Expert Witness Journal Issue 63 October 2025 - Flipbook - Page 37
Producing robust capacity
assessments and the approaches
to assessing capacity
by Lynette Wallace, www.brownejacobson.com
I wish to emphasise that this does not fatally undermine the
integrity of Ms A’s assessment altogether which contains some
useful insights, but I am bound to treat the evidence which
emerged from these discussions with more caution than if this
had been a more formal capacity assessment…”
The case of Calderdale MBC v LS [2025] EWCOP 10
(T3) considered capacity in various areas (litigation,
residence, care, contact, internet and social media, and
sex) for a vulnerable 31-year-old woman, referred to
as 'Stitch' at her request, in reference to her favourite
Disney character. Stich has mild intellectual disability,
ADHD, and dysfunctional attachment style.
The Judge took the view that for capacity assessments
to be reliable, they must be rigorous and formal, and
practitioners should inform individuals that their
capacity is being assessed.
Court proceedings initially started in 2019, at the end
of which Stitch was declared to have decision-making
capacity in most areas of her life. However, the case
was revisited shortly after due to a deterioration in
Stitch’s presentation and concerns from the local
authority about her capacity in various areas.
A formal capacity assessment was considered
necessary for Stitch’s case, but it is worth bearing in
mind that there could be circumstances where undertaking a less formal capacity assessment, where P is
not informed that the assessment is taking place, could
be justified e.g. where P refuses to engage in an assessment of their capacity or where knowledge of such
assessment is likely to cause P significant harm.
Further capacity assessments and expert evidence
were gathered, and following a hearing in January
2025, Mr Justice Cobb declared Stitch to lack capacity
to conduct proceedings and to make decisions about
residence, care, contact with others, internet and social
media use and engaging in sexual relations.
Can a finding of capacity be made be if it is
contingent on there being a compulsory support
plan in place?
The Official Solicitor suggested that the court could
make “contingent orders” that Stitch had capacity to
make decisions about residence and care, provided
that a compulsory support plan was always in place.
Similarly, regarding decisions about contact with her
mother, Stitch could be found to have capacity provided she had a compulsory support plan and the
support and presence of carers. The Official Solicitor
asserted that this approach aligned with a core principle of the Mental Capacity Act (MCA), namely,
to support individuals in making decisions for
themselves.
Mr Justice Cobb found neither the capacity assessments undertaken by the independent expert or the
local authority to be satisfactory and the importance of
rigorous capacity assessments was emphasised. The
Judge also determined that decision-making capacity
cannot be contingent on there being compulsory care
plans or support in place. Finally, the complex areas
of fluctuating and longitudinal capacity were explored. We take a more detailed look at the Judge’s
findings in this article.
Formal capacity assessments and the need to tell P
that they are being assessed
Following the declaration in June 2023 that Stitch had
decision-making capacity in various areas of her life,
she was given more autonomy and allowed unrestricted use of her mobile phone and social media.
However, she found this overwhelming and began to
engage in risk taking and harmful behaviour. Ms A, a
social worker, re-assessed Stitch’s capacity over approximately eight visits during a five-week period and
reported in August 2023 that Stitch no longer had
capacity in these areas.
Mr Justice Cobb however questioned Ms A’s
assessment process, describing it as “unorthodox” and
lacking the necessary rigour:
However, Mr Justice Cobb said that decision-making
that could be called capacitous only when P was ‘contained’ by a continuous and compulsory framework
of protections, supports and restrictions, lacked autonomy or self-determination, which were essential
characteristics of capacitous decision-making. Adopting the Official Solicitor’s approach would lead to the
conclusion that Stitch had capacity only when she was
compulsorily contained or supported and lost capacity whenever she made her own unsupported decisions. That did not suggest that she had capacity or
even that her capacity fluctuated; rather, it suggested
that she was unable to make her own decisions.
“I find that Ms A failed to spell out clearly the purpose of the
questions for Stitch during the eight or so visits in the summer
of 2023, and did not specifically advise Stitch that her
capacity in several areas was being assessed.
The Judge’s view was that decision-making capacity
cannot be contingent on continuous compulsory care
plans or support.
EXPERT WITNESS JOURNAL
35
OCTOBER/NOVEMBER 2025
