SJ v Cardiff & Vale University Health Board & Anor

I am concerned with an application made in respect of Ms SJ. In accordance with her preference and the approach adopted during the final hearing, I shall refer to SJ throughout this judgment by her first name.

The proceedings commenced life as a s.21A Mental Capacity Act (“MCA”) 2005 challenge to a standard authorisation granted by C and Vale University Health Board (“the Health Board”) dated 6^th October 2022, at which point SJ was deprived of her liberty at X Hospital. The proceedings have since been reconstituted as a section 16 MCA 2005 welfare application further to SJ’s move to a supported living placement in December 2023.

The respondents to the application are the Health Board and the Vale of Glamorgan Council (“the Local Authority”).

The court is asked to determine a range of issues at this final hearing, including:

The court is also invited by SJ’s legal representatives to consider the question of her capacity to conduct these proceedings. By an order dated 17^th November 2023, the court declared that SJ had litigation capacity, and she has proceeded without a litigation friend since this time. This declaration is consistent with the unanimous professional evidence before the court both then and now. As shall be explored, an unusual feature of this case is that the professional evidence is equally unanimous in concluding that SJ lacks capacity to make decisions in respect of her care, residence, and diabetes management – i.e, it is said that SJ has capacity to conduct litigation about matters that she lacks capacity to determine herself.

The proceedings have been the subject of some delay. The final hearing was heard on the 10^th and 11^th November 2025, two weeks prior to the third anniversary of the application. It follows that there exists a significant procedural history. This being the first time that I have had conduct of the case, I record my gratitude to counsel for their detailed position statements and assistance in identifying the relevant documentation for the court to consider.

I record that this judgment was circulated in draft on 19^th December 2025 in advance of a formal handing down listed to take place on 22^nd December 2025.

SJ was born in 1960 and is 65 years old. She is a transgender woman who began her transition in 2007 and is currently awaiting gender reassignment surgery. She has several physical and mental health conditions, including paranoid schizophrenia, gender dysphoria, Type 1 diabetes, chronic obstructive pulmonary disease, prostatic disease, peripheral neuropathy, and dyslexia with some associated learning disabilities. I note that SJ has always disputed the diagnosis of schizophrenia, but told me in evidence that she accepts it “if the doctors are saying that I have it”. She is prescribed a wide range of medication and has been insulin-dependent since 2006 to manage her diabetes.

SJ has two adult children from a previous marriage, K and M. She regularly sees both them and her father, who lives locally but is sadly suffering from ill health. Since June 2010, SJ has rented a two-bedroom house from a housing association in the Vale of Glamorgan (“Y Home”). This was SJ’s family home, where she lived with her ex-wife, K, and M. SJ told me how she is house-proud and a keen gardener.

Whilst at home, SJ received support from her children, domiciliary care, and community mental health services. She was admitted to hospital on several occasions because of uncontrolled diabetes and both forms of acute complication, namely hypoglycaemia and ketoacidosis. It is recorded that on one occasion, it was thought she would die given the severity of her ketoacidosis and the associated multiple organ failure induced by sepsis.

Prior to 2006, SJ enjoyed a varied and active working life. She has worked as a labourer, in a garden centre, as a painter, and had commenced training to be an auxiliary nurse prior to her dyslexia becoming a challenge to qualification. SJ left employment in 2006 due to ill health and has not worked since. Previously, SJ has enjoyed practicing Tai Chi, astronomy, and photography. These days, her hobbies include singing in a local gospel choir, watching Christmas movies, and cooking for other residents in her supported living placement. She is plainly a lively and sociable character who is thought of fondly by her carers. SJ holds those who support her in similarly high regard.

SJ has been assessed to lack capacity to manage her finances and has a Deputy for property and financial affairs.

In January 2021, SJ was treated in intensive care, having been found unresponsive at home following a bout of hyperglycaemia. Following that admission, SJ was initially detained under s.2 Mental Health Act (“MHA”) 1983 in X Hospital, where she remained first as an informal patient, then under s.3 MHA 1983 (November 2021 to March 2022), and then pursuant to a Deprivation of Liberty Safeguards (“DoLS”) standard authorisation first granted in July 2022.

SJ has always been clear that she would like to return to home to Y Home with a package of care and support. On 28^th November 2022, proceedings were commenced on her behalf pursuant to s.21A MCA 2005.

As shall be detailed below, the proceedings have seen multiple assessments of SJ’s capacity and whether it would be viable for her to return home, even on a limited trial basis. The Health Board, supported by the Local Authority, raises significant concerns about SJ’s ability manage her diabetes independently in the community. As an interim position, the Health Board identified a supported living placement, Z Placement, with care provided by H Care Agency.

On 19^th December 2023, the court authorised a move for SJ to live at Z Placement, where she has remained to date. The court authorised SJ’s deprivation of liberty at Z Placement pursuant to s.4A(3) and s.16(2)(a) MCA 2005.

It is noted that the Health Board and the Local Authority are jointly responsible for commissioning SJ’s care and support on account of her being eligible for mental health aftercare pursuant to s.117 MHA 1983. The Health Board has taken the lead in this respect.

Aside from the issue of diabetes management, SJ has modest care and support needs. She is independently mobile, self-caring with personal care, and can make her needs known. She requires prompting with medication.

SJ has a form of diabetes that is akin to type 1 diabetes, in that she is prone to ketoacidosis if she does not take insulin regularly or if the insulin she takes is inadequate to control her blood sugar levels. SJ’s individual diabetes management aims to support her self-administering her own diabetes medication. Some of the core components of the plan are as follows:

In terms of blood glucose monitoring, SJ uses a Dexcom G7 sensor and alarm system. This delivers real-time glucose readings sent automatically to an app on SJ’s phone. The system provides an alarm and prompt to SJ if her blood glucose sugars are too high or low. If her glucose levels are above 18mmol, she is advised to check her capillary blood glucose levels via a finger prick test, as this is deemed to be more accurate than the Dexcom 7.

Prior January 2021, SJ had been admitted to hospital on account of her diabetes approximately 60 times in the preceding five years as a result of both “life threateningly severe” hypoglycaemia and diabetic ketoacidosis. Since moving to Z Placement, SJ has required attendance at hospital just once.

Whilst this indicates that her diabetes is now much better controlled, difficulties remain and SJ continues to have issues with both high glucose levels and sudden drops. This has resulted in additional unscheduled district nurse calls (including seven additional calls over one four-day period in September) and active staff intervention to ensure SJ’s safety. By way of example, on 5^th November 2025, just days before the start of the final hearing, SJ was found by staff at Z Placement to be disorientated, shaking, and confused with her Dexcom signalling a low reading (2.0mmol). SJ required significant assistance and support to administer glucose gel. It is said that SJ’s confusion was such that she would have been incapable of rectifying matters alone.

SJ’s capacity has been the subject of many assessments and much discussion. Whilst I shall focus on the substance of the more recent reports in due course, I note the following chronology in summary for context:

SJ’s primary case is that she has capacity to make decisions in respect of her diabetes management, care and support, and residence. She argues that the support that might be provided to her, in the form of prompting from others and the proposed diabetes management plan, amounts to providing practical steps for the purpose of s.1(3) MCA 2005.

