In an application made to the Court of Protection, which proceeded as a challenge to the standard authorisation granted by the second respondent Local Authority, the court’s adjudication was required on whether P had capacity to make decisions about his residence, care and a best interests decision about his future. Manisha Marwaha represented the second respondent Local Authority.

The Honourable Mr Justice Cobb was required to consider whether the presumption of capacity was, on the evidence, displaced. P was an inpatient at a treating hospital who had been clinically fit for discharge for over two years and was extremely resistant to leaving the hospital. Of particular relevance, evidence was considered which related to P’s longstanding lack of engagement with the decision-making process, the support available to him to make a decision and the suggestion of fluctuating capacity. The litigation friend acknowledged, following the evidence and on a fine balance, that the presumption of capacity had indeed been displaced. The adult children of P however maintained that their father had capacity to make decisions about his residence and that he was simply choosing not to make a decision.

Mr Justice Cobb concluded that although P had been able to understand the issues around his future residence and care and could communicate reasonable objections to a proposed move from the hospital; he was unable to retain abstract information about his future potential residence arrangements and care needs even when encouraged to do so. P was further unable to use and weigh the information relevant to the decision about his future residence and care. Mr Justice Cobb accepted that P’s mild cognitive impairment had so adversely impacted his executive functioning that he no longer had the ability to use or weigh the information relevant to the decision about his future. Moreover, he lacked insight into his medical condition and had no real appreciation of his need for ongoing treatment, without which he would become seriously unwell.

The Court of Protection accordingly remain engaged in considering the future best interests of P in the plans for his future residence and care.

KG (Capacity) [2021] EWCOP 30. The full judgement appears here –