An anticipatory declaration vs s.5 and s.6 of the Mental Capacity Act 2005

The fundamental issue in this case was whether P has capacity to make decisions about her care and contact with others. 

P has a current diagnosis of Dissociative Identity Disorder (DID). She has suffered significant trauma in her early and later life and this has had a huge impact on her mental and psychological health. 

P had disclosed in therapy that she was involved with an abuse group related to a religion and that one of her identities was being contacted to attend meetings where she was subject to abuse that her main identity was not aware of - her main identity had returned home on occasions with injuries consistent with possible sexual and physical assault. The police had investigated three incidents but were not able to pursue investigations due to lack of evidence. 

At times, P has been detained under the Mental Health Act 1983 (MHA) and has had extended periods in specialist placements. More recently she has lived in her own home, with care and support provided by a number of domiciliary care agencies (as a result of package breakdown) arranged by the local authority and the Integrated Care Board (ICB) in accordance with s.117 MHA aftercare. P also receives long-term psychotherapy from the Clinic for Dissociative Studies (CDS) which is commissioned by the ICB.

The local authority commenced proceedings in June 2023. Interim declarations were made under s.48 MCA that P lacked capacity to make decisions about her care and accommodation and to litigate proceedings. The other parties were P, originally through the Official Solicitor (who was later discharged as litigation friend), and the ICB. A 4-day contested capacity hearing was held in August 2024 where evidence was heard from the jointly instructed expert, Dr Camden-Smith, P’s psychotherapist and her social worker. 

The parties agreed that, as a consequence of the trauma P has suffered, she has an impairment of the mind which causes her to have periods of dissociation and when P dissociates, it was agreed that she can experience:

• dissociative amnesia (significant loss of memory for past or present events)
• depersonalisation (a sense of disconnection with bodily feelings and sensations) and
• derealisation (a sense of disconnection or disorientation with one’s external environment)

CDS say that P also experiences:

• identity confusion (a profound sense of feeling unknown to oneself and/or confusion about who one really is) and
• identity alternation (the presence of one or more altered identities or identity states)

Although this was not supported by Dr Camden-Smith, whose view at the hearing was that P’s diagnosis is more accurately that of Complex Post Traumatic Stress Disorder (CPTSD) which causes P to have periods of dissociation rather than different identities. 

The Court heard evidence that P was at risk of harm when she meets people who pose a risk to her and when she leaves her home at night.

What the evidence wasn’t clear about was how P’s periods of dissociation could be recognised by carers, the frequency of the dissociation and the duration, but no party argued that the Court should apply a longitudinal approach to P’s capacity in this case. All parties were also agreed that a crisis plan should be in place and that input from the Mental Health Trust and Community Mental Health Team was needed. The Court commented that this was imperative after their “apparent abdication… to provide a framework for P’s care and support” and having “effectively delegated that function to her treating therapists, CDS”. 

The key issues between the parties were:

1. P’s diagnosis and her capacity to make decisions about her care and contact with others.
2. The court’s power to make anticipatory declarations and should it do so in this case, or does s.5 MCA afford an appropriate framework for the facts of this case.

The Local Authority's position

Having heard the evidence that Dr Camden-Smith was of the view that the appropriate diagnosis for P was CPTSD with dissociative characteristics (the Court commented that it was “unfortunate that view was not flagged up by Dr Camden-Smith earlier”) as a result of her history of abuse, and not DID, the local authority were of the view that P had capacity regarding her care, support and contact with others.

Their position was that:

1. They didn’t accept that when P dissociates, she loses capacity. They were of the view that the presumption of capacity had not been rebutted,
2. The Court did not have jurisdiction to provide ‘anticipatory declarations’ to govern the best interests of a person with capacity for times when they might come to lose capacity,
3. Relying on Mostyn J at paragraphs 27 – 41in Amira [2023], a declaration under s.15(c) MCA is dependent on a declaration of present incapacity,
4.  An anticipatory declaration would not be of any practical benefit in this case, and
5. Carers can rely on s.5 of the MCA.