Notwithstanding the above, SJ’s representatives, led by Mr. Rhys Hadden of Counsel, invited the court to consider the question of her capacity to conduct litigation. Mr. Hadden put this in terms of it being a professional obligation for a legal representative to raise doubts about capacity with the court, and the need to keep the question under constant review. Without specifically submitting that the court should determine that SJ lacked litigation capacity, Mr. Hadden pointed to the totality of the capacity evidence and the conceptual difficulties that it presents. In doing so, I note that Mr. Hadden and his instructing solicitor Miss Newport were doing their best to balance their competing duties to both SJ and the court in the unusual circumstances of the case.

If the court concludes that SJ lacks capacity to make decisions about her residence, care, and diabetes management, it is submitted on her behalf that it would be in her best interests to attempt a trial at home with the support identified within her tailored diabetes management plan. It is accepted that the only other alternative option is that SJ continues to reside at Z Placement.

The Health Board and the Local Authority presented a unified position. Both support the conclusions of Dr. Radcliffe and Dr. KR that SJ lacks capacity to make decisions about residence, care, and diabetes management. Neither invited the court to go behind the assessment that SJ has capacity to litigate the proceedings.

In terms of best interests, the Health Board and the Local Authority each say that even a trial at home is too much of a risk to SJ’s safety given the brittle nature of her diabetes and her inability to manage this independently for even limited periods of time. The rapid onset of life-threatening consequences put SJ’s case into a category quite distinct from other cases where a trial might be pursued.

If the court concludes that SJ lacks subject matter capacity and considers that it is in her best interests to remain at Z Placement, all parties agree that SJ will be deprived of her liberty by the arrangements in place and will need the court's authorisation for the same.

Sections 1, 2 and 3 MCA 2005 are all relevant to my decision. As the starting point, a person must be assumed to have capacity unless it is established that they lack capacity: s.1(2) MCA 2005. It follows that those asserting that a person lacks capacity bear the burden of establishing it.

Two other principles underpin the determination of capacity:

The “single test” of capacity is set out in s.2(1) MCA 2005:

Any question whether a person lacks capacity must be decided on the balance of probabilities: s.2(4) MCA 2005.

Section 3(1) MCA 2005 provides that for the purpose of section 2, a person is unable to make a decision for himself if he is unable -

Several authorities set out general observations to which the court ought to have regard when considering the issue of a person’s capacity to make particular decisions, including PH v A Local Authority [2011] EWHC 1704 (Fam) and North Bristol HS Trust v R [2023] EWCOP 5. These include:

In A Local Authority v JB [2021] UKSC 52, the Supreme Court held at [61] that the MCA 2005 applies a ‘functional’ approach to capacity by focussing on the personal ability of the person to make a particular decision. At [63]-[79], the Supreme Court clarified the correct ordering of the capacity test. The court must start with the question of whether the person is functionally capable or incapable of understanding, retaining, using and weighing the relevant information and communicating their decision before going on to consider the diagnostic component of whether there is an impairment or disturbance in the functioning of the mind or brain.

In summary, there are three elements to be considered in the following order when determining a question of capacity:

In the comprehensive appendix to his position statement, entitled ‘Statement of Legal Principles’, Mr. Hadden drew my attention to several cases in which the court has identified lists or guidance of the s.3(1)(a) MCA 2005 ‘relevant information’ that may be applicable when assessing capacity in relation to different areas. For fear of this judgment becoming unwieldly, I do not intend to recite the guidance and lists in this judgment. However, I record that I have considered the following:

The leading authority on capacity to conduct proceedings is Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889 (cited with approval by the Supreme Court in Dunhill v Burgin (Nos 1 AND 2) [2014] UKSC 18. The test is whether the party is capable of understanding, with the assistance of such proper explanation from legal advisors and experts in other disciplines as the case may require, the issues on which the consent or decision is likely to be necessary during the proceedings. This requires the ability to recognise a problem, obtain and receive, understand relevant information, including advice; the ability to weigh the information (including that derived from advice) in the balance in reaching a decision, and the ability to communicate that decision.

Understanding the nature of the dispute is not the only component of the relevant subject matter when determining whether a litigant has capacity to conduct legal proceedings. The nature of legal proceedings, and in particular, the specific demands they may make on litigants in the context of evolving and dynamic proceedings, also needs to be considered. In TB v KB and LH (Capacity to Conduct Proceedings) [2019] EWCOP 14, MacDonald J held [29]:

“...[legal proceedings are] not being simply a question of providing instruction to a lawyer and then sitting back and observing the litigation, but rather a dynamic transactional process, both prior to and in court, with information to be recalled, instructions to be given, advice to be received and decisions to be taken, potentially on a number of occasions over the span of the proceedings as they develop.”

The capacity to conduct proceedings is a distinct question to a person’s capacity to make decisions about the subject matter of the proceedings. It is not impossible for a person to lack capacity to make a decision, but to have capacity to conduct proceedings about that issue, though it is highly unusual. In Sheffield City Council v (1) E (2) S [2004] EWHC (Fam), in which Munby J observed at [49]:

“There is no principle either of law or of medical science, which necessarily makes it impossible for someone 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 lacking subject-matter capacity than it is to imagine a case where someone has subject-matter capacity whilst lacking litigation capacity... I suspect that cases where someone has litigation capacity whilst lacking subject-matter capacity are likely to be very much more infrequent, indeed pretty rare. Indeed, I would go as 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.”

In Lancashire and South Cumbria NHS Foundation Trust v Q [2022] EWCOP 6, Hayden J further identified at [24] that:

“... it follows that the issue of litigation will always fall to be determined in the context of the particular proceedings.... None of this requires P to instruct his advisers in a particular way. Like any other litigant, in any sphere of law, he may instruct his lawyers in a way which might, objectively assessed, be regarded as contrary to the weight of the evidence.”

I also note the observations of Mostyn J in An NHS Trust v P[2021] EWCOP 27 that “it is virtually impossible to conceive of circumstances where someone lacks capacity to make a decision about medical treatment, but yet has capacity to make decisions about the manifold steps or stances needed to be addressed in litigation about that very same matter.” In Lancashire v Q (above), Hayden J cautioned this statement in the following terms [22]:

“I have little doubt that an individual who lacks capacity to decide about medicaltreatment will frequently lack the capacity to litigate in a case where that is the sole or predominant subject matter. I have equally no doubt, however, that the proposition is not ubiquitous, in the sense that the two tests should be regarded as synonymous.”

The court must determine SJ’s current capacity to make decisions in respect of the domains in question. As such, the most recent expert assessments are of central importance and I do not intend to consider at length the reports prepared earlier in time.

Dr. KR is a consultant psychiatrist and SJ’s treating clinician within the Vale locality mental health team. In his s.49 MCA 2005 report dated 16^th June 2025, he sets out SJ’s diagnosis of schizophrenia and notes that she is currently suffering from an increase in both her positive (delusional beliefs) and negative (avolition) symptoms of the condition. He states that SJ’s treatment has been optimised for around three to four years, and there is no prospect of improvement of her psychotic symptoms, even if they may change gradually in nature.

Dr. KR’s report details his conversations with SJ during interview on 11^th June 2025. He considered that SJ presented a number of “delusional ideas about her diabetes”, for example that it would only decompensate because of the nature of its severity and not due to failure to follow correct monitoring or treatment. Dr. KR records that SJ maintained that she had never required a hospital admission for decompensated diabetes at any point, either for hypoglycaemia or ketoacidosis, justifying her past admissions to hospital as being solely due to respiratory problems.

