Darlington Borough Council v AW & Ors

On 22 May 2025, I dismissed the local authority’s application in the Court of Protection in relation to a young person - AW - on the basis that the evidence before the court was that AW had capacity.

AW was born in 2006. She is 18 years of age. DW and IW are her mother and father and the third and fourth respondents in the proceedings. AW is the only child of DW and IW.

The applicant local authority has duties to AW under the Care Act 2014. In addition, and with the ICB, it jointly commissions a package of care for AW in accordance with the statutory obligation under Section 117 of the Mental Health Act 1983. The NHS Trust hold responsibility for the provision of healthcare.

In February 2020 AW moved secondary schools and reported some bullying within her new school.

In November 2020 AW was assaulted by another pupil, receiving a punch to the left side of her head. She attended at Accident & Emergency, was referred for an MRI scan which revealed no abnormalities. However, AW reported continuing headaches and double vision. She did not return to her school. AW became withdrawn and less likely to engage with peers, engaged in self-harming behaviours, expressed suicidal ideation, made attempts to take her life and displayed disordered eating. AW consistently expressed a wish to end her life before she reached the age of 18 as a way of avoiding adulthood.

Prior to the commencement of the proceedings in 2024, AW was admitted to hospital in January 2022 due to food refusal and then due to a paracetamol overdose. AW was detained under s. 2 and s. 3 of MHA 1983, and subsequently discharged home on 27 June 2022. There were further incidents of running away, self-harm and overdose, some of which necessitated hospital admission

On the 3 April 2024 AW was discharged to a short-term placement but absconded on the same day. Police located AW and returned her to the placement. AW reported that she had consumed an unknown substance and appeared to be hallucinating. AW was readmitted to the hospital. She was discharged on the 8April 2024 and returned to her short term placement.

On the 15 April 2024 AW was detained by police under Section 136 of the Mental Health Act 1983 when she was found trespassing on a railway line and attempting to jump off the railway bridge.

On the 16 April 2024 assessments concluded that AW did not meet the criteria for detention under the MHA 1983 and AW was again discharged to her short term placement. The same day AW left that placement and made her way to a train track. On 17 April 2024, AW was arrested for trespassing on railway lines and detained in custody by the police.

On the 18 April 2024 AW was admitted to hospital under the MHA 1983 suffering emotional dysregulation. An assessment of AW’s capacity in May 2024 concluded that AW had capacity to make decisions regarding her residence, care and support. A Mental Health Tribunal upheld AW’s detention under MHA 1983 until 2 May 2024 at 12 noon to allow time for the local authority to have the correct measures in place for AW upon discharge.

AW was discharged to a new placement where she was supported by staff from M Agency. AW was provided with 2:1 support 24 hours seven days a week. She was the only resident.

On 1 May 2024 the applicant applied for permission to invoke the inherent jurisdiction and if granted authorisation to deprive her of her liberty in the following ways;

At the time of the application under the inherent jurisdiction, AW was a child within the meaning of the Children Act 1989 – S105 Children Act 1989. As a child she was accommodated by the applicant local authority under S20 Children Act 1989; both her parents consenting to her accommodation. AW did not seek to return their care and had previously been considered capable of consenting to her own accommodation which she had done on 3 April 2024.

The local authority application came before the court on 1st May 2024 and was heard by Mr Samuels KC sitting as a Deputy High Court Judge. He considered that the case should be adjourned to the following day to allow for the appointment of a children’s guardian for AW. The local authority was ordered to file a document setting out the following information:

The application came before Mr Justice Moor on 2 May 2024. Mr Justice Moor made the order sought for a short period. The case came before me on 3 June 2024. By that time although AW was said to be settled, she was still self-harming and threatening to kill herself. The court declared that the restrictions on AW’s liberty, approved by the court at the last hearing, continued to be in her best interests and authorised their continuation until 23.59 on 25 June 2024. Further, I approved the instruction of Dr Ursula Cawthorne, to undertake a psychological assessment and a capacity assessment of AW. This was to be filed by 18 June 2024. The court further ordered, by consent, that a Clinician from the relevant hospital Trust should undertake a capacity assessment of AW by 18 June 2024 addressing:

At the hearing on 3 June the applicant asked me to join the Hospital Trust and the ICB as parties to the proceedings. At that hearing I did not consider joinder necessary. However, I indicated that this would be kept under review and reconsidered at the next hearing on 25^th June 2024.The Trust and ICB were invited to attend that hearing. The applicant was ordered to serve the s117 Aftercare Plan for AW and an Updating Statement addressing what the plan for AW’s care is going to be, how that is going to be implemented and whether the local authority intends to issue any proceedings in the Court of Protection.

