On 12 October 2023, we hosted the annual Mental Capacity Act Conference. This year's conference saw the knowledgeable and well respected Parishil Patel KC and Joseph O’Brien KC take the stage together to discuss approaches to fluctuating capacity and anticipatory orders. The fact that both Parishil and Joe had chosen to speak about this topic gave a real insight into this increasing problem facing the Court of Protection.

Cases of fluctuating capacity

Fluctuating capacity is a complex issue that is dealt with in Court of Protection. There’s no definition of ‘fluctuating capacity’. It captures those who sometimes have capacity to make the relevant decisions, but during periods of dysregulation they lack capacity to make the relevant decisions. It’s often difficult to establish what approach to take as it must be one that best promotes the protected party’s (P) autonomy and article 8 rights. Yet it’s crucial this is done as much as possible given this is the role the Court of Protection plays in a persons life.  

One important point of consideration when deciding if P has the necessary capacity is that there’s a fundamental difference between P lacking capacity and P making an unwise decision. The courts can’t intervene in a case where P is making an unwise decision when they have capacity.

The starting point in these cases is to presume P has capacity and work on that basis. It should never automatically be assumed that P lacks capacity. This is crucial for promoting P’s autonomy.

Anticipatory declarations or a longitudinal approach?

When P has fluctuating capacity, there is a debate as to whether making anticipatory declarations is the better approach or whether to take a longitudinal approach.

The difficulty some people have with the longitudinal approach is that it starts with the presumption of incapacity. As covered above, the starting point should always be that P has capacity. So arguably, from the get-go in fluctuating capacity cases P’s autonomy is not promoted as it should be when taking a longitudinal approach. The flip side is, by not taking a longitudinal approach you would fail to protect P in times of emotional dysregulation and therefore not promote their autonomy.

This is where the debate of pragmatism versus autonomy comes in. Anticipatory declarations do promote P’s autonomy more, but it requires a lot from those working on the ground with P. Given the current social care issues it’s questionable if this is the safest approach and if it does promote P’s autonomy. Is it safe or fair to require care staff to make this judgement call?

The courts seem to favour the longitudinal approach. It makes clear that whilst P lacks capacity to make decisions, when helped by care workers, they should promote P’s autonomy as best as possible. This keeps interference to the minimum degree and keeps them safe. It’s for these reasons that the court favours the longitudinal approach. It removes the need for care workers to make decisions which could be wrong and ultimately go against P’s autonomy. This is a way of promoting P’s autonomy whilst taking the longitudinal approach.

Case law doesn’t specify that one approach is better than the other when looking at fluctuating capacity. Below is a summary on the use of anticipatory declarations, referencing comments made by Joseph O’Brien, KC from the Mental Capacity Act 2005 annual review.

Mr O’Brien, KC explained that the increasing need for anticipatory declarations/orders is due to the issue of fluctuating capacity. He then introduced the case law. He explained that although anticipatory declarations are sometimes necessary, they shouldn’t be made because of the wording of section 16 of the Mental Capacity Act. Mr O’Brien then discussed the reluctance of the courts to make anticipatory declarations. He described how they should only be made in specific circumstances (such as pregnancy) and by a High Court Judge.

Case law

Both Mr Patel KC and Mr O’Brien KC referred to recent case law such as ‘PG and Wakefield MDC and Wakefield CCH v DN and MN ’. This case gave insight into the difficult task Judges have when deciding whether to make anticipatory declarations. For example, in ‘PG ’, Mrs Justice Lieven expressed her concerns that making anticipatory declarations could put care workers in a difficult position - where they have to judge whether a person has capacity in that particular moment. They also reviewed the controversial case of ‘NHS Foundation Trust v Amira ’ where Mostyn J held that anticipatory declarations can only be made when P lacks capacity at the time of making the declaration.  

Throughout the talk, Mr Patel KC and Mr O’Brien KC continued to mention the importance of autonomy. Both referred to case law such as Re E (Medical Treatment: Anorexia) and Warrington BC v Y, AB and CD . Both highlighted the idea that making an anticipatory declaration may conflict with the preservation of autonomy.

It was interesting to see how two people in the same area of law can have conflicting views on the concept of anticipatory declarations. It was evident from the talk that anticipatory declarations are a concept that needs further guidance as it remains unclear in which instances anticipatory declarations are appropriate.