Leicestershire County Council v P & Anor (Capacity: Anticipatory declaration) [2024] EWCOP 53 (T3)

Decision about when and whether P, who has a dissociative disorder, has capacity to make decisions about her care and contact with others.

P was an individual with complex psychological trauma and a dissociative condition. Experts testified that P’s ability to make decisions fluctuates, particularly during dissociative episodes so the central question was whether the Court should issue anticipatory declarations for instances when P might dissociate and lose capacity, thereby allowing carers to intervene in her best interests during these periods.

In this lengthy judgment, the Vice President reviews the expert evidence and legal framework before setting out her conclusions at [137]. Broadly, she finds that P does have capacity when not dissociating but she declines to make an anticipatory declaration preferring instead [138] to rely on the on the framework in the MCA as that gives 

"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. 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"

Read the judgment on the National Archive