Dr. KR considered that SJ was able to demonstrate a good basic lay understanding of diabetes, the medical reasons that can lead to hypoglycaemia and ketoacidosis if not treated correctly, and the rationale for the different treatment steps for both hypo and hyperglycaemia. However, Dr. KR states that SJ was unable to recall her insulin medication, confusing it with a drug prescribed previously. She also requited direction and prompting to answer questions about the steps that it is necessary to take if she had hyperglycaemia, and when it might be necessary to ring 999. SJ dismissed this as a minor lapse in memory that would have no implication on her ability to manage her diabetes independently. Dr. KR records that SJ considered the risk of harm “would be completely mitigated by her self-perceived excellent and error free skills in managing her diabetes monitoring and treatment.”

In respect of her need for urgent treatment, SJ stated that she would not accept a general hospital admission regardless of whether this was in the emergency plan or not. SJ indicated that she was aware that such refusal might result in death, but considered that she had suffered bullying when admitted to hospital in 2021 for being a trans woman. Dr. KR notes that SJ’s “ideas in reference to being bullied while in the X Hospital have been well documented in the past as delusional ideas of persecution, and therefore as being psychotic in nature, and she has never had any insight into them. This continues to be the case.”

Dr. KR cited other examples of SJ exhibiting paranoid and persecutory interpretations, including that she was disliked by the District Nurses, who were deliberately punishing her by stating that SJ appeared unable to follow her treatment plan without supervision. In Dr. KR’s view, “this was again evidence that she was unable to retain the information necessary to learn from her own experience when faced with situations where she was not able to administer her own treatment correctly, and therefore increase substantially the likelihood of these mistakes happening in the future again as she would not be able to use this crucial information with good effect.”

A further example of a delusional idea was identified when considering the domain of care and residence, specifically that SJ had developed a ‘new’ idea of persecution in becoming convinced that a man (by the name of AB) had been living in her home and using her belongings. The foundation for SJ’s belief is correspondence in AB’s name being found delivered to the house. Dr. KR records that SJ was unable to accept the most likely explanation that the correspondence had been sent in error, there being no other evidence or reason to believe that a person was living in the house.

Dr. KR records that SJ made clear that she did not need any support to return home and live independently, whether generally or with her diabetes treatment, leading to the conclusion that SJ was not able to recall or use any information that substantiates the rationale for the support and treatment plans devised.

The report concludes that SJ lacks the capacity to make decisions about her diabetes management, her general care, and residence. Dr. KR considers that SJ’s lack of capacity has become more pronounced in recent times, given the development of new delusional ideas about having never been admitted to hospital due to decompensated diabetes “demonstrating that she is even more unable to retain crucial necessary information to be used to manage her diabetes treatment safely and appropriately.” He describes SJ as having a “chronic cognitive inability to register, retain, and therefore use crucial information”, including information based on her own lived experience. Dr. KR considered this to be a direct result of SJ’s enduring schizophrenia and the mix of both positive and negative psychotic symptoms.

Dr. KR did not deviate from these conclusions when giving oral evidence. He considered that the prompting that SJ required from her carers to manage her diabetes was not a ‘practical step’ to assist her make a capacitous decision for the purpose of s.1(3) MCA 2005, but rather out of necessity to keep her well and not a question of her gaining sufficient understanding to act herself. Whilst Dr. KR had not set out the ‘relevant information’ to which he had regard and was unfamiliar with the checklists and guidance identified within the case law, he was able identify the type of points that needed to be addressed. He considered it crucial that SJ’s delusional beliefs and avolition were viewed to be operating in conjunction with one another. Dr. KR confirmed that SJ had capacity to choose between different options for her residence, provided that the options had been assessed as being able to meet her support needs.

Although he had not specifically reported on it, Dr. KR was asked whether he considered that SJ had capacity to conduct the proceedings. He confirmed that he did, in line with both Dr. LT’s original s.49 report (for which he had oversight) and the more recent conclusions of Dr. Radcliffe.

Dr. KR considered there to be two points to bear in mind. First, SJ’s delusional beliefs had never extended to matters of court – whether her legal team or the proceedings more generally. This was in marked contrast to her persecutory ideas surrounding her hospital admissions, doctors, and medical treatment. In Dr. KR’s view, the absence of the delusional beliefs meant that SJ had never been ‘blocked’ from engaging in this area. Second, the negative symptoms of SJ’s schizophrenia, namely her avolition and lack of motivation, were capable of being adequately mitigated by the assistance and input of her legal team, in a way that did not apply to health care professionals and SJ’s diabetes management.

Ultimately, he considered that SJ can “understand the court proceedings, what they are for, and what the possible outcomes are, how to engage in the process, the roles of different professionals – even though she disagrees on what has been decided. She understands how proceedings function and how to go about them and engage in them.” When pushed on how SJ was able to give instructions and understand advice about things that directly related to the delusional beliefs that he had identified regarding her diabetes and care, Dr. KR considered it important to consider the ‘themes’ of the delusional beliefs and the precise area that they touched on. In his view “simply because a person possesses a delusional belief in respect of one area of their life, it does not mean that they lack capacity in another area.”

Dr. Radcliffe’s most recent assessment is dated 31^st August 2025. His report contains a detailed account of the interview that he conducted with SJ, which I found tremendously helpful. Dr. Radcliffe concurs with Dr. KR’s findings that SJ has exhibited a recent intensification in both her positive and negative symptoms of schizophrenia, and that this reflects the main difficulty that she experiences. This sits alongside an increase in concerns regarding SJ’s diabetes management and ability to maintain her targeted blood glucose levels.

In terms of SJ’s delusional thoughts, Dr. Radcliffe noted similar examples as Dr. KR, including beliefs regarding her diabetes, the causes and reasons for decompensation, and her past hospitalisation. Dr. Radcliffe also considered SJ’s avolition to be increased, describing how she failed to consume any liquid throughout the assessment despite being reminded to do so and acknowledging that this was something that she had to do in response to the high blood glucose reading indicated by her Dexcom.

Dr. Radcliffe took each question of capacity in turn, starting with SJ’s capacity to conduct proceedings. His exploration of this in interview is set out between paragraphs 3.45 and 3.51 of his report. In his view, SJ was able to provide a sufficient explanation of matters to convince him that she understood the relevant information required to make decisions about the proceedings. This included the reasons for the proceedings, those involved, the process by which evidence is submitted and reviewed, the potential outcomes of the proceedings might arise, and potential compromises.

With support to direct her focus, Dr. Radcliffe considered that SJ was able to demonstrate her understanding, retention and use of information regarding different options. As such, he concluded that SJ has capacity to conduct these proceedings, but requires practical steps of proactive contact from her legal representation to maintain this, as “due to the impact of the negative symptoms of schizophrenia, notably avolition... she may not actively initiate contact with her legal representation to seek advice or give instructions.” However, Dr. Radcliffe cautioned that due to SJ’s diabetes management and schizophrenia symptom experiences being interrelated, SJ may benefit from re-assessment should the management of her diabetes deteriorate further.

Turning to SJ’s capacity to make decisions about the management of her diabetes, Dr. Radcliffe identified appropriate ‘relevant information’ including:

Dr. Radcliffe concluded that SJ is currently unable to understand, retain and use all of the relevant information regarding the management of her diabetes, “including the nature and impact of her diabetes, why a regime is necessary (i.e, the primary approach to prevent severe risk to life and hospitalisation), and the consequences of not complying with the regime (i.e, decompensation of her diabetes)” on account of her “schizophrenia related avolition and delusional beliefs”. The delusional beliefs include the nature of her diabetes and the reasons for decompensation in the past, whereas the avolition was evident in her response (or lack of) to her high blood glucose readings.

