Expert Witness Journal Issue 63 October 2025 - Flipbook - Page 38
Fluctuating vs longitudinal capacity
In the judgment, there is a lot of discussion about
fluctuating and longitudinal capacity. Mr Justice Cobb
recognised that this was not a typical 'fluctuating' capacity case, as Stitch did not have periodic psychotic and/ or
dysregulated episodes. The parties disagreed as to
whether Stitch’s capacity to decide on care and residence
fluctuated and on what approach should be taken:
3. Formality: The documentation should be formal
and there is a need to tell people that their capacity is
being assessed but the style or approach may need to
be less formal or at least flexible and tailored to the
person whose capacity is being assessed.
4. Engagement: Take all practicable steps to ensure
that every effort is made to assist the person to engage
with the assessment e.g. simple words, support from a
carer to ask questions, Makaton, time of day, location,
visual aids, story boards.
l Approach 1: Anticipatory declarations catering for
fluctuating capacity where there are temporary periods of dysregulation (anticipatory declarations were
considered in Wakefield MDC v DN & MN [2019]
EWHC 2306 (Fam)); or
5. Non-engagement: Is the person unwilling or unable to undergo a capacity assessment? What can be
changed to aid engagement? It is not possible to force
someone to undergo an assessment and, in such cases,
it may be appropriate to rely on triangulating evidence to come to a reasonable belief as to whether person lacks capacity. In such situations an application to
the court may well be necessary to make the ultimate
decision. If this situation arises, please do get in touch
with our Court of Protection lawyers who are experienced in advising on capacity assessments and Court
applications.
6. Recovery: consider whether there is any prospect of
the person regaining capacity and whether the decision could be safely postponed until the person can
make it themselves.
7. Relevant information: The information to be
discussed with the person varies depending on the nature of the decision to be made. Please get in touch
with us for specific guidance on the relevant information for each capacity domain.
8. Ask open ended questions.
9. Tangible options: Ensure concrete details can be
given of any options available (e.g. living in a care
home vs living at home with a package of care).
10. Executive function: Consider real-world evidence
of their ability to plan, organise and initiate actions.
11. Evidence base: Gather information from people
who know the person well to gain an insight into the
person’s decision-making patterns and abilities.
Consider the broader context of the decision making.
l Approach 2: Take a 'longitudinal' approach
catering for those decisions taken regularly or repeatedly (sometimes at short notice) as opposed to isolated
decisions (the longitudinal approach was considered
in Cheshire West v PWK [2019] EWCOP 57). E.g. the
management of a health condition. Repeated decisions may make it appropriate to take a broad view as
to the ‘material time’ during which the person should
be able to make the decisions in question.
Mr Justice Cobb found that there were times when
Stitch could articulate a level of understanding and
reasoning that suggested she had capacity, however at
other times she showed such a clear and marked lack
of understanding or reasoning about her residence
and care needs that she could not be view under any
circumstances as having capacity. Taking a longitudinal perspective on her capacity, he declared her uncapacious in these areas. The same longitudinal
approach was adopted in relation to contact.
Factors relevant to the approaches to assessing
capacity
Assessing capacity requires a multifaceted approach.
There are number of factors we have observed to be
relevant when determining the best approach for an
assessment of capacity:
l Diagnosis.
l How loss of capacity arises or manifests.
l Predictability e.g. specific periods or changeable depending on the situation.
l Current presentation.
l Relevant information to be considered under each
domain e.g. care, residence, contact.
l Regularity of decisions e.g. how often.
l Workability of solution: is a long and arduous
process required to consider whether the person lacks
capacity in the given moment dependent on place,
time, duration etc? If so, it may be better to make a
declaration that the person lacks capacity.
l Protection of the person’s autonomy (interference
to the minimum degree necessary to ensure safety).
12. Identify the salient factors where there is an
assessment that the person lacks capacity. The best assessments will identify specifically what aspect the person could not understand, comprehend, weigh up,
retain or communicate in relation to the particular
decision.
13. Conclusion: state your conclusion as to whether
P has capacity to make specific decisions, and the
reasons.
14. Document: the assessment (including the
questions asked and the person’s responses) on the appropriate form. E.g. capacity assessments are to be
documented on a COP3 form for the Court of
Protection.
Tips for producing a robust capacity assessment
1. Decision specific: Identify the specific decision to
be assessed.
2. Timing: Assessments should be conducted at the time
the decision is to be made. However, the timing of the
assessment itself is important and should, if possible, be
conducted when best suited to the service user.
EXPERT WITNESS JOURNAL
Author
Lynette Wallace
Associate at UK and Ireland law firm Browne
Jacobson
lynette.wieland@brownejacobson.com
36
OCTOBER/NOVEMBER 2025
