LM v NHS Sussex Integrated Care Board

On 25 September 2024 Peter Edwards (Mr Edwards) the proposed ALR for LM issued an application under section 21A of the Mental Capacity Act 2005 challenging the standard authorisation in place in respect of LM. At the time (as he still does) LM resided Placement 1. Placement 1 is a residential care home for people with an acquired brain injury.

The application was issued against West Sussex Council and NHS Sussex Integrated Care Board (ICB), but since my order dated 29 November 2024, the application has only proceeded against ICB. Mr Edwards was appointed the ALR of LM by my order dated 7 October 2024.

On 1 August 2025, I directed that a hearing be listed on 24 November 2025, with an estimated length of hearing of three days, to determine the issue of the mental capacity of LM. The phrase mental capacity was shorthand for determination of whether LM had capacity in the following domains: –

As I will explain below, there was a measure of agreement in relation to the issue of capacity. I was unable to give judgment at the conclusion of the hearing on 26 November 2025. This is my judgment on the issues which I had to decide.

References to the Act/sections are references to the Mental Capacity Act 2005 and sections in it. Reference to paragraph 15 is to paragraph 15 of Schedule A1 of the Act.

LM is represented by Mr O’Brien KC, and the ICB by Mr Brownhill. I am grateful to them for the assistance they have provided to me and the quality of their written and oral advocacy. Their written advocacy included position statements prepared in advance of the commencement of the hearing, and at my request written closing speaking notes.

I heard oral evidence from TW of Activation Therapy and Case Management, Dr Alisdair Radcliffe (Dr Radcliffe), the single joint expert appointed by my order dated 11 December 2024, and Dr L clinical psychologist employed by Placement 1, who had prepared a number of mental capacity assessments in respect of LM, in particular on 11 June 2024, on the issue of care and residence, and on 11 September 2025 on the matters which I have identified at [3.2] to [3.6].

LM is a 27-year-old male who was born on 30 May 1998. On 19 October 2013 he was involved in a road traffic accident and as a result he sustained a significant brain injury which affects most aspects of daily living.

The brain injury which LM sustained gives rise to a frontal lobe paradox (FLP). FLP is the discrepancy between an individual with frontal lobe damage performing well on cognitive tests and interviews, while struggling with everyday life. The frontal lobes are responsible for executive functions and damage can impair skills like planning and decision-making, even though the individual may be able to verbally describe what they should do.

Consequently, such an individual can be misjudged as being more capable than they are especially during formal assessments. Colloquially, FLP is manifested by an individual’s ability to “talk the talk” but not “walk the walk”.

In or around December 2020, LM moved to live at Placement 1. On 11 December 2024, and in the context of LM’s desire to live in a less restrictive environment, I approved LM’s move to a community placement at Placement 2 which was intended to be a trial for six months. Unfortunately, LM did not settle and following his move he presented as dysregulated and there were concerns by his clinical team for his safety. On 18 February 2025 LM was moved to Placement 1 without the court’s prior authorisation.

At this time there were concerns about LM’s relationship with a female, X, whom he had met on-line. The relationship ultimately ended. Subsequently and separately, LM disclosed he had been in a secret relationship with a member of Placement 1’s staff, Z, who was providing him with care. It is believed that these two relationships, described as potentially “toxic and abusive”, caused LM considerable stress and affected him greatly.

On 4 March 2025 I ordered that it was in LM’s best interests to live at Placement 1 until further order and, upon a standard authorisation being granted, these proceedings were to be reconstituted as an application under section 21A. A standard authorisation for Placement 1 was granted on 6 March 2025 which has been extended seven days after 26 November 2025.

LM is in receipt of Continuing Healthcare funding and the ICB is the responsible commissioner for his NHS care.

LM has issued a claim for compensation arising out his road traffic accident in 2013. I was not told the stage the claim had reached. TW, who was appointed LM’s case manager in 2018, co-ordinates LM’s care that is privately funded via interim payments made in connection with the accident claim, including a private MDT.

LM has a deputy appointed under section 16, who manages his financial affairs.

Prior to the hearing the parties agreed the following, based on Dr Radcliffe’s reports and Dr L’s assessments: -

Following the conclusion of the evidence, the parties agreed that I would not need to decide whether LM had capacity to use the Internet and social media, or have contact with others, and agreed that the only issues which I needed to decide were whether LM had capacity: -

I decide those issues on the balance of probabilities, and that the burden of proof in relation to capacity is on Mr Edwards, given that he disagrees with the evidence provided by Dr Radcliffe (section 1(4)).