Dr. Radcliffe did not consider that there was any potential for SJ to develop capacity in this area within a reasonable timeframe, although noted that there is the potential for future improvements linked, at least in part, to the success of managing her diabetes. I note that this remained a point of disagreement with Dr. KR, who considered that whilst SJ can fluctuate in her presentation, this would never improve to the point where she reacquires capacity in this or any other domain.

Dr. Radcliffe also considered that SJ lacked capacity to make decisions regarding her care and treatment. He considered that whilst SJ understands and retains information that she receives support, she is unable to understand, retain and use information regarding all the relevant information and the type of support that she requires, and significantly the consequences of not receiving the correct support. Dr. Radcliffe considered that this inability is due to the impact of her schizophrenia-related delusional beliefs and avolition.

Finally, turning to SJ’s capacity to make decisions regarding residence, Dr. Radcliffe identified a list of relevant information in line with the authorities, including consideration of the sort of care that would be received in a placement. Whilst Dr. Radcliffe concluded that SJ is unable to understand, retain and use information regarding the sort of support that she would be provided within any residence option, “...once this is removed from the relevant information, Ms. SJ is able to understand, retain and use the rest of the remaining relevant information as part of her decision making.” Accordingly, Dr. Radcliffe concluded that SJ has capacity to make decisions regarding where she lives, in circumstances where decisions about the care which would be provided in each of the options have been made on her behalf.

In oral evidence, Dr. Radcliffe considered the increase in SJ’s negative symptoms of schizophrenia to be a marked difference from earlier reports. How her avolition, or lack of goal directed behaviour, presented depended on the decision in question. When considering management of diabetes, Dr. Radcliffe noted the need to self-monitor and react to her blood glucose levels several times a day. If SJ failed to access or respond to the information available, she would be incapable of understanding the situation that she was in. Dr. Radcliffe noted that even with the current level of support available to SJ at Z Placement, there was still evidence of avolition and difficulties in SJ initiating and sustaining goal directive behaviours. He considered that whilst support had a positive impact in addressing the effects of avolition, it was not to a sufficient degree to impact on the question of capacity in the areas of diabetes management and care.

In terms of SJ’s litigation capacity, when asked to contrast his findings on this question with those on subject matter capacity, Dr. Radcliffe noted that “the decisions are different in nature as to how her avolition has an impact. Managing diabetes requires a much higher level of goal related response. Litigation capacity and the transactional nature of representation provides the support and helps SJ retain capacity to litigate”.

Regarding SJ’s delusional beliefs, Dr. Radcliffe considered that even with these in mind, she retained her ability to understand, retain, and use information relevant to conducting litigation. In his view, the symptoms of avolition had a “compounding and multiplying effect when it comes to capacity regarding diabetes management”, but not litigation capacity. Whilst the delusional beliefs had an impact, it was not to such a degree as to rebut the presumption and result in a finding that she lacked capacity. Dr. Radcliffe considered that SJ’s legal representatives were able to provide alternative views and challenge in their discussions with SJ, and that she would be able to understand, retain, and use the information given to her in deciding how to proceed.

SJ has provided three witness statements to the court, dated 26^th March 2025, 14^th July 2025, and 3^rd November 2025. She says little about the question of capacity, save that challenges the conclusions of Dr. Radcliffe and Dr. KR. On the question of conducting proceedings, I note that SJ describes having ‘frank’ conversations with her legal representatives, detailing issues on which she has instructed them to act.

SJ only gave brief and limited evidence to the court and was not the subject of any questions on behalf of either the Health Board or the Local Authority. Regarding capacity, she denied that she held delusional beliefs, telling me “I’m not delusional. If I was, I wouldn’t be here.” In respect of people using her home in her absence, SJ referred a letter from a bailiff addressed to a EP (I am unclear as to whether this was in addition to the correspondence to AB). She questioned how such letters came to be at her home whilst she was not living there.

It is right that SJ’s legal team invite the court to consider the question of her capacity to conduct proceedings. They have a professional obligation to raise doubts about capacity with the court, regardless of any evidence, and are right to say that this is something that must be kept under review.

The evidence of Dr. Radcliffe and Dr. KR creates a conceptual difficulty in that it becomes necessary to divorce SJ’s capacity to litigate from the underlying subject matter. As I framed the issue at the outset, how is it said that SJ has capacity to conduct litigation about matters that she lacks capacity to determine herself? On the face of it, it is a premise that is entirely illogical, although it is clearly one open to the court to find as a matter of law.

In closing, Mr. Hadden pointed to the fact that the issue had never been the subject of active judicial determination. The declaration that SJ had capacity to conduct the proceedings dated 17^th November 2023 was made by consent and the evidence before the court at the time went untested. In any event, two years have since passed, and the evidence is that the symptoms of SJ’s schizophrenia have grown more prominent in recent months.

Mr. Hadden voiced his particular concerns about the impact of SJ’s increased delusional beliefs on her ability to understand the issues in the proceedings. He invited me to consider that both Dr. Radcliffe and Dr. KR had not properly grasped what it is to conduct litigation, and that it was incumbent on the court to grapple with the unusual conclusions that they had reached.

On the other hand, neither the Health Board nor the Local Authority invited the court to go behind the declaration made in November 2023. It was said that that Dr. Radcliffe and Dr. KR’s conclusions had been tested in evidence, and there was no evidential basis on which to rebut the presumption of capacity. Mr. Wenban-Smith further pointed to the coherent way in which SJ had litigated her desire to return home, with her active engagement evident throughout the proceedings.

Unusual cases require the court to return to first principles. The presumption that SJ has capacity to conduct proceedings at the present time can be rebutted only if there is sufficiently cogent evidence that she lacks capacity to do so. It must be proved that it is more likely than not that SJ is not capable of understanding, with the assistance of such proper explanation from legal advisors and experts in other disciplines as the case may require, the issues on which her consent or decision is likely to be necessary in these proceedings.

The requirement is to consider the question of capacity in relation to the particular transaction, its nature, and its complexity. At its heart, this case is a dispute about SJ’s ability to manage her diabetes in a way that ensures her health and safety, both in the past and in the future. However, the litigation also spans to include several other issues, including her care, residence, and potential deprivation of liberty. These are not straightforward issues, particularly so given the way they are enmeshed with one another.

I also have regard to the nature of the legal proceedings themselves and the demands that they make on litigants. I note Dr. Radcliffe’s view that SJ was able to provide sufficient explanations of the proceedings to convince him that she understood the relevant information required to make decisions about proceedings, including “the reasons for the proceedings, those involved, the process by which evidence is submitted and received, and how the outcomes of proceedings are achieved and enacted.”

Dr. Radcliffe concluded that SJ had the ability to instruct solicitors to act on her behalf, although noted that she requires the proactive assistance to counteract the negative symptoms of her schizophrenia. The availability of legal professionals to mitigate SJ’s avolition was plainly key to the conclusions of both Dr. Radcliffe and Dr. KR. This is consistent with the principle set out at s.1(3) MCA 2005 that a person should be facilitated to make a capacitous decision on the matter in issue by the taking of all practicable steps to help them to do so. Dr. Radcliffe was of the view that SJ’s delusions alone were not sufficient to render her without capacity to conduct proceedings, when the delusions did not themself go to the question of the conduct of the litigation.

