In this case the Court of Protection was asked to determine whether LT had capacity to determine where she wished to live and whether to have contact with her family. Her father, RT, acting as her litigation friend had issued proceedings in order that the capacity issue could be considered but also to challenge the authorisation of a deprivation of liberty given under the DoLS process. LT had been assessed throughout her childhood by numerous professionals and had been diagnosed with Reactive Attachment Disorder and, then later, with Pathological Demand Avoidance
Syndrome. As a young adult she had been found to be capacitated in relation to decisions regarding her health and dietary needs including where the decisions she had made were against her best interests. She was currently placed within a residential unit and had stated repeatedly that she wished to go home.
During the course of the proceedings she was again assessed by Dr K, a consultant psychiatrist, who concluded that she had a mild Learning Disability and a significant disorder of social functioning and interaction which is unspecified. He was of the view that she met the criteria for having impairment of, and disturbance in, the mind and brain as defined by the MCA. He went on to consider whether she could be incapacitated on the specific issues of whether to litigate, her residence and contact matters. In taking each stage of the four stage process in turn he believed that her disabilities prevented her from ‘hearing’ information she did not wish to process, particularly where she had a firmly fixed idea on a subject, she seemed unable to take in any information on counterbalancing arguments or alternative options; whilst she had no problem with her memory the difficulties in absorbing information, particularly that which is abstract in nature, meant that she was unable to use that information to weigh up the pros and cons so as to form a decision as required by s3(c) MCA. In his evidence he cited the fact that she could only list the positive benefits of returning home, rather than any positive benefits of the residential placements or risks associated with a return to her parents, as justification from determining that she had been unable to absorb this information and use it when weighing up the decision. He advised that she did have capacity to determine whether she wished to have contact with her family but lacked the ability at any particular moment to consider the impact contact would have so may need assistance in arranging time and places for suitable contact.
The Judge, though sympathetic to RT’s position that the issue of capacity was difficult to comprehend, concluded in line with Dr K’s evidence that LT lacked capacity to determine where she wished to live because she could not satisfy s3(c)MCA. The Judge commented that it appeared to him that RT’s primary concern was that if she were to be found to have no capacity that her wishes would not be given proper consideration. This was a separate matter and one he hoped could be agreed by those involved in her care but he did grant permission for the parties to return the matter on short notice to him for further directions if her best interests could not be agreed. In making the order the Judge adopted the official solicitor’s view of her best interests, namely, that she remain in the residential placement with a planned, supported and gradual move back to the home of her parents.