The expert evidence before me as at 25 June 2024 was from a Consultant Clinical Psychologist at the Hospital Trust:

At the hearing on 25 June 2024 having heard submissions from all parties and by consent, I continued to authorise the deprivation of AW’s liberty.  By that hearing I had expert evidence confirming that AW has fluctuating capacity to litigate at best and is likely on the balance of probabilities to lack capacity, the court considers that AW is a protected party. I therefore directed the local authority to file any application they wished to make in relation to AW in the Court of Protection by 2 July and invited the Official Solicitor to act as her litigation friend.

On 9 July 2024 the applicant local authority issued an application in the Court of Protection.

On the 16 July 2024, the Court of Protection made the first order authorising AW’s deprivation of liberty and those orders have continued to be made.  Prior to the orders made by the Court of Protection AW’s arrangements for her accommodation and care which amounted to a deprivation of liberty were authorised by the High Court invoking the inherent jurisdiction.   

On 19 July 2024 Dr Cawthorne, Consultant Clinical Psychologist and Independent Court-Appointed Experthad filed an interim report. They considered that AW has fluctuating capacity in the areas of care and support, accommodation and conducting the current proceedings. They stated that:

With respect to consideration of the diagnoses of PTSD and ASD, Dr Cawthorne stated:

On 22 July 2024 AW was assessed as having capacity to enter into a tenancy agreement and sign the tenancy.

On the 10 November 2024 an ambulance was called to AW’s property due to AW being found in an unresponsive state. AW was admitted to Hospital having overdosed. AW had left a note and an hour of video recordings to say goodbye. AW was discharged from hospital. AW revealed that she had been secreting the medication since August 2024 with the intention to end her life on the 10 November, the anniversary of the assault.

In November and December 2024, issues arose in relation to AW’s compliance with her medication regime. AW had refused to take her medication for the management of her mental health but also the medication for her acne and iron deficiency. At the same time there had been a breakdown in the relationship between M Agency’s staff.

As a result, the ICB and the local authority (the commissioners of AW’s care) determined that an alternative provider of care should be identified and sourced. The concerns in relation to M Agency included inconsistencies with staff, staff’s knowledge around medication and staff waking up AW from her sleep. A new provider was identified and in February 2025 it was anticipated that the care would be fully provided by C Agency by the 10 March 2025. That transfer did take place, but concerns arose about the ability of C Agency staff to keep AW safe and whether they were trained in restraint techniques.

The matter was restored for hearing before the court on the 15 and 16 April 2025. The order from that hearing records that on the 5 April 2025 AW was taken to hospital as there were concerns that AW had not eaten for some time. AW was discharged back to her placement on the 7April 2025 after her bloods had been checked and there were no signs of malnutrition.

On the 11 April 2025 AW was admitted to Hospital. The admission recorded that this was due to decreased oral intake over the previous 10 days and tachycardia. (The order of the 16 April also records that AW had not eaten for nine days). AW was transferred to the gastroenterology ward. The possibility of the placement of nasogastric tube was discussed with AW as this would save her life if she did not eat. AW was not in agreement with this. A mental capacity assessment for accommodation in hospital and a further assessment in relation to the insertion of the NG tube were completed. AW was considered to lack capacity for both these decisions. The hospital granted an urgent authorisation and subsequently made a request for a standard authorisation. The urgent authorisation lasted until the 19 April 2025, with an additional seven days given the request for the standard authorisation. In relation to the insertion of an NG tube, a plan for the NG tube insertion was made but due to the level of restrain that would be required, it was determined that it was not in AW’s best interests at that time and may cause more harm than good.

