Judgment concerning capacity in relation to contact and care where PG's capacity may fluctuate .
PG is a 34 year old woman with diagnoses of autism spectrum disorder, Emotionally Unstable Personality Disorder and mild learning disability. She lives in a supported living placement. Before then she lived with her mother where a deterioration in her mental health led to her being admitted under s2 of the MHA. There had been a number of incidents involving PG around drugs, alcohol and approaching younger men in public. At the hearing, a social worker talked of potential triggers for this behaviour and a medical expert evidence, while lacking clarity, was based on observations of PG while in a heightened state.
Lieven J pinpoints the difficulties around PG's capacity at  noting there was a correlation between times when she may not have capacity and made unwise decisions. She then looks at the authorities on fluctuating capacity including Greenwich v CDM and Wakefield MDC v DN and MN and considers whether to make an anticipatory order or take the ’longitudinal’ approach outlined in Cheshire West v PWK. At  she notes that
“It is a fundamental principle of the European Convention on Human Rights and the Strasbourg jurisprudence that the Rights should be interpreted in a way which makes them real and practical, not theoretical and illusory.”
Her concern here was that “making an anticipatory declaration in a case such as this, is that it would in practice be unworkable for those caring for PG” so she concludes that the more practical and realistic approach was to make a declaration that PG lacks capacity though ensuring any care workers protect her autonomy and only interfere to the minimum degree necessary.
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