London Borough of Camden v BW & Anor (Capacity Decisions; Reasons)

This is an appeal from a decision of HHJ Hilder, (“the Judge”) sitting in the Court of Protection on 30 January 2026. The appeal was listed as a “rolled-up” hearing, for permission to appeal and then the appeal to follow. In practice I heard the case as if permission had been granted.

The Appellant, the London Borough of Camden (“the LA”), was represented by Mr Hadden; BW, through her litigation friend, the Official Solicitor, by Ms Kelly and AW, who is BW’s sister, appeared as a litigant in person by video link.

There are four Grounds of Appeal;

Mr Hadden, who did not represent the LA before the Judge (and was instructed on this appeal at a late stage due to previous counsel not being available), dealt with Grounds Three and Four first and together. Although he did not withdraw Grounds One or Two, he accepted during the hearing that if BW did not have capacity then the order the Judge made was in BW’s best interests. He submitted that I should grant permission and