On 16 April 2025 I made an order under Section 48 MCA 2005 which included a recording that there was reason to believe that AW lacked capacity to conduct these proceedings, to make decisions on her residence, care, and face to face contact with SB (a friend) and made a welfare order that it was in AW’s best interests to reside at a new placement and for AW to receive care and support as arranged by the local authority. I made further welfare orders authorising AW’s arrangements for her care which amounted to a deprivation of liberty in the circumstances set out in paragraph 3 of the Order. These arrangements included the external doors and windows were to be locked and AW was not free to leave her placement; AW was supervised within and outside of the placement (save when in the bathroom) using a staff ratio 2:1 and the use of reasonable force and restraint to prevent harm to herself or others and also the use of such force as was necessary to prevent her leaving the placement and/or to facilitate returning her there.   

By the 22 April 2025 the gastroenterologist concluded that an acute ward was not the best place for AW and that AW should be managed with enhanced support in the community in a familiar environment. An NG tube was likely to be counterproductive as AW’s reduced intake was psychological. On the 28 April 2025 AW was discharged back to her placement where she was to be supervised and deprived of her liberty as set out in my order of 16 April 2025.

On the 7 May 2025 AW’s solicitor visited AW. The note captures that:

AW’s capacity has been a central issue before this court. On 24 August 2024 I gave permission to the parties to jointly instruct Dr Christopher Ince, Consultant Psychiatrist to report to the court. The timescale in which he was to report was extended to December 2024. However, his reports were not filed on time as directed. In March 2025 he gave the court his reasons for the delay which were personal and which do not, I consider, need to be recited in this judgment. Whilst this court has every sympathy with Dr Ince on one level, in my judgment I cannot simply ignore the delay it caused to the proceedings; resulting as it did in a four-month delay and a final hearing having to be re-listed at least once. In future this court would prefer to be told of such problems at the earliest opportunity so that it may take proactive steps, including instructing an alternative expert. This court is grateful to Dr Ince and his evidence when it eventually came. His written and oral evidence has been central to my decision-making. It is authoritative and is clearly based on huge expertise.

Dr Ince’s substantive report is dated the 14 April 2025. Dr Ince saw AW on three occasions the 29 October 2024, 7 March 2025 and 21 March 2025.  All interviews took place at AW’s placement.  The interview on 21 March 2025 took place with AW having the support, at her request, of her support worker.  Dr Ince noted that “Throughout the three interviews, AW displayed a clear understanding of the Court of Protection proceedings and she spoke eloquently and at length.”

In summary, and in relation to the functional test set out in Section 3 of the MCA 2005 Dr Ince concluded as follows: 

Dr Ince concluded that AW has a confirmed diagnosis of ASD.  In relation to this diagnosis AW’s presentation is characterised by sensory sensitivity, cognitive rigidity, marked difficulties with transitions and relational boundaries and atypical executive function.  There is evidence of difficulties with interoceptive awareness, a concrete thinking style and emotional processing deficits all consistent with the autistic profile.  AW also meets the criteria for Complex Post Traumatic Stress Disorder.  The experiences which have led to this traumatic stress disorder results in an affective instability, a negative self-concept, relational hypervigilance and a pattern of maladaptive coping strategies to include self-injury, disordered eating and social withdrawal.  AW also presents with disordered eating behaviours, most closely aligned with Atypical Anorexia Nervosa.   

Dr Ince concluded that overall, AW presents with a constellation of interacting difficulties, to include Autism, developmental trauma, effective instability and relational risks.  The conditions do not exist in isolation and her presentation is not adequately captured by one diagnostic label.  AW’s functional profile varies significantly depending on emotional state, environmental stability, relational safety and perceived autonomy.  These factors form the causative nexus between the diagnostic and the functional test.   

Dr Ince provided a further report on the 6 May 2025 responding to a significant number of questions of clarification which had been raised.  In summary: 

The MCA 2005 sets out the statutory framework for dealing with capacity with the important fundamental principle enshrined in s1(2) that “a person must be assumed to have capacity unless it is established that he lacks capacity.” Sections 1(3) – (4), MCA 2005 provide further general principles relevant in considering the question of an individual’s capacity: “(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him do so have been taken without success. (4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.”