I have some difficulty with this conclusion. SJ’s recent intensification of delusions includes her stating that she never required a hospital admission for her diabetes. In addition, SJ does not perceive herself to be at risk because she considers that she has “excellent and error free skills” in managing her diabetes. Dr. Radcliffe highlights how this evidences that SJ is unable to retain information from her own lived experience, or use information that substantiates the rationale for her support and treatment plan. This drives the conclusion that she is unable to retain the important information to be used to manage her treatment safely and appropriately. Dr. KR also touches on SJ’s inability to access lived experience, describing her as having a “chronic cognitive inability” to use this crucial information.

Clearly, I acknowledge that, in principle, SJ’s delusional beliefs about the subject matter of the proceedings do not necessarily preclude her from being able to instruct her legal representatives with sufficient clarity to allow them to advise her appropriately, or to understand and make decisions on the advice that she receives. However, it is extremely difficult to envisage how this could work on the ground given the particular issues being litigated. SJ’s history of diabetes management is clearly a central feature of the case. From this, everything else flows. If SJ’s delusions mean that she is unable to retrieve relevant information from her lived experience and understand the problem at the heart of the matter, she is plainly unable to use and weigh that information in the context of providing instructions to her lawyers. In turn, this inhibits her lawyers from providing advice in a way that SJ could be expected to understand and act upon, wisely or unwisely, regardless of the high level of experience and skill at her disposal. No amount of input from her legal representatives to mitigate SJ’s symptoms of avolition will resolve this critical underlying problem.

I acknowledge the care with which Dr. Radcliffe has approached this question (as well as that of Dr. KR, although he did not specifically consider it as part of his s.49 report), but have concluded that the evidence of SJ’s delusional beliefs has not been adequately accounted for in the question of her capacity to conduct proceedings. I accept the point made by Mr. Hadden that both Dr. Radcliffe and Dr. KR have presented a somewhat superficial understanding of what it is to conduct litigation. I have no doubt that SJ can describe matters such as the reason for the proceedings, those involved, and how and outcome is reached. She is an articulate individual that has progressed through a court case lasting three years. However, as McDonald J made clear in TB v KB and LH, court proceedings are a dynamic process and demand a certain level of engagement from litigants. I am not satisfied that either of the experts in this case really explored how SJ might engage in the process in a way that meets the demands placed upon her.

Returning to first principles, although the circumstances are without doubt unusual, I am satisfied that the evidence before the court provides a cogent basis to rebut the presumption that SJ has capacity to conduct proceedings. I find it more likely than not that SJ is not able to understand, with the assistance of such proper explanation from legal advisors, the issues on which her consent or decision is likely to be necessary in the course of these proceedings, as a result of an inability to recall and retain relevant information and use and weigh that information as part of making the decision about steps to be taken in the litigation. This is on account of her symptoms of delusions, which is directly attributable to an impairment of, or a disturbance in the functioning of SJ’s brain, namely the diagnosis of schizophrenia.

In light of this finding, the court must move to consider SJ’s participation pursuant to rule 1.2 of the Court of Protection Rules 2017. It was the view of counsel, shared by the court, that the appropriate way forward depends on whether the court proceeds to make final orders at this hearing. If it does, it is arguable that no further steps are necessary or proportionate having regard to the matters identified at CoPR r.1.2(1)(a)-(d). However, should the court determine that a trial at home should take place and list a further hearing, the court ought to appoint either a litigation friend or accredited legal representative pursuant to CoPR r.1.2(4).

Notwithstanding the above, SJ’s primary case in closing submissions was that she has subject matter capacity in all respects. In the first instance, Mr. Hadden submitted that limited weight should be afforded to Dr. KR’s evidence for three reasons; that his analysis had been infected by the protection imperative, that he had failed to have regard to the appropriate relevant information, and that he had erroneously incorporated questions of SJ’s insight into his assessment (n.b. on this point CT v Lambeth LBC [2025] EWCOP 6).

In respect of each:

Otherwise, the thrust of SJ’s argument was that neither Dr. Radcliffe nor Dr. KR gave adequate weight to the potential for practicable steps to help SJ make capacitous decisions. Mr. Hadden pointed to the evidence that SJ would respond and engage in her diabetes management when prompted by her carers, and drew an analogy with the assessment that SJ’s negative symptoms of schizophrenia could be successfully mitigated by her legal representatives in the context of her capacity to litigate.

On that point, I accept the evidence that even with the current level of support available to SJ at Z Placement, there was still evidence of avolition in the management of her diabetes. The wider evidence suggests that the steps taken by SJ’s carers are not leading her to make capacitous decisions, but are rather a necessity to ensure that her health needs continue to be met – a recent example being the response required to SJ’s drop in blood sugar levels on 5^th November 2025. As Mr. Wenban-Smith put it in closing submissions, the constant prompting of her carers is not a reasonable practical step leading to SJ maintaining capacity, but rather a compensating factor relevant to the promotion of her best interests.

Ultimately, I found the evidence of Dr. Radcliffe and Dr. KR consistent and persuasive on the question of subject matter capacity. The evidence is that SJ has suffered a recent intensification in her schizophrenia, and this has had a significant impact on her management of diabetes and making decisions about her support. I conclude as follows:

I accept the evidence that SJ’s delusional beliefs and avolition are at the heart of SJ’s inability to take decisions in these areas, which is directly attributable to an impairment of, or a disturbance in the functioning of SJ’s brain, namely the diagnosis of schizophrenia. I am also satisfied that my conclusions in this regard are supported by other aspects of the information before the court beyond the expert evidence, as I shall consider below when addressing the question of SJ’s best interests.

It follows that I am satisfied that there is cogent evidence to rebut the presumption that SJ has capacity in these domains, and I find on the balance of probabilities that she does not.

I note that the court does not need to resolve the slightly different views as to the scope of fluctuation in SJ’s presentation and any potential for SJ to regain capacity in the future, given that there is agreement between Dr. Radcliffe and Dr. KR that re-assessment is warranted should there be a clearly identifiable significant positive change in SJ’s presentation.

Where, because of their lack of mental capacity, a person is unable to make a decision that must be made, that decision must be made for them in their best interests.

When determining what is in a person’s best interests, consideration must be given to all relevant circumstances, to the person’s past and present wishes and feelings, to the beliefs and values that would be likely to influence their decision if they had capacity, and to the other factors that they would be likely to consider if they were able to do so: section 4 MCA 2005.

The leading case regarding the application of the best interest criteria is the decision of the Supreme Court in Aintree University Hospitals NHS Foundation Trust v James and others [2013] UKSC 67. At [39] and [45] of her judgment, Baroness Hale stated:

“The most that can be said, therefore, is that in considering the best interests of this particular patient at this particular time, decision-makers must look at his welfare in the widest sense, not just medical but social and psychological... they must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would be likely to be; and they must consult others who are looking after him or interested in his welfare, in particular for their view of what his attitude would be.”

[...]

“The purpose of the best interest test is to consider matters from the patient’s point of view. That is not to say that his wishes must prevail, any more than those of a fully capable patient must prevail. We cannot always have what we want. Nor will it always be possible to ascertain what an incapable patient’s wishes are ... But insofar as it is possible to ascertain the patient’s wishes and feelings, his beliefs and values or the things which were important to him, it is those which should be taken into account because they are a component in making the choice which is right for him as an individual human being.”

In ITW v Z, M & Various Charities [2009] EWHC 2525 (Fam), Munby J (as he then was) set out a number of features which may be important when assessing P’s wishes and feelings [35]:

The best interests jurisdiction of the Court of Protection is limited to choosing between what is practically available and thus ‘on offer’ (both now and in the foreseeable future), and, in particular, where the only candidates for funding are statutory authorities, the court is largely restricted to the option(s) which the statutory authorities put forward: Re MN (Adult) [2015] EWCA Civ 411.