P's position

It was submitted on P’s behalf that Hemachandran [2024] made clear that a formal diagnosis is not required. There was evidence in P’s case where there were times when a disturbance in P’s mental state (for example by dissociation) prevented her from making a decision. 

Their position was that the Court can make a declaration under s.15 MCA that when P lacks capacity to make decisions about her care and support, it is lawful for a crisis plan to be implemented, even if she is objecting at the time.

They rejected the LA’s submission that anticipatory declarations are not workable in this case as the court cannot predict the circumstances in which a person will lack capacity or bind the carers to respond in a certain way. Whether there is a declaration or not, carers will need to form a view on P’s capacity and if she lacks capacity, they will need to act in her best interests. 

P’s capacitous wish was for a crisis plan to be implemented and a declaration would confirm the lawfulness of the plan, provide a safety net and some clarity for untrained carers.

The ICB's position

The ICB did not positively seek declarations, although it supported the proposition that P has capacity to make decisions about her care and contact save for when she dissociates, and only in those circumstances it is in her best interests to be in receipt of a crisis plan.

The ICB’s view of the evidence was that it demonstrated that P’s capacity fluctuates sufficiently for the Court to make "qualified declarations that P lacks capacity in certain situations" following the approach taken by Lieven J at paragraph 51 in A Healthcare B NHS Trust v CC [2020] and by Hayden J at paragraph 35 in GSTT and SLAM v R [2020]. The ICB’s view was that adopting this approach would strike the right balance in promoting P’s autonomy whilst protecting against the risks.

In drawing the evidential and legal threads together, the Court determined that:

1. Generally, P is able to make decisions about her care and contact with others but there are limited times when she is unable to do so, and at these times she cannot 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 these 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. 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 s.15 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.
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. 
6. In deciding whether to exercise the jurisdiction under s.15(c), The court will need to carefully consider a number of factors including:
   
   1. Whether there are other ways of managing the situation, for example whether s.5 MCA can be utilised. Lady Hale made clear at paragraph 38 in N v A CCG [2017] ‘…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 her 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…’. The Judge confirms that this provision is not limited to only address emergency situations but that there are clearly limits to it.
   2. 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.
   3. Carefully considering 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.

On the evidence in this case, despite having the jurisdiction in principle to do so under s.15 MCA, the Court did not make an anticipatory declaration for the following reasons:

1. There is considerable uncertainty about how it would be possible to establish when P has dissociated to the extent where she loses capacity to make decisions about her care and contact with others and it would be difficult for domiciliary care workers on the ground to assess this in circumstances where P’s Article 5 (right to liberty and security) and Article 8 (respect for private and family life) rights are affected.
2. The focus of the anticipatory declaration sought in this case relates specifically to when P lacks capacity and decides to leave her house or admit visitors to it. On the facts, there has been a significant reduction in the number of instances of these circumstances in part due to the consistency of the work being undertaken by CDS.
3. P is clear that she wishes to be protected from such risks and that her care package should include a crisis plan.
4. There was no significant dispute that a crisis plan should be in place and the ICB has provided assurance that pro-active steps were being taken for that to be done with the involvement of the Mental Health Trust and the local authority working with P.
5. With the increased involvement and participation of the Mental Health Trust, the Judge was satisfied that there were other ways, short of making an anticipatory declaration, of promoting P’s autonomy and capacity to make these decisions herself with support.
6. P remains protected by the existing statutory framework in s.5 and s.6 MCA that give general authority to those caring for P 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. The Court decided that using this framework will have the advantage that decisions are taken contemporaneously both as to capacity and best interests, having up to date information on matters such as P’s wishes and are more appropriate to guard against such infrequent occasions as in this case.

It was recognised that s.5 and s.6 may not have been intended to provide a complete catch all means by which carers can implement a care plan and are arguably more designed to provide protection from liability for carers to carry out certain but not all tasks, but on the particular and unusual facts of this case, the Court decided that that legal framework better provides for P as it has the advantage of decisions being made contemporaneously, particularly where, as here, the risks being guarded against happen relatively infrequently so need to be considered in the context of an extended time frame. Carers or others are going to need to be making the same capacity assessment whether an anticipatory declaration was made or not.