Section 2(1) MCA 2005 defines a person who lacks capacity as “… 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 the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.” 7. Section 3(1) MCA provides that for the purpose of section 2(1), a person is “unable to make a decision” if they are unable to:

The Court of Appeal helpfully summarised the law relating to capacity, and the sequential steps to an assessment, in a recent judgment, Kenneth Johnston v Financial Ombudsman Service [2025] EWCA Civ 551. At §§38-39:

“38.

The correct approach to be adopted by a court when assessing whether a person lacks capacity was considered by the Supreme Court in A Local Authority v JB [2021] UKSC 52, [2022] AC 1322. Although the factual context was different, the approach is applicable across all areas of capacity. At paragraphs 66 to 79, Lord Stephens JSC, with whom the other Justices agreed, said:

"66.

Section 2(1) requires the court to address two questions.

Sections 3(2) – (4), MCA 2005 outlines further guidance on the application of the ‘functional test’ in section 3(1) as follows: “(2) A person is not to be regarded as unable to understand the information relevant to a decision if he is unable to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means). (3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as unable to make that decision. (4) 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.”

Section 4(3) MCA 2005 requires the person making the best interests determination to consider “whether it is likely that [P] will at some time have capacity in relation to the matter in question” and if so when. By section 4(6), the person making the best interests determination must consider (so far as is ascertainable) “[P]’s past and present wishes and feelings … (b) the beliefs and values that would be likely to influence his decision if he had capacity, and (c) the other factors that he would be likely to consider if he were able to do so.”

The material parts of sections 5 and 6 MCA 2005 provide:

“5.

(1) If a person (“D) does an act in connection with the care or treatment of another person (“P”), the act is one to which this section applies if –

(a)

before doing the act, D takes reasonable steps to establish whether P lacks capacity in relation to the matter in question, and (b) when doing the act, D reasonably believes –

(i)

that P lacks capacity in relation to the matter, and

(ii)

that it will be in P’s best interests for the act to be done.

(2)

D does not incur any liability in relation to the act that he would not have incurred if P – (a) had had capacity to consent in relation to the matter, and (b) had consented to D’s doing the act…

6.

(1) If D does an act that is intended to restrain P, it is not an act to which section 5 applies unless two further conditions are satisfied.

(2)

The first condition is that D reasonably believes that it is necessary to do the act in order to prevent harm to P.

(3)

The second is that the act is a proportionate response to –

(a)

the likelihood of P’s suffering harm, and

(b)

the seriousness of that harm.

(4)

For the purposes of this section D restrains P if he –

(a)

uses, or threatens to use, force to secure the doing of an act which P resists, or

(b)

restricts P’s liberty of movement whether or not P resists…”

Section 15 MCA 2005 provides power for the court to make declarations as follows:

In Re JB [2021] UKSC 35, Lord Stephens observed in respect of fluctuating capacity (at §64):

“Capacity may fluctuate over time, so that a person may have capacity at one time but not at another. The “material time” within section 2(1) is decision-specific (…). The question is whether P has capacity to make a specific decision at the time when it needs to be made. Ordinarily, as in this case, this will involve a general forward-looking assessment made at the date of the hearing. However, if there is evidence of fluctuating capacity then that will be an appropriate qualification to the assessment.”

In Cheshire West and Chester Council v PWK [2019] EWCOP 57, Sir Mark Hedley referenced and relied on his earlier decision in A, B, & C v X, Y, and Z [2012] EWHC 2400 (COP) wherein he distinguished isolated decision-making with decision-making within the overall context of managing one’s own affairs: “the management of affairs relates to a continuous state of affairs whose demands may be unpredictable and may occasionally be urgent.” At §25, Sir Mark Hadley concluded that it was appropriate to take a ‘longitudinal perspective’ and observed “It is the unpredictability of that anxiety and the seriousness and breadth of its impact which is decisive in this case in overturning the legal presumption of capacity.”