People with mental capacity do not expect perfect solutions in life, and the requirement in s.1(5) MCA 2005 that ‘An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests’ calls for a sensible decision, not the pursuit of perfection: Cases A & B (Court of Protection: Delay and Costs) [2014] EWCOP 48.

In cases of vulnerable adults, there is a risk that all professionals involved with treating and helping that person (including a Judge in the Court of Protection) may feel drawn towards an outcome that is more protective of the adult. This point was articulated most strikingly in the judgment of Munby J in Re MM (An Adult) [2007] EWHC 2003 (Fam) at [120]:

“A great judge once said, ‘all life is an experiment’, adding that ‘every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge’ (see Holmes J in Abrams v United States (1919) 250 US 616 at 630). The fact is that all life involves risk, and the young, the elderly and the vulnerable, are exposed to additional risks and to risks they are less well equipped than others to cope with. But just as wise parents resist the temptation to keep their children metaphorically wrapped up in cotton wool, so too we must avoid the temptation always to put the physical health and safety of the elderly and the vulnerable before everything else. Often it will be appropriate to do so, but not always. Physical health and safety can sometimes be brought at too high a price in happiness and emotional welfare. The emphasis must be on sensible risk appraisal, not striving to avoid all risk, whatever the price, but instead seeking a proper balance and being willing to tolerate manageable or acceptable risks as the price appropriately to be paid in order to achieve some other good - in particular to achieve the vital good of the elderly or vulnerable person’s happiness. What good is it making someone safer if it merely makes them miserable?”

 The importance of promoting P’s autonomy in the context of best interests was emphasised by Hayden J in Barnsley Hospital NHS Foundation Trust v MSP [2020] EWCOP 26: 

Article 8 ECHR is a relevant factor in this case. However, in K v LBX and Others [2012]EWCA Civ 79, the Court of Appeal confirmed that there is no presumption in favour of family life when undertaking a best interests’ analysis. The exercise requires consideration of the factors set out at section 4. During that evaluation a judge will always be required to factor in an assessment of whether the proposed course is necessary and appropriate and whether it properly justifies the interference with the Article 8 rights of P. Thus, no artificial starting point should be imported into the exercise.

Dr. BM is SJ’s treating diabetologist based at X Hospital. He has been involved in SJ’s care since she first developed diabetes in 2007. In his witness statement dated 29^th October 2025, Dr. BM provides a general overview of the nature of SJ’s diabetes:

Dr. BM emphasises the need for a person prone to ketoacidosis to be reactive to their needs in any given moment:

“As ketoacidosis develops, the ability of a person with diabetes to manage their diabetes deteriorates because their level of consciousness and ability to think clearly is also disturbed. It is therefore essential that a person living with diabetes cannot only manage their insulin appropriately at every injection without omitting or forgetting doses but also that they are able to adjust their insulin doses according to what they eat... and that they are able to recognise the effect of illness on their diabetes and make suitable adjustments to their insulin administration to control their blood sugar.”

It is noted that SJ has also suffered severe hypoglycaemia, leading to deranged brain function leading to impaired consciousness and subsequently loss of consciousness. Dr. BM states “... generally, once the blood sugar reading falls below 2.5, people living with diabetes will feel confused, sweaty, hungry, may have blurred vision and will have difficulty concentrating or remembering how to perform day to day tasks such as managing diabetes. It is therefore important that a patient also understands how to manage their insulin requirements in relation to reduced appetite or food intake... and that they are able to safely administer insulin by drawing up the correct dose and injecting it with good technique.”

Considering SJ’s history of admissions, Dr. BM considered that it would be “extremely risky” for her to be in an environment where she was not closely supervised. Even if SJ had carers attending her home four times per day, he believed the risk her diabetes would deteriorate to be “very significant” because of the periods between daytime visits and overnight, with the consequences that “she could come to significant harm and potentially die.” Indeed, Dr. BM states that “...the likelihood of SJ coming to significant harm if she were to return to independent living is so high as to be almost a certainty.”

Dr. BM notes that the risks are extremely variable and unpredictable, with a vast array of complicating factors including SJ’s level of activity, food and fluid intake, ability to use her monitoring app and additional tests as necessary, her ability to take corrective action, and her ability (and willingness) to seek professional home. Dr. BM describes how a person can become unwell within one to two hours of a mistimed or wrong dosed insulin administration, and as such, the behaviour and activity of the patient have a dramatic impact on whether the blood sugar levels rise or fall quickly enough to cause harm.

In terms of risk management in an unsupervised environment, Dr. BM notes that it would be totally dependent on SJ to respond to the readings from her glucose monitor in an appropriate manner. Dr. BM describes how a “high level of patient engagement and understanding” is required for continuous glucose sensors to be used in a reliable and safer manner. From a diabetes management perspective, “it is my opinion that SJ would be best served in a supported environment where she has close supervision by 24 hour access to advice from staff trained in and able to assist with diabetes management.”

In his oral evidence, Dr. BM was asked about SJ’s drop in blood sugar levels to 2.0mmol on 5^th November 2025 and the suggestion that she seemed confused and unable to respond without assistance. Dr. BM confirmed that a low reading such as this would cause both physical and cognitive symptoms. Left without intervention, this could certainly lead to loss of consciousness, seizure activity, and death.

It was put to Dr. BM that there was merit in trying the proposed support package at home. Dr. BM disagreed, noting again the variables that impact on diabetes control and the associated risks. Whilst he accepted that the package of support might mitigate the risks, they could not be removed or reduced to an acceptable level. He noted that even with support, SJ had a long history of life-threatening hospital admissions. Dr. BM reiterated his assessment that there was “a very high likelihood that [SJ] would experience one or other complication of diabetes – the historic pattern would be reinstated and start again.”

Dr. BM was taken through various medication options, and explained why the preferred insulin option for SJ is short-acting Novomix. He noted that the effect of a missed dose of Novomix would be evident within 8-12 hours, or sooner, and certainly before the time that the next dose was required. For example, if SJ missed an evening dose, he would expect her to be unwell by the next morning. Dr. BM rejected the use of an insulin pump in SJ’s case, as it was highly dependent on active and very precise management and “if insulin pumps go wrong, they go wrong very quickly.”

Miss West is responsible for the management of the Health Board’s Complex Care and Commissioning Team, and has been involved in SJ’s discharge planning and placements since 2023. As an indicator of the extent of her involvement, she has filed no less than 15 witness statements in the proceedings.

Miss West exhibits to her statement dated 27^th June 2025 a series of proposed plans to support a trial at home, including a diabetes management plan, diabetic escalation plan, transition plan, and a care and support plan.

Despite the detail of the plans, Miss West notes the Health Board’s view that “there are still issues with this care plan as not all risk can be mitigated to what would be a desired level to support positive risk taking”, and “there would be “an ongoing risk to life should the court direct that the trial at home progresses.” The issues include SJ’s ability to follow the Diabetic Escalation Plan in an emergency, there being no 24 hour contact available to respond other than 999, and the challenges of putting a plan in place involving X Hospital – both in terms of arranging transport to the hospital and the risk that those staffing the Medical Assessment Unit not being familiar with SJ’s specific plan.

