Cheshire West And Chester Council v PWK [2019] EWCOP 57

Application by local authority for declarations that PWK, who suffers from autism and learning difficulties, lacked capacity in six areas, including over where to reside and about use or possession of a car, in circumstances where he had fluctuating capacity.

In this judgment Sir Mark Hedley reminds himself that the current support package involves a deprivation of liberty and notes that the expert evidence, that had changed over time, was that when PWK was relaxed, he may appear to have capacity but that anxiety could trigger irrational behaviour. He then reviews recent cases involving fluctuating capacity and states at [20]

“seems to me that the closer the protected person is at the moment of actual decision to capacity, the greater the weight that his views must carry and of course, any decision made must take in to account that he may acquire capacity and, therefore, it must not be beyond change.”

Applying his analysis to the facts of this case, he concludes that he should make a separate determination concerning the use of the car (following Cobb J in  Re A (Capacity: Social Media and Internet Use: Best Interests) [2019] EWCOP 2)) as it was clearly a serious concern for P and affected his behaviour accordingly. He therefore made declarations that PWK lacked capacity to make decisions about the car and to conduct proceedings to determine his residence or care or his contact with others or his management of his own affairs.

Read the judgment in full on Bailii