In Wakefield MDC and Wakefield CCG v DN and MN [2019] EWHC 2306 (Fam) (“DN”) the court concluded that it could make anticipatory declarations as to DN’s capacity to make decisions under sections 15 and 16, MCA 2005, to cover occasions when he has ‘meltdowns’ and is at that point unable to make capacitous decisions. In DN, all the parties accepted that, as a matter of fact, DN would, on balance, lose capacity to weigh decisions about his care and residence when those meltdowns occurred. In reaching his decision, Cobb J concluded: “It seems to me that the outcome of an anticipatory declaration would provide a proper legal framework for the care team, ensuring that any temporary periods of deprivation of liberty are duly authorised and thereby protecting them from civil liability.”

In A Local Authority v PG & Ors [2023] EWCOP 9, Lieven J identified a variety of challenges posed by PG’s case (§29):

“Firstly, the evidence suggests that she does at times have capacity within the terms of s. 3, but at other times she probably does not. Secondly, there is close correlation between times when she may not have capacity and the making of what would plainly be considered unwise decisions. Thirdly, there is also some correlation between her making of unwise decisions and her being intoxicated.” 17. In adopting a “longitudinal approach”, Lieven J made the following observations: “36. I am really faced with a choice between making orders that follow the line of Sir Mark Hedley in PWK, and thus taking a "longitudinal view" of PG's presentation, and which closely relates to Newton J's "macro" decisions; or that of Cobb J in DN and making anticipatory declarations in respect of when PG has the equivalent of a "meltdown"… 37. In deciding this issue I must have regard to the importance of making orders that are workable and reflect the reality of PG's "lived experience", both for the sake of PG and those caring for her… 38. My concern about making an anticipatory declaration in a case such as this, is that it would in practice be unworkable for those caring for PG. Unlike DN, PG does not have capacity in relation to decisions around her care, both when at home and in the community. Although when calm, she does at times make capacitous decisions within the meaning of section 3(1), I accept Dr King's evidence that even when at home, when she becomes anxious and emotionally dysregulated, she loses capacity. This seems to me to be a more fundamental part of her general presentation than was the case with DN.”

In Leicestershire CC v P and Another (Capacity: Anticipatory Declaration) [2024] EWCOP 53, the court concluded that it had jurisdiction to make an anticipatory declaration under s. 15(1)(c), MCA 2005 (at §137(4)), but declined to make such a declaration on the facts of that case. At §137(6), Theis J set out those factors a court will need to consider before exercising the jurisdiction under s. 15(c) to make an anticipatory declaration:

“(a)

Whether there are other ways in managing the situation, for example whether s5 MCA can be utilised. As Lady Hale made clear in N v A CCG [2017] UKSC 22 at [38]:

“… Section 5 of the 2005 Act gives a general authority, to act in relation to the care or treatment of P, to those caring for him who reasonably believe both that P lacks capacity in relation to the matter and that it will be in P's best interests for the act to be done. This will usually suffice, unless the decision is so serious that the court itself has said it must be taken to court. But if there is a dispute (or if what is to be done amounts to a deprivation of liberty for which there is no authorisation under the "deprivation of liberty safeguards" in Schedule A1 to the 2005 Act) then it may be necessary to bring the case to court”

This provision is not limited to only address emergency situations but there are clearly limits.

(b)

The need to guard against any suggestion that P's autonomy and ability to make unwise, but capacitous decisions is at risk or any suggestion that the court is making overtly protective decisions.

(c)

To carefully consider the declaration being sought, and whether the evidence establishes with sufficient clarity the circumstances in which P may lack capacity and in the event that P does the circumstances in which contingent best interest decisions would need to be made. This is to guard against the risk that if the facts on the ground were analysed contemporaneously the court may reach a different conclusion.”

In Oldham MBC v KZ and others [2024] EWCOP 72 (T3), Theis J concluded that an anticipatory order was appropriate in that case because, like DN (at §84), “the evidence here demonstrates it is clear to those who care for KZ when he becomes dysregulated so that he is likely to lose capacity. The making of an anticipatory declaration would provide a proper legal framework for the care team, ensuring that any temporary periods of deprivation of liberty are duly authorised and thereby protecting them from civil liability.”