Miss West is also of the view that the package of care at home would have the unintended consequence of being more restrictive than her arrangements as Z Placement, as would be required to be home for a number of visits at fixed times, and have fewer opportunities to visit her father and engage in other social opportunities. The Health Board also anticipate tension with the professionals tasked to administer the care package, should the return home not proceed in the way that SJ expects. This includes SJ’s mistaken belief that she will gain access to significant grants to decorate and restore her property to how she remembers it.

In a further statement dated 7^th July 2025, Miss West provides an update in respect of SJ’s diabetes management. She states that SJ’s diabetes has been erratic throughout the months of March, April, May and June 2025, with fluctuations without a pattern or obvious explanation. During this period, SJ required 11 separate adjustments to her treatment plan. Miss West set out the Health Board’s view that it is only the current 24 hour supported living arrangements, bolstered further by the support of the District Nurses, that has prevented the previous pattern of hospital admissions.

Miss West’s final statement dated 23^rd October 2025 provides a number of further updates, including:

Miss West set out the Health Board’s efforts to identify a care agency that could provide appropriately skilled staff to meet SJ’s needs in the event of a trial at home. Only one agency put themselves forward as being able, in principle, to assist – W Care Agency. This would depend on W Care Agency receiving additional enhanced training in the monitoring and management of diabetes, and the availability of staff at the required times for home visits.

Miss West commenced her oral evidence with further detail as to the bout of hypoglycaemia on 5^th November 2025. As per the case note provided, SJ’s carer had responded to the Dexcom alarm to find SJ clammy, a little confused, and unable to take the reading. It was the carer’s view that SJ was unable to act independently due to her symptoms, leading to the carer to take over in accordance with the care plan.

The court was also informed that SJ had been the victim of another extremely unpleasant incident at Z Placement, with somebody pouring urine over her bed whilst she was out. It was unknown whether the culprit was the same individual that had assaulted her, although this was SJ’s firm belief. In any event, the Health Board is now taking active steps to move the other resident away from Z Placement.

In terms of identifying a care agency to assist in the event of a trial at home, Miss West noted that the level of risk presented by SJ’s diabetes and the amount of responsibility this placed on carers was very different to what most agencies agree to deal with. Whilst W Care Agency had responded positively following a paper-based assessment, Miss West did not anticipate they would agree to proceed until after a core group of staff had received a minimum full day training. Miss West contrasted this with SJ’s current carers at Z Placement, who have all had enhanced training via diabetic specialists and are involved with the district nurses daily. Whilst an equivalent might be provided by a care agency, Miss West noted that the turnover of staff within a domiciliary care agency was significantly greater than with a 24/7 supported placement, and consistent of carer was likely to become a factor. Miss West also noted the benefit of there always being more than one carer available at Z Placement to provide additional support in the event of an acute situation.

Miss West touched on the recent intensification of SJ’s delusional beliefs, specifically regarding the idea that somebody else had been living at her home. She noted that it was “difficult to support her to deviate from these beliefs. It is anxiety provoking for her when her delusions are challenged. They are fixed and firmly believed by SJ, and so challenging them can impact on the relationships of those working with her.” Miss West cited a recent example of SJ complaining about bags of rubbish at her home. SJ’s upset was on the basis that she had no recollection as to how it had been accumulated, although in reality, she had been present and actively involved when this had happened earlier in the year.

In response to the suggestion that it was in SJ’s best interests to commence the trial and see how it goes, Miss West questioned what would have happened if the bout of hypoglycaemia on 5^th November had happened 15 minutes after a carer had left SJ’s home:

“It’s not a clinical risk the Health Board can take. It would only take one incident like that. It’s a foreseeable risk, it’s not something that has never happened. It may not happen weekly, but it’s a foreseeable risk that might lead to death on the first occasion that it happened. There is nothing that led up to the incident [on 5^th November] that would have alerted staff to act differently. Maybe there was an additional stressor caused by the Monday [the urine on the bed incident] but those things periodically happen. There are always stressors, and SJ’s fluctuations in her diabetes is particularly susceptible to stress and other external factors. We cannot control and predict, we can only respond after the event.”

CD has been SJ’s social worker since August 2025. Although she was not called by any party to give oral evidence (given the Local Authority’s alignment with the Health Board), I have considered the contents of her witness statement dated 28^th October 2025. I note that she recalls the first time that she met SJ on 18^th September 2025, describing how SJ had report that she did not have a diagnosis of a mental illness, and is “just a person who jumped over 4 flights of stairs.”

CD details two occasions when she has witnessed concerns surrounding SJ’s management of her diabetes. During their first meeting, SJ’s Dexcom sounded with a blood sugar level of 13.9mmol, to which she responded that she did not need to do anything as she had only just recently had a coffee. When meeting for a second time on 1^st October 2025 prior to a visit home, SJ required prompting from staff to take her emergency diabetes bag as she had almost left without it. SJ then declined to drink water when her alarm warned of high sugars, stating that she would be fine. Both occasions are in keeping with the observations of staff and Dr. Radcliffe that SJ will decline fluids and dismiss her Dexcom readings even when prompted to act.

SJ is clear throughout her evidence that she would accept any support that will enable her to return home, including the proposed package of care of four care visits per day. She also proposes wearing a fall bracelet/pendant to address the concerns regarding the absence of 24-hour contact. She disputes the Health Board’s assertion that she will become isolated at home, indicating that she will travel by train or taxi (e.g, to visit her father) and around her care calls.

SJ describes her upset at the state of her home when she returned at the start of the year, and the letters left at the property addressed to another individual. However, “being at home and surrounded by pictures of my family and certificates of my achievements was a reminder of how much I would love to be at home and in my own space.”

In terms of her diabetes management, SJ considered that she was able to check her blood levels and administer her insulin independently. She describes an incident on 30^th October 2025 when she resolved an episode of low blood sugar overnight by making herself some toast and coffee (although she accepts there is no record of this as she did not feel it necessary to wake staff to tell them). SJ states that she understands the concerns and the risks, including the risk to her life, although considers that the plans allow her to have in place what she needs to stay safe at home.

In her oral evidence, SJ explained that she wanted to return home as “that’s my life, I brought my children up there, it’s my life and home, I’ve lived there since 2010. I’m happy at Z Placement, but I want to go home. I want to pursue the studies in psychotherapy that I had started.” I am bound to note that she then told me, without further prompting, how she had been physically beaten when she was admitted to hospital in 2021, and that people would “take my clothes out of the washing room and sell them for fags over the fence.”

SJ insisted that she would respond to her Dexcom alarm sounding, and would act to address low blood sugar by drinking water and “washing the ketones away.” She stated that if it was suggested that she go to hospital, she’d go as “I always accept, I do not say no.” However, I note that she did not go as far as to say that she would take herself to hospital of her own volition.

When asked whether she accepted that there was a risk to her health or life, SJ responded “If there was a risk to my life, I’d be on the floor. No say in that really.” She then added that even if there was an increased risk to her life, she would still wish to do it as she wanted to go home to her house and “don’t want to be pushed around.”

Finally, I note that SJ denied the suggestion that she had delusional beliefs. In terms of the question of somebody using her house, SJ referred to finding a bailiff letter stating that EP was coming to take furniture. SJ asked how the letter came to be there if this person had not been in her house. She concluded her evidence by stating “I’m not delusional, if I was, I wouldn’t be here.”

The court must start by identifying the potential options in relation to SJ’s residence, care and diabetes management. In this case, it is agreed that there are two:

The point is made on SJ’s behalf that a trial at home with this type of care package has not been attempted previously. It is said that this may well be her last chance of living independently, subject to a significant improvement in the management of her diabetes. A decision not to proceed with a trial at home will have the likely consequence of her tenancy being surrendered by her Deputy, and as such the decision carries an air of finality.

