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Can the Court of Protection tell me where to live?

22 January 2020

You might have seen ‘What does the Court of Protection have to do with my vote?’ and ‘What does the Court of Protection have to do with my wedding?(What other decisions can the Court of Protection make and when can it make them?  The case of PWK gives us some answers.

It is not unusual for the Court to look at a person’s capacity to deal with a number of areas of their life.  In PWK’s case, his capacity to do several things all hangs together because everything is intertwined. 

PWK is 24 and had a very sad background.  He was neglected as a child and spent a lot of time in care.  While he was at school his educational needs were not met and he was later diagnosed with autism and a mild learning disability.  He also has a sight impairment.  He has been sectioned under the Mental Health Act 1983 and his care is still provided under that Act. 

Happily, PWK is now living in a house with another resident with day to day care provided by an agency.  He is happy with his house and his care. 

The Court of Protection became involved because although PWK said he is happy with his residence and care, the package of support deprives him of his liberty.  He is supervised two to one and there are restrictions on what he is able to do.  PWK does not have the capacity to consent to the care arrangements and so the Court of Protection needs to make decisions for him. 

The local authority applied to the Court of Protection for decisions about PWK’s capacity to decide various things: where to live, his care and support needs, what contact he should have with others, his use of social media and the internet, dealing with his finances and using a Motability car. 

Most people had thought that PWK lacked capacity in all these areas.  A consultant psychiatrist assessed PWK and thought that he may have capacity.  However, she then changed her mind.  Because of this change the Court wanted to look at this carefully.

As many of us find with clients with compromised capacity, PWK’s ability to make decisions was good when he was relaxed and happy.  However when he became anxious the situation could be very different.  Many things triggered PWK’s anxiety and he often displayed irrational behaviour that was difficult to manage.

The Judge drew a distinction between one off decisions such as making a Will or a Power of Attorney, and matters where PWK would need to make decisions regularly.  All of the decisions the Court was involved with were ones that would need to be made continuously.  PWK would need to make decisions about his finances continuously for example, and who he saw, his care package etc.  Because of the effect of PWK’s anxiety on him the Judge did not feel he had capacity to manage his finances, decide where he lived, make decisions about his care package or contact with others, or about the Motability car.

The last point the Judge had to decide was about PWK’s capacity to make decisions about his social media and internet use.  He referred to the Judgment in Re AThe Judge felt that PWK would be able to make many choices in this area but not all of them, and that he particularly lacked the ability to make judgments about what would actually be harmful as opposed to merely unpleasant.  Some judgments will simply have to be made for him. 

The Judge felt that PWK would be able to make many choices in this area but not all of them, and that he particularly lacked the ability to make judgments about what would actually be harmful as opposed to merely unpleasant.  Some judgments will simply have to be made for him. 

Comment

Many people will find it surprising that even when somebody appears to be consenting to restrictions on their liberty and there are no realistic alternatives to the care provided, the Court of Protection still needs to make a decision.  It is an important safeguard however.

It is unusual that the keeping of a Motability car should form a separate capacity decision.  Usually, as the Judge said, this would be dealt with during the care package.  The issue was that PWK could not drive it because of his sight impairment and the care agency was not willing to allow their staff to drive it either.  However, the Judge made it clear that because PWK was so fixated on the car, he would make a separate decision about that. He said “What is clear is that for PWK it is a dominant concern.  This concern generates disproportionate anxiety, which then seriously interferes with his decision-making in all areas and he does or says things which he usually rapidly regrets”, so PWK’s fixation on the car causes him anxiety which then compromises his capacity to make decisions in other areas. 

The Judge was very sensitive to PWK’s needs and also to his relationship with his social worker.  The Judge suggested, very insightfully in my view, that if Motability were to instigate the removal of the car, PWK may find this easier to live with and it might also prevent damaging his relationship with his very committed social worker.

On a touching note, the Judge sent this message to PWK, “I should like to end by wishing PWK, who has carried disadvantages that might have crushed another person, all the very best for the future and that he will find all the happiness that can be made available to him”. 

Lynne Bradey View Biography

Lynne Bradey

Partner
Sheffield

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