Where Capacity Assessments Conflict – Untying The Gordian Knot

Earlier this year this blog analysed the case of Re B: (Capacity: Social Media: Care and Contact) [2019] EWCOP3 in relation to social media. Those who read the judgement will have noticed that the judge also made findings in relation to other questions of capacity that appeared somewhat paradoxical. There has now been an appeal B v A Local Authority [2019] EWCA Civ 913, warranting further discussion.

A is a woman in her early thirties with learning difficulties, epilepsy and high level social care needs. Her use of social media has brought her into contact with male strangers including Mr C, a man in his seventies with multiple sexual offence convictions and subject to a Sexual Harm Prevention Order. B's contact with Mr C, along with her desire to live with and have sexual relations with him, formed a central part of the original judgement. In October 2018 Cobb J made an interim injunction on Mr C prohibiting contact with C. At a later hearing, he was found to have breached this order.

Cobb J, in his judgement in February 2019, made the following declarations:

B had capacity to make decisions in relation to her residence; B lacked capacity to make decisions about her care package, and education would not improve this; B lacked capacity to make decisions about who she had contact with, in part because she refused to use and weigh Mr C's prior convictions in her decision-making, and no practical help would improve this; B lacked capacity to make decisions over social media usage but practical help should be offered to enable her to acquire capacity; and B lacked capacity to make decisions about sexual relations, but education should be provided. The Official Solicitor, on behalf of B, appealed decisions 4 and 5 but the appeal was dismissed. The local authority cross-appealed decision 1. The cross-appeal was allowed.

Cobb J had tried to maintain complete separation between each question of capacity, which the Court of Appeal said resulted in a “flawed conclusion” that B had capacity to determine where she should live. They highlighted a contradiction between the declaration that B lacked capacity to make decisions about her care and the comment that, in relation to the question of residence, she understood the care she would receive living with Mr C...