A trial at home would clearly be in accordance with SJ’s wishes and feelings. In assessing the weight to give to these, I note the strength and consistency of her views. She has been clear that she wants to return home from the outset, and whilst she accepts that she is happy at Z Placement, this is not where she wants to be. SJ’s desire to live at home is voiced with great clarity. It is where she lived and created a life with her children, watching them grow from young children to young adults. It is steeped in memories, including the photographs and certificates that continue to adorn the walls. I accept that to SJ, it must feel as if her life has been placed on hold. I know that she wants nothing more than to pick up where she left off and genuinely sees a long future living independently as she did prior to 2021.

SJ’s desire is entirely understandable, although perhaps inevitably, there is a degree of unrealistic optimism about her view. She does not appear to understand the extent of the work required to restore the house to its former warmth, nor the difficulties that might come in funding this. In the context of her beliefs as to involvement of a third party at the house, I accept this will likely prove particularly problematic. There is also little reference to the very limited quality of life that she must have had in the years preceding her admission, or the social isolation that came with behaviours that were perceived as challenging. Although I understand why SJ wholeheartedly agrees with the proposed package of care, I am unclear that she appreciates the impact on her independence that will come with a requirement to be home at fixed times for up to five hours a day.

With this last point in mind, I note that Mr. Hadden suggests that “the option of a trial at home is arguably less restrictive than her current placement” (my emphasis). Mr. Hadden is right to put this in such a measured way, because it is by no means clear to me that it will be. The extent of the support that SJ will require at home will inevitably curtail her freedom. SJ’s current arrangements allow her a degree of spontaneity, with carers available to facilitate ad hoc changes to her routine to accommodate visits to family members or engage in social activities. This will be lost on a return home, with the visit plan adding to the list of rules that she already must live with.

The Health Board and the Local Authority’s case in opposition to a trial at home focusses on risk (although I note that there also remains some uncertainty surrounding logistics with W Care Agency yet to confirm it would take on the role of domiciliary carers in any event). I am bound to accept the evidence of Dr. BM and Miss West in respect of the core questions associated with any risk assessment.

In respect of the steps that could be taken to reduce the likelihood of harm or to mitigate its effects, these are set out in the array of support and management plans before the court. In principle, they are comprehensive and provide a clear pathway to successfully managing SJ’s diabetes.

However, the reality is that these plans are entirely dependent on SJ’s initiative and engagement to achieve their aims. It is apparent from all the recent evidence that SJ relies heavily on prompting and motivating from her ever-present care team, in addition to district nurse visits, to prevent her suffering serious and life-threatening incidents. I also accept the evidence that SJ continues to ignore or fails to follow advice about simple measures to keep a diabetic attack at bay, including drinking sufficient fluids or maintaining an appropriate diet. The periods between visits would leave SJ unacceptably vulnerable. I accept the evidence that serious diabetic complications could arise in the intervals and overnight, and that the risk of SJ coming to significant harm is “near a certainty”.

I am conscious that the court is invited to take a short-term decision for a trial at home. Mr. Hadden submits that the court’s rationale and approach to risk ought to be different when compared with a decision about returning home on a long-term basis. In the circumstances of the case, I respectfully disagree with this proposition. This is not a case where SJ has a progressive illness or is approaching the end of her life, and the imperative to commence a trial is driven by time. It is also not a case where the court might be concerned about a ‘slow burn’ risk to an individual (for example, self-neglect), where a trial could be assessed as failing and brought to a halt before undue harm is caused. The risks identified, the time in which any risk may materialise, and the consequences of those risks are all such that the court must be certain in its decision making both in the short and long term.

Ultimately, I do not accept that the risks to SJ are manageable to any acceptable degree, even in the context of a trial at home. I reach that conclusion sadly, and I wish it could be different for SJ given the strength of her wishes. However, I do not consider that her views can be properly accommodated within the assessment of what is in her best interests. I am very mindful of the impact that this will have on SJ, but take some reassurance from her stated happiness at Z Placement (save for the now time-limited issue of the resident who assaulted her) and the fact that she will continue to benefit from so much whilst living there – freedom to see her family, engage in activities that she enjoys, and enjoy the camaraderie that she shares with her carers. I am satisfied that Z Placement provides the best balance to promote her quality of life, including her physical health, safety, and emotional welfare.

Accordingly, I find it to be in SJ’s best interests that she continues to reside at Z Placement and in receipt of the package of care that she currently receives. This is the necessary and proportionate response to her circumstances. I note that whilst SJ’s diabetes continues to present its challenges, the care and support that she currently receives has proved transformative in terms of keeping SJ safe and free from the frequent serious ill-health and hospital admissions that she endured prior to 2021.

In determining that SJ lacks capacity and that it is in her best interests to remain at Z Placement, all parties accept that she will be deprived of her liberty due to her care arrangements. I authorise this pursuant to s4A(3) and 16(2) MCA 2005 in order to give effect to my decision. For all the reasons that I have already set out, it is in SJ’s best interests, and a necessary and proportionate to her circumstances.

Before the court can authorise an extended review period, the requirement of Art 5(4) ECHR mean that the court will need to be satisfied that a suitable representative for SJ has been appointed to monitor the implementation of her care plan at Z Placement: Re PQ (Court Authorised DOL: Representation During Review Period [2024] EWCOP 41 (T3).

I note the evidence of Miss West that the Health Board have a service level agreement with Advocacy Support Cymru for advocacy services, although no approach had been made in respect of SJ at the time of the final hearing. I accept the proposal of Mr. Hadden that the court gives the Health Board 15 working days from the date of the handing down of this judgment to arrange the appointment of a r.1.2 representative, failing which the matter will be restored to court for further consideration.

This issue falls to be considered per paragraph 84 above. I note that it was not suggested by any party that should I find that SJ’s lacks capacity to conduct proceedings, I should defer consideration of subject matter capacity and best interests to allow for a litigation friend or ALR to be appointed. The court had a significant amount of information about SJ before it, her wishes and feelings have been conveyed to the court both direct and via her legal representatives, and the Health Board’s witnesses have been challenged in keeping with the case she wished to put.

However, although my orders bring an end to the proceedings, and in that sense the matter is no longer contentious, I take the view that it is necessary to make a direction under CoPR r.1.2(2). There remain two issues on which SJ’s participation needs to be secured. The first is hypothetical, at the time of writing at least, namely consideration of any application for permission to appeal my decision. The second is the question of anonymisation and publication of the judgment, to be determined with reference to the Transparency in the Court of Protection, Publication of Judgments, Practice Guidance dated 16^th January 2014.

I am satisfied that the proportionate approach in all the circumstances is to appoint SJ’s solicitor, Miss Sarah Newport, as her ALR (Footnote: ¹). This will ensure that SJ’s participation in these narrow issues is safeguarded whilst also maintaining continuity and an in-depth knowledge of the current circumstances. The appointment shall last until such time that a suitable r.1.2 representative for SJ has been appointed to monitor the implementation of her care plan.

The court declares that SJ lacks capacity to:

The court declares that SJ has capacity to make decisions about where she lives, between options that it has been decided could meet her needs.

The court orders that it is in SJ’s best interests to reside at Z Placement and receive care and support there as described in her current care plan.

The care package in place at Z Placement amounts to a deprivation of SJ’s liberty; that deprivation of liberty is hereby authorised as being in her best interests, necessary, and proportionate.