These are agreed, and what I set out in this section is taken largely from the analysis set out in Mr O’Brien’s Position Statement. I have adopted some of the headings used by Mr O’Brien, in the interest of clarity.

The Act follows the common law in providing that each person is presumed to have capacity unless it is established that he lacks capacity (section 1(2)). A person is not to be treated as unable to make a decision merely because a person makes an unwise decision (section 1(4)). A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success (section 1(3)).

A person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to a matter because of an impairment of, or disturbance in, the functioning of the mind or brain (section 2(1)).  Thus, there must be a causative link between the impairment or disturbance in the functioning of the mind or brain and the inability to make the relevant decisions.  

The Act expressly recognises that capacity is decision specific given that: –

Lord Stephens made clear in A Local Authority v JB [2021] UKSC 52 at [66-67] that such determining capacity requires the court to address two questions

Section 3(4) provides that

“ The information relevant to a decision includes information about the reasonably foreseeable consequences of-

(a)

deciding one way or another, or

(b)

failing to make the decision.”

In the determination of the issue of capacity, no “gloss” is required when interpreting the provisions of the Act, the courts have warned about setting the bar too high, lest it operates as unfair, unnecessary and discriminatory bar against the mentally disabled; see Sheffield City Council v E [2004] EWHC 2808 at [144] per Munby J, as applied by Baker J. in PH v A Local Authority [2011] EWHC 1704.

The leading authority on conducting the proceedings is Masterman-Lister v Brutton & Co [2003] 3 All ER 162 wherein Chadwick LJ said:

“75.

For the purposes of Order 80 and now CPR Pt21 the test to be applied, as it seems to me, is whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require,the issues on which his consent or decision is likely to be necessary in the course of those proceedings. If he has capacity to understand that which he needs to understand in order to pursue or defend a claim, I can see no reason why the law whether substantive or procedural should require the interposition of a next friend or guardian ad litem (or, as such a person is now described in the CPR , a litigation friend).”

In Sheffield City Council v E [2005] Fam. 236, Munby J. said at [38] and[49]:

“38.

It is apparent from all this that the question of capacity to litigate is not something to be determined in the abstract. One has to focus on the particular piece of litigation in relation to which the issue arises. The question is always whether the litigant has capacity to litigate in relation to the particular proceedings in which he is involved.

49.

There is no principle, either of law or of medical science, which necessarily makes it impossible for somebody who has litigation capacity at the same time to lack subject-matter capacity. That said, however, it is much more difficult to imagine a case where someone has litigation capacity whilst liking subject-matter capacity than it is to imagine a case where someone has litigation capacity. Whilst it is not difficult to think of situations where someone has subject-matter capacity whilst liking litigation capacity, and such cases may not be that rare, I suspect the cases where someone has litigation capacity whilst liking subject-matter capacity are likely to be very much more infrequent, indeed pretty rare. Indeed, I would go so far as to say that only in unusual circumstances will it be possible to conclude that someone who lacks subject-matter capacity can nonetheless have litigation capacity”

Residence and Care

The approach to these decisions was for practitioners to have as a starting point, the guidance given by Theis J in LBX v K, L, M [2013] EWHC 3230 (Fam) at [43]).

In respect of residence, the relevant considerations are:

“(1)

what the two options are, including information about what they are, what sort of property they are and what sort of facilities they have; 

(2)

in broad terms, what sort of area the properties are in (and any specific known risks beyond the usual risks faced by people living in an area if any such specific risks exist); 

(3)

the difference between living somewhere and visiting it; 

(4)

what activities L would be able to do if he lived in each place; 

(5)

whether and how he would be able to see his family and friends if he lived in each place; 

(6)

in relation to the proposed placement, that he would need to pay money to live there, which would be dealt with by his appointee, that he would need to pay bills, which would be dealt with by his appointee, and that there is an agreement that he has to comply with the relevant lists of "dos” and "don'ts”, otherwise he will not be able to remain living at the placement; 

(7)

who he would be living with at each placement; 

(8)

what sort of care he would receive in each placement in broad terms, in other words, that he would receive similar support in the proposed placement to the support he currently receives, and any differences if he were to live at home…” 

Silo approach

The Court of Appeal in Re B v A Local Authority [2019] EWCA Civ 913 warned against assessing a person’s capacity in silos such that impracticable and inconsistent decisions on capacity were made.

In London Borough of Tower Hamlets v PB [2020] EWCOP 34the court underlined that the criteria by which capacity is evaluated on any particular issue should not be confined within artificial or conceptual silos. Theis J in A Local Authority v ZZ [2024] EWCOP 21 recently reaffirmed that such an approach can lead to errors.

