-interests decisions. Immediate orders required weekly private meetings with the Local Authority, access to J’s home for safeguarding purposes, and cooperation by J and D. An order excluding D from the home was not made because he was initially a non-party and had not been given a fair opportunity to respond. D was joined as a party, and any application for exclusion or other long-term coercive relief was to be made on notice.