Fluctuating capacity; The significance of ‘support’

An update from a regular series written by Mr Robert Wheeler, director, department of clinical law, where he considers various aspects of clinical law that our nursing staff, medical staff and other professions rely on when caring for patients.

Clinicians often encounter a patient whose capacity to make a decision relating to their care is in some doubt. There may be times in the day where the person is entirely lucid, and demonstrates without difficulty that they can understand, retain, and process information; and make a decisive choice about the next step in their treatment. Whilst at other periods of the day, such lucidity is absent. The notion of ‘fluctuating capacity’ denotes this situation and is often referred to in the common law.

In the case of Calderdale MBC v LS, the effect of support on a patient’s capacity was scrutinised. LS, a 31-year-old woman, had named herself ‘Stitch’ to the judge. He adopted this pseudonym throughout the judgment. Stitch has microcephaly and mild intellectual disability with a full-scale IQ of 52. She had taken 3 GCSEs prior to completing life skills courses at college.

Stitch originally resided with her mother; although even at that stage, she had 30 hours of one-to-one support each week. Her enmeshed relationship with her mother had been ‘…complicated, dysfunctional…which often became violent.’ She had struggled with her sexual development, and ‘…did not always channel her…desires and interests in an appropriate or healthy way.’ In December 2020, after revealing that she had been assaulted by her mother’s partner, she was removed from the maternal home, and at the time of the hearing had lived in supported accommodation provided by the local authority for 4 years, where she was very happy. She received one to one support from staff for 24 hours each day whilst fully engaging in activities such as cooking, arts, crafts, and drama. But due to concerns about her vulnerability and the threat of maternal coercion, the court had made an interim order to deprive Stitch of her liberty and freedom of movement, and to manage her use of the internet and social media.

The court was now being asked to consider her capacity, including in the context of whether she could make decisions about her residence, care, the use of social media, her contact with others; and her capacity to engage in sexual relations.

When surrounded by the local authority’s restrictive support network, Stitch ostensibly demonstrated that she could make decisions indicative of capacitous thinking. The judge found that she had ‘…become adept at holding conversations with professionals about her capacity…using hand gestures and facial expressions - this made her response feel quite genuinely felt and not a learned phrase or stock response.’ Staff at her residence reported that Stitch had become skilled at ‘saying the right things…talking the talk…learning certain terms such a ‘vulnerability’, ‘risk’, ‘safety’ which can lead the assessor to believe that her level of understanding is greater than it is.’ The court found that the evidence made it probable that ‘…Stitch has developed an ability to retain and deploy phrases and vocabulary which when used in the right context can and do mislead the listener into believing that she has a greater understanding, or ability of reasoning, than is in fact the case.’ However, at the moment that framework was removed, her ability to understand information, and use it to make a decision, receded to the point of indicating incapacity. The court concluded that if Stitch lost her ‘capacity’ when she was allowed to make unsupported decisions, this did not indicate fluctuating capacity.

On the contrary, Stitch ‘… has capacity to make decisions about where she lives and the support she receives and her contact with her mother but only provided she has the supportive framework… of her care workers.’ Therefore, the court found that the evidence suggested that she was unable to make decisions and lacked capacity. The ability to appear capacitous whilst being surrounded by supportive professionals is not by itself indicative of possessing mental capacity, fluctuating or otherwise.

Calderdale MBC v LS [2025] EWCOP 10 (T3)

Mr Robert Wheeler
Department of clinical law
May 2025