TW made a written witness statement dated 18 November 2025. To my surprise, the trial timetable allowed time for TW to give evidence in chief. Mr O’Brien informed me that evidence in chief was required to address several matters, those being relevant to the issues for my determination being as follows: –

Mr O’Brien could not explain satisfactorily why these matters were not dealt with in TW’s written witness statement. They should have been, given that all these matters were probably within TW’s knowledge at the time he made his witness statement, and none arise out of developments since the making of the witness statement. Although the issue did not arise before me, a party who serves an incomplete witness statement runs the risk of the other party being prejudiced by being taken by surprise by additional evidence being given in chief, with a consequence of the inevitable adjournment. Perhaps practitioners could bear this in mind in the future.

TW’s witness statement was divided into three sections; “introduction”, “potential placements for LM and recent developments” , “LM’s capacity and needs particularly in the context of the use of social media” and “other domains”. With respect to TW, none of the contents of the witness statement were of assistance to me. The introductory section repeated much of the material contained in a position statement prepared by advocates for earlier hearings. The section concerning potential placements et cetera appeared to be evidence unnecessary for me to consider at this hearing. The section concerning LM’s capacity and needs and the section domains appeared to usurp the evidence provided by Dr Radcliffe and Dr L. TW’s evidence regarding use of social media is now no longer relevant.

TW told me had not seen LM for over a year and had not carried out any capacity assessment upon him. TW also told me that the triggers leading to LM’s dysregulation varied. He stated that LM misunderstood the intention of others and his reaction or response to information provided to him could at times be disproportionate. Furthermore, TW told me that LM was unable to measure his own interaction with others, would associate with individuals who did not have his best interests at heart, and failed to appreciate the risk to which that such individuals him. TW also explained that LM had difficulty understanding rules, for example if another resident was permitted to drink alcohol, LM could not understand why he was prevented from doing so. Importantly, TW told me that LM had told him that he wanted unrestricted access to the community.

When asked by Mr O’Brien as to the circumstances in which LM had absconded in the past, TW told me that the periods of absconding in varied, as did the reasons leading to LM absconding. A concern expressed by TW during these periods was that LM had access to drugs, principally cocaine, and also alcohol.

TW explained the failure of the placement at DG included LM’s relationship with Z. The structure at DG had allowed LM to make his own decisions, but he had been manipulated by Z. Furthermore, during his time at DG, LM had been allowed time in the community with boxing coaches, but he had ignored the instruction given to him, understandably given his acquired brain injury, not to take part in any boxing.

Mr Brownhill took TW to LM’s Care and Support Plan, last reviewed on 4 November 2025. TW agreed that LM tried to use coping strategies and to speak to members of his support team when he felt down and frustrated, such strategies involving walking and listening to music. TW agreed that the strategies allowed LM to reflect and to discuss issues with members of his team, but that without support and in novel situations, LM struggled, particularly when challenged or triggered by a range of factors. TW also agreed that this could lead to LM losing control, being aggressive, impulsive and behaving in a manner which put himself at risk.

Dr L had prepared Mental Capacity Assessments dated 11 September 2025, in respect of residence, care, contact with others, Internet and social media and sexual relations. Dr L had concluded that LM had capacity to make decisions about residence, the use of Internet and social media and engaging in sexual relations. He also concluded that LM lacks capacity to make decisions about care and support. When Dr L gave his evidence, he told me that he had no reason to change any of his conclusions in the assessment, although he informed me that he was no longer involved in LM’s case.

When questioned by Mr O’Brien, Dr L confirmed that the brain injury sustained by LM affected his executive functioning and his ability to weigh and use information at a time when LM had to make a decision. He agreed that “probing the veneer” was important having regard to the FLP, which was a significant aspect of LM’s presentation. For his part, Dr L confirmed that in discussions with LM, he would ask LM how he had come to a specific decision.

Mr O’Brien took Dr L to the Mental Capacity Assessment which he had prepared on 11 June 2024 (the June assessment). The June assessment was undertaken following a request made by LM’s MDT to review LM’s capacity to make decisions concerning his care and residence. Dr L told me that the assessment was undertaken in the context of LM moving from Placement 1 into a community-based placement, as part of his rehabilitation, and for a trial period of six months.

In the June assessment, Dr L had confirmed amongst other things that LM could understand information relevant to a decision concerning residence and care but required support to manage his care and accommodation. The assessment recorded that LM had “started to recognise a range of triggers can affect his decision making, including his needs being delayed, when facing interpersonal conflicts and when feeling overwhelmed emotionally”. Dr L told me that these triggers destabilised LM and that LM himself had recognised that the triggers led to his dysregulation.

The June assessment also confirmed that LM was unable to use or weigh information when making decisions relating to his care and accommodation needs. He recorded his view as follows: –

“this is an area where LM continues to struggle with due to difficulties related to his brain injury and in particular “dysexecutive syndrome”…… LM continues to struggle particularly with emotional lability, impulsivity and with problem solving ability. LM has become more concrete and self focused as a result of his brain injury, he has difficulty understanding the needs of others and with consequential thinking. The combination of these factors are imperative to understanding LM’s risk and decision making ability, in particular his ability to weigh up decisions related to his care and accommodation needs”.

When asked by Mr O’Brien about what he had recorded in the June assessment in this section, Dr L confirmed that he was focusing upon LM’s inability to weigh and use information.

In explaining his conclusions in the June assessment, Dr L told me that the question of care and residence were usually looked at together, and that Placement 1 had regarded care and accommodation to be inextricably linked. However, he told me that subsequently care and residence had been considered separately, but did not explain further.

In considering whether LM could regain capacity to make a decision concerning his residence and care, and whether not the decision could be delayed, Dr L had recorded the following: –

“cannot be delayed; predict likely to struggle to take full elements on board but expect some improvements over time and experiential learning. Not likely to be full capacity; likely ongoing dismissal of key detail, overestimation of skill and ability and inability to collate past, present and future together to inform decision-making”.

Mr O’Brien asked Dr L what he meant by “overestimation of skill”. Dr L explained that this related to LM’s lack of understanding of his needs in the community, and how he would suggest that he did not need either any care or support or alternatively a 24-hour 1:1 care package.

Mr O’Brien took Dr L to paragraph 10 of the witness statement of Claire Prichard made on behalf of ICB dated 21 February 2025. In it Ms Prichard recorded a comment made by Dr L namely “LM was able to reflect on a variety of difficulties in triggers he had been going through himself”. Dr L told me that the triggers included LM’s objection to the level of care and supervision to which he was subject, particularly in the context of his then relationship with Z.

Dr L had attended a Best Interests Meeting on 20 February 2025. The meeting was led by GH the unit manager at Placement 1. The context as GH recorded in the minutes was LM’s return to Placement 1 from DG, and the concern of the MDT that it would be unsafe for him to return there. The minutes record an Dr L’s comments as follows: –

“a pattern of increasing risk taking behaviour, impulsivity, absconding, emotional liability and suicidal ideation, leading to an increase in risk to LM, staff and the community due to absconding and the need to follow him…… LM’s engagement with his care plan has deteriorated significantly and no longer meets the criteria we would expect for a community-based client. [Dr L] feels that LM is becoming increasingly obsessed with a new relationship and is focusing all his attention on this as opposed to his rehabilitation”.

The minutes also record Dr L’s view that: –

“when in the community LM becomes isolated with less structure and this is to his detriment as he struggles to self-regulate. LM has progressed massively during his time at [Placement 1], and his last assessment in a community property is clearly showed that he struggles with this final step”.

When asked to explain what he meant by the final step, Dr L told me that this was LM’s move from Placement 1 to a community-based placement. He repeated that LM did not want any support in such placement, and how LM had become frustrated at the high levels of support proposed, given that such support had interfered with the relationship with the Z, which LM had wanted to continue. Dr L told me that at this time LM had been unable to cope in the community placement, and his mental health had declined because he was subject the restrictions required by his support package.

Mr O’Brien referred Dr L to his assessments of LM’s capacity regarding accommodation and care of 11 September 2025. Dr L maintained that in the interview he had conducted with LM for the purpose of the assessment, he had challenged LM robustly, particularly based upon events from January 2025 onwards.

Dr Radcliffe provided two written reports dated 14 April 2025 (the April report) and 30 June 2025 (the June report). In the April report, Dr Radcliffe concluded, amongst other things, that LM had capacity to make decisions regarding where he lives and to conduct that the proceedings but lacked capacity to make decisions regarding his support.

Dr Radcliffe based his opinion on LM having capacity to conduct proceedings and to make decisions regarding his residence on LM’s ability to understand retain and use relevant information, and his ability to communicate his decisions verbally. He maintained this view when Mr Brownhill asked him about LM’s capacity to make decisions about his accommodation.