I am grateful to all who appeared before me at the hearing on 22 May 2025 and those who have represented the parties at the earlier hearings that go back to the summer of 2024 when matters were them considered under the Inherent Jurisdiction relevant to children. In this judgment, I cannot mention them all, but they should know that their expertise and skill has been appreciated by me in what has been a complex case with a protracted history spanning two jurisdictions - that relevant to children and that relevant to adults who lack capacity.

The representation before me on 22 May 2025 was of the highest order. I have had the benefit of experienced counsel who have facilitated my digest of the law and focused decision making. I must also pay tribute to AW’s parents who have attended every hearing before me under the Inherent Jurisdiction and each of those in the Court of Protection. They have self-represented throughout. They have shown an in-depth knowledge of the papers in this case and have been as able, as those represented, to apply the relevant law to the facts of the case to enable me to make the best decisions I can for their daughter. They are understandably worried for their daughter and have advocated for her; sometimes agreeing with the professionals’ view and sometimes disagreeing. Finally, but no means least I should record that when she has wished to do so AW has joined the hearings before me when she has been able to do so and when she has wanted to participate. By the time of the final hearing before me, AW wanted to be recognised as an adult with capacity free to make her own choices.

On 22 May 2025 Dr Ince gave evidence before the court. He was called on behalf of the Official Solicitor who was still representing AW and cross examined by the other parties.

At the conclusion of his evidence there was agreement between all parties that the court ought not exercise its power to make anticipatory declarations to cover a situation where AW loses capacity in a relevant domain in the future. Dr. Ince’s evidence did not establish with sufficient clarity the circumstances in which AW may lack capacity, nor the circumstances in which contingent best interest decisions will need to be made. There was further agreement between all parties that AW’s continuing risks can be appropriately managed under the existing statutory framework in ss 5. and 6 MCA 2005, with the ‘backstop’ of an urgent application to the court available at all times if needed. The local authority was particularly aware of its ongoing obligations. 

 On 22 May 2025 I gave a brief oral judgment setting out that I agreed with the partes’ assessment of the evidence and the conclusions that they drew from it.

Having heard Dr Ince’s evidence it is plain that AW does have capacity in all relevant domains, namely:

In this case I have jurisdiction to make anticipatory declarations, but I decline to do so. Sections 5 and 6 MCA can be used to manage the circumstances of this case and any future crisis that AW may suffer. Whilst AW has put herself at risk in the past, I have reminded myself that I must guard against any suggestion that unwise decision-making is analogous to decision-making without capacity. Capacitous adults may make wise or unwise decisions. The point is that they have the capacity to choose and make informed decisions however unwise. I have reminded myself that I must guard against the protection imperative and paternalistic decision-making. I must respect AW’s autonomy. I have carefully considered whether the evidence establishes with sufficient clarity the circumstances in which AW may lack capacity and in the event that AW does, the circumstances in which contingent best interest decisions would need to be made. I have concluded based on the evidence as a whole, of which Dr Ince’s evidence is a significant part, that the evidence in this case does not provide that sufficient clarity. Accordingly, I decline to make anticipatory declarations which, on the evidence, would not be practical to implement.

In the circumstances I dismissed the applicant’s application to the Court of Protection.

AW was present for the final hearing and is aware of my decision. She is an intelligent young person who was delighted to have her capacity and thus her autonomy recognised. She remained willing to accept the support offered to her by the statutory agencies and those statutory agencies remained committed to her. AW’s parents were in agreement with my decision-making.

I have written this judgment to enable AW to have a brief record of court proceedings which were before the court for a year. During that time AW was deprived of her liberty first under the Inherent Jurisdiction relating to children (s.100 Children Act 1989) and later in the Court of Protection wherein it was declared in the interim that she lacked capacity in the relevant domains. However, once the expert evidence had been finalised and tested before the court, it became apparent that in her case the evidence did not support the presumption of capacity being displaced. AW is an adult now with capacity, able to make good and bad choices about her own future. I wished her well on 22 May 2025 and I do so again as I end this judgment.

That is my judgment.