Expert Witness Journal Issue 68 August 2026 - Flipbook - Page 72
LM lacked capacity to make decisions about care and
support, and had capacity to make decisions about
engaging in sexual relations. However, both Dr
Radcli昀昀e and Dr L had concluded that LM retained
capacity to decide where he should live.
in Sussex. That would be an impossible task for
commissioners and thus the two issues of capacity of
residence and care were inextricably linked.
The judge’s decisions and reasoning
The judge concluded that LM lacked capacity to
decide where he should live. Although Dr L and Dr
Radcli昀昀e had concluded otherwise, the judge could
not accept their analysis. On the facts of this case,
care and accommodation were so closely connected
that they could not realistically be separated. LM’s
inability to appreciate his need for intensive support
directly a昀昀ected his ability to make a meaningful
decision about accommodation. The level of care
he required dictated the type of accommodation
available, and LM had repeatedly asserted that he
does not need support - a belief that illustrated his
inability to understand the foreseeable consequences
of rejecting care.
The question of residence capacity was critical
because when the time came for LM to leave
Placement 1 and move into the community, it was
universally acknowledged by everyone involved in
the case that he would need to do so with 24-hour
one-to-one support.
The ICB had been searching for alternative
placements for LM and had identi昀椀ed potential
options, including three supported living
placements requiring further exploration and care
planning. The proceedings were being pursued on
the basis that LM’s stay at Placement 1 would end at
some stage and he would move to another placement
in his best interests. The core concern was that if
LM was found to have capacity to decide where he
lived, he could reject the care package that was to
be made available to him and considered to be in
his best interests – a likely prospect given he had
previously told Dr Radcli昀昀e he did not need such a
care package.
Conclusion
The judge concluded that LM lacked capacity both
to conduct the proceedings and to decide where he
should live.
This case illustrates that capacity assessments for
residence and care should often be considered
together, rather than in isolation. The judgment
emphasises that whilst capacity is decision-speci昀椀c,
courts must avoid arti昀椀cial compartmentalisation
when the decisions are so closely interrelated
that separation would be unrealistic. Where an
individual’s inability to appreciate their care
needs fundamentally a昀昀ects their ability to make
meaningful choices about accommodation, those
decisions cannot be arti昀椀cially separated. This
principle has been emphasised in other previous
cases, such as Liverpool City Council v CMW [2021]
EWCOP 50.
Key issues for determination
The critical issue: Can residence and care be
separated?
The central legal question before the court was
whether LM’s capacity to make decisions about
residence could be assessed separately from his
capacity to make decisions about his care and
support.
The ICB submitted that an approach of considering
questions of capacity by reference to self-contained
silos i.e. separate issues was consistent with the
principles of the Mental Capacity Act 2005, which
was decision-speci昀椀c. The ICB submitted that
the decision in relation to capacity for residence
and capacity for care were not linked and could
be assessed separately. Therefore, an individual
could have capacity to make decisions in relation
to residence but lack capacity to make decisions in
relation to care.
Practical takeaways
On behalf of LM, it was submitted that the starting
point was that on the facts of this case the issues
of residence and care were “inextricably linked”. The
judge was reminded that the determination of
capacity is issue-speci昀椀c, and that the options for
LM’s residence would include the support which LM
needed. Therefore, a decision on capacity of care
could not be considered without looking at where the
care would be delivered. If someone lacked capacity
for residence they would be deemed to in relation to
care as they could not say that they wanted to live in
a 昀氀at in Mayfair when the care would be provided
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AUGUST 2026