The purpose of the June report was to take account of information provided to him by TW and LM’s mother, as he had spoken to neither when he prepared his April report. Its purpose was also to answer a number of questions put to him, including the extent to which Dr Radcliffe took into account the FLP when assessing LM’s capacity (in his oral evidence Dr Radcliffe admitted that he did not identify FLP in his April report by name, although his references to dysfunction referred to FLP), and to clarify his conclusions regarding LM’s capacity in relation to accommodation and care.

Dr Radcliffe told me that the interview with LM which formed the basis of his April report had been conducted over an eight-hour period in one day. Dr Radcliffe considered that LM had engaged well during the interview process.

In his oral evidence, Dr Radcliffe admitted that LM needed 24 hour 1:1 support. He agreed with Dr L’s assessment or evidence that LM had found the support package in place at Placement 2 too restrictive, and that LM had wanted the care package to be reduced. Dr Radcliffe also admitted that the reason why LM lacks capacity to make decisions about his care was because he was not able to use and weigh information regarding the extent of his support package, nor appreciate that he would be at risk if he went into the community without support, for example to meet a woman.

Mr O’Brien took Dr Radcliffe to [3.61] in his April report in which, and in response to Dr Radcliffe’s question to LM regarding what support he had needed, LM had stated “I don’t know, I don’t think so”. Dr Radcliffe acknowledged that LM needed support dependent upon his emotional state at the time. Dr Radcliffe maintained that he had probed LM regarding the type and make-up of the support provided, and how LM might react if support was not provided but needed by him.

Mr O’Brien put to Dr Radcliffe a not unrealistic scenario namely that LM would meet a girl, develop a relationship with her and want to live with her. Dr Radcliffe admitted that he had not discussed with LM what might happen in that scenario. He acknowledged that if LM decided to live with his girlfriend for five days a week the issue of care and accommodation were inseparable

Mr O’Brien asked Dr Radcliffe whether not in his opinion LM could live in a one-bedroom flat, given that the support LM needed required a larger accommodation, Dr Radcliffe suggested that LM did have capacity to decide to live in a one-bedroom flat. As regards how that might affect the support which LM needed, Dr Radcliffe told me that LM’s decision to live in a one-bedroom flat would depend what his support “looked like” and whether or not it could be delivered there. Dr Radcliffe also admitted that the type of accommodation in which LM would live would fall within the definition of “relevant information” within section 3.

Mr O’Brien asked Dr Radcliffe about LM’s relationship with Z, and events in and from January 2025. Dr Radcliffe admitted that he did not know of these before he had undertaken his assessment of LM, but discussed them with him. According to Dr Radcliffe, LM recognised the relationship with Z as being toxic. Dr Radcliffe described to Mr Brownhill the relationship between LM and Z was unusual and had a significant impact on all areas of LM’s life.

Dr Radcliffe maintained that he discussed events in and from January 2025 with LM, and was confident that he had discussed with LM the factors which had led to LM struggling with the care regime to which he was subject.

As regards LM’s capacity to conduct these proceedings, Dr Radcliffe recognised that this was a difficult area given that he had concluded that LM lacks capacity to make decisions regarding his care. He told me that despite his conclusion, he had left it to the court to decide whether LM had such capacity. Dr Radcliffe maintained that there was no evidence to overturn the presumption of capacity, unless the decision in question related to an issue to be decided.

Mr Brownhill took Dr Radcliffe to his second report and his analysis regarding the interrelationship between capacity in relation to residence and care. Dr Radcliffe acknowledged that in some cases the two issues were inextricably linked, and the concern which had been expressed about his linking those decisions on the facts of this case. However, he said that it would be better to look at these issues when there were concrete examples or options available for LM’s accommodation.

Mr Brownhill began his submissions by referring me to paragraph 15. He conceded that given that LM was in a care home receiving care that the qualifying requirement was met. Having regard to his concession, and in response to a question from me, Mr Brownhill agreed that the evidence that had been provided to me under section 21A, could potentially be used as part of my consideration of whether to make an order under section 16. However, and for the reasons set out in paragraph 11 of his closing note, he submitted I should go no further, given the observations made in atin DP v London Borough of Hillingdon (Rev 1) [2020] EWCOP 45 at [35] namely: –

“The Court's approach to a Section 21A application is different to and distinct from its role in a standard welfare application. The Section 21A application is either to vary or to discharge a Deprivation of Liberty authorisation. In such applications, the task of the court is to evaluate the relevant qualifying requirements and to come to a view, on the available evidence, as to whether those requirements continue to be met”.

On the basis that I was minded going beyond the section 21A application, Mr Brownhill reminded me that Mr Edwards bore the burden of proof of satisfying me on the balance of probabilities on the issues for my determination. He also reminded me of TW’s evidence, namely that he had not undertaken any capacity assessments on LM, he had not seen LM the over a year. Mr Brownhill described the tenor of TW’s evidence as being protective towards LM, which was not a factor for my consideration on deciding issues of capacity.

Mr Brownhill referred me to the evidence of Dr L and Dr Radcliffe both of whom had concluded that LM had capacity to make decisions in relation to his residence. Having regard to such evidence, Mr Brownhill submitted that I had to decide the legal question of whether in the circumstances the issue of capacity in respect of residence and capacity in respect of care and support were inextricably linked.

Mr Brownhill submitted that no options been identified for LM’s residence. He referred me to LBX and the question in that case of whether there was any link between the domain in respect of residence and the domain in respect of care and support. According to Mr Brownhill, on the facts before me, those domains were not inextricably linked. I raised with Mr Brownhill the hypothetical scenario which Mr O’Brien had put to Dr Radcliffe during his cross-examination, namely LM leaving his placement and moving to a one-bedroom flat to live with a girlfriend. Mr Brownhill submitted that that scenario was not relevant to the question of capacity in respect of residence, but to the deliverability of care in such accommodation.

Mr Brownhill referred to the approach of considering questions of capacity by reference to self-contained silos he. He submitted that such an approach was consistent with the principles of the Act, which was decision specific. He also directed me to the fact that both Dr Radcliffe and Dr L had approached the question of capacity in accordance with the guidance in LBX. Mr Brownhill also relied uponthe decision of the Senior Judge in London Borough of Tower Hamlets v A & Anor [2020] EWCOP 21. In response to my question to Mr Brownhill, he confirmed that both LBX and London Borough of Tower Hamlets v A involved proceedings under section 21A.

In concluding his submissions Mr Brownhill submitted that given that there were no available options for LM’s residence at present, I should not make a declaration that LM lacks capacity in respect of residence. However, should I reach that conclusion, Mr Brownhill submitted that what I should do is give further case management directions, the terms of which had been discussed with Mr O’Brien. Those directions included a direction that that LM’s financial deputy provide evidence about the type of accommodation LM would be able to fund, and that the application be listed for a further hearing, at which, and depending on the residence options that were available, I could retain the case management of the application or alternatively transfer it to the South East Hub for further directions.

Mr O’Brien commenced his submissions by referring to the agreement that the parties had reached, reminding me that such agreements did not bind me. He also reminded me that Dr Radcliffe had provided evidence by way of advice and no more, and ultimately it was for court to decide on the issues.

Although following the evidence which I had heard, Mr Edwards did not invite me to make a declaration under section 15 that LM lacks capacity to make decisions on access to social media and the Internet, Mr O’Brien submitted that there was no doubt that LM was vulnerable when he accessed social media and the Internet, how restricting or removing LM’s access to social media and the Internet would cause LM problems (Mr O’Brien described these as disastrous consequences), agreeing with my description of social media and the Internet as being LM’s “window to the world”.

Concerning LM’s contact with others, Mr O’Brien submitted that the evidence was consistent with LM being vulnerable, given his inability to use or weigh information in making any decision. Nevertheless, Mr O’Brien submitted that LM’s autonomy should be respected when it came to for example making decisions concerning contact with his parents, other relatives or professionals. However, there was concern of a risk to LM when he was in contact with those who had bad intentions and sought to prey on LM’s vulnerability. However, even in that setting, Mr O’Brien submitted that LM should retain his autonomy until it became apparent that he was exposed to a serious risk.

As he had outlined in his closing note at [8] and [9], Mr O’Brien therefore submitted that both in relation to contact with others and access social media and the Internet, the provisions of section 5 could be deployed, for the reasons which he explained. In those circumstances Mr Edwards did not require me to make any positive declarations regarding LM’s capacity in accessing social media and the Internet, leaving “the presumption of capacity standing”.

As regards the issue of litigation capacity, Mr O’Brien submitted that he found the evidence of Dr Radcliffe difficult to understand. He referred me to [49] in Sheffield City Council v E and S, which I have set out in the section Relevant Legal Principles. Mr O’Brien submitted, that given the fact that LM’s case was not one of the rare type of cases identified, I should conclude that LM lacks litigation capacity.

Mr O’Brien agreed with Mr Brownhill’s analysis that the mental capacity requirement at paragraph 15 was satisfied. However, he disagreed that the issues for my determination were only within the context of such an application, and that, as Mr Brownhill had submitted, it was not open to me to make a declaration under section 15.

Mr O’Brien relied upon the fact that Dr Radcliffe had never been asked to consider if the issue under paragraph 15 differed from the question of LM’s capacity to make decisions in relation to accommodation and care, nor had this distinction been drawn in any of the case management orders which I had made. Moreover, he submitted that at no stage had it been suggested either that the application was only about either paragraph 15 or section 15 declarations, or that it was not open to me to make the latter declarations in the circumstances.

In developing that point, Mr Brownhill referred me to my order of 1 August 2025 at paragraph 2 (e) and (h), which provided that ICB should provide evidence of any available and suitable alternative placements for LM, such alternatives to: –

“anticipate the two alternate decisions the court may make on LM’s capacity (i) to decide for himself where to live whereas a best interest decision will be required in relation to his care, or (ii) LM lacks capacity to make decisions about his residence and care and a best interest decision will be required for both.”

Furthermore, Mr O’Brien relied upon the fact that neither the ICB nor Dr Radcliffe had suggested any further capacity assessment would be required for LM, following my determination in accordance with the terms of the order of 1 August 2025. The reason for this was, according to Mr O’Brien that when LM leaves Placement 1 and moves into the community it will be with, as everyone involved in the case acknowledges, with 24-hour 1:1 support. Mr O’Brien described this as the core issue.

Mr O’Brien submitted that LM lacks capacity to make decisions about his accommodation because he was not able to use or weigh information concerning his need for such support. Mr O’Brien again referred to my order of 1 August 2025 and the following recordings: –

“(a)

LM continues to live and receive care at [Placement 1] however he now wishes to live in a less restrictive placement

(b)

the ICB continues to search for an alternative placements LM and has identified potential options, including three supported living placements which require further exploration and care planning”.

In those circumstances, Mr O’Brien referred to the fact that the litigation had been pursued on the basis that LM’s stay at Placement 1 would end at some stage, and he would move to another placement which served his best interest. Mr O’Brien informed me that the core issue was important given the fact that LM had told Dr Radcliffe that he did not need 24-hour 1:1 support. The consequence of that was that if LM was free to decide where he lived, he could thereby reject the care package that was to be made available to him and considered to be in his best interests.

I asked Mr O’Brien whether in the circumstances I was being asked to make a declaration in a vacuum, given that no accommodation options had been identified. Mr O’Brien informed me that that was not the case. I asked as an alternative whether I could declare that LM lacks capacity to make decisions about his accommodation to the extent that such accommodation prevented the delivery of the support which LM needed. Mr O’Brien informed me that it would be open to me to make such a declaration, although he thought that over complicated matters and that he would need to consider how best such a declaration could be formulated. In the event, both he and Mr Brownhill subsequently informed me that if I concluded that LM lacked capacity, I should limit my declaration to that.

In any event Mr O’Brien referred me to the difficulties which might arise absent a declaration that LM lacks capacity to make decisions about his residence, not least because of what had been said on ICB’s behalf at an early stage in the proceedings, namely the facts and matters set out at paragraph 6 of the first witness statement of Ruth Eldridge dated 30 October 2024 as follows: –

“[Placement 1] have advised that they are unwilling to support LM without a legal framework if the capacity undertaken by Soline Jerram…. on 18 August 2024 indicates LM has capacity.[Placement 1] have assessed LM’s capacity several times and feels he lacks capacity. They will not support without a legal framework due to LM’s historic behaviour and a sense of agreeing to certain things yet when they are put in place will change his mind.”

Accordingly, Mr O’Brien submitted that the starting point was that on the facts of this case the issue of residence and care were linked. Mr O’Brien informed me that Mr Brownhill submissions that the issues had to be “inextricably linked” was not supported by authority. Mr O’Brien reminded me however that I should approach matters based upon the dicta in PC v York City Council [2013] EWCA Civ 478 at [ 35], namely that the determination of capacity is issue specific.

Mr O’Brien referred me to TW’s evidence, with which he submitted Dr Radcliffe and Dr L had agreed, namely that LM needed 24-hour 1:1 support, he had rejected it in the past and told Dr Radcliffe that he did not need it. Mr O’Brien submitted that the options for LM’s residence would include the support which LM needed, and that given that the options for residence were limited by the care options, I should conclude that LM lacks capacity to make decisions in relation to his residence, given he lacks capacity to make decisions about his care. Absent such a declaration, Mr O’Brien reminded me that LM would be free to decide where he lived, on the size of the accommodation, with whom he lived et cetera.

In the alternative, and for the reasons set out at [22] of his closing note, the problem which might arise if I was satisfied that LM had capacity to decide where he lived, LM could decide to move outside the care sector. He asked whether not in the circumstances, given the level of support which LM needed, how if at all I could authorise LM’s deprivation of liberty in the community. To that end, Mr O’Brien submitted that there was a strong argument that the objective test in Cheshire West would not be met.

Mr O’Brien concluded his submissions by informing me that he did not intend to undertake a forensic analysis of the evidence of Dr Radcliffe, save to identify the fact that Dr Radcliffe had failed to undertake a robust analysis about what LM had told him against the background of events from January 2025 onwards. To that end, Mr O’Brien referred me to the decision of Cobb J (as he then was) in Calderdale Metropolitan Borough Council v LS [2025] EWCOP 10 (T3) in which the judge criticised the failure by the medical expert to carry out the capacity assessment with at [85] “the sort of rigour to which the court of protection is accustomed”, and at [86] “a greater discussion in the analysis section…..of the wider canvas of the current available evidence”.

Mr O’Brien also referred me to the reference in Calderdale v LS to the decision of Knowles J in Re DY [2024] EWCOP 4 at [47], in which she observed: –

“it would be beneficial if the expert capacity assessors ensure that as a matter of routine they crosscheck their conclusions by looking at the wider canvas about how a person functioned and, if possible, by speaking to those who knew the person being assessed well. This is of particular importance when their conclusions may be at variance with the previous capacity assessments”.

I will address first whether my decision should be confined to the application under section 21A, and then consider LM’s capacity to conduct these proceedings and to decide where he lives.

I am not persuaded by Mr Brownhill’s submission that my role is limited to confirming the qualifying requirements under paragraph 15. The passage in DP v London Borough of Hillingdon upon which he relies is obiter and concerned a different context, the interplay between section 48 and section 21A.

Whether I make declarations under section 15 is a matter of case management. Exercising those powers in accordance with the overriding objective (CoPR 1.1 and 1.2), I conclude that it would be unfair to LM and contrary to efficient case management to defer such declarations. Addressing them now promotes expedition, saves expense, avoids unnecessary future hearings, and it would ensure that LM’s interests and position were properly considered. I also bear in mind that during his submissions Mr Brownhill did not suggest that it would be unfair to ICB if I were to make a declaration under section 16.

In determining capacity, I have applied the principles in PC v York City Council: the assessment is issue-specific and must focus on LM’s ability to make the particular decision. I have also borne in mind the guidance in London Borough of Tower Hamlets v PB [2020] EWCOP 34 that capacity should not be assessed within rigid silos but in a way that reflects the realities of the case.

On the evidence, I am satisfied that LM lacks litigation capacity. One of the central issues in these proceedings is LM’s care, and it is agreed that he lacks capacity to make decisions about his care and support. Applying Sheffield City Council v E, it is highly unusual for a person to lack subject-matter capacity yet retain litigation capacity. This case does not fall within that rare category. LM’s inability to use and weigh information about his care needs, particularly his requirement for 24-hour 1:1 support, undermines his ability to understand and make decisions necessary for the conduct of these proceedings

As to residence, I find that LM also lacks capacity to decide where his residence. Although Dr L and Dr Radcliffe concluded otherwise, I cannot accept their analysis. On the facts of this case, care and accommodation are so closely connected that they cannot realistically be separated. LM’s inability to appreciate his need for intensive support directly affects his ability to make a meaningful decision about accommodation. The level of care he requires dictates the type of accommodation available. LM has repeatedly asserted that he does not need support, a belief that illustrates his inability to understand the foreseeable consequences of rejecting care. That failure goes to the heart of his decision-making about residence.

I have considered Dr Radcliffe’s reliance on London Borough of Tower Hamlets v A, at 4.26 in his June report, but that case turned on different facts. HHJ Hilder’s observation at [65] that residence and care can be assessed separately presupposed that the individual had a broad understanding of the care available in each option. LM does not. His rejection of care, despite universal professional agreement that he needs it, and the consequences of operating without support, dysregulation and risk, demonstrate that he cannot weigh the relevant information.

I acknowledge the professionalism and detail in Dr Radcliffe’s reports. However, as Mr O’Brien submitted, his analysis of events from January 2025 onwards lacked the rigour required by the authorities. That was best demonstrated during the cross-examination of Dr Radcliffe on the contents of [3.61] in his April report. I was not referred to any other passages in either the April report of the June report which would equate to the rigour which is required. The failure to probe LM’s assumptions about care undermines the reliability of his conclusion, even allowing for Dr L’s similar view.

For these reasons, I conclude that LM lacks capacity both to conduct these proceedings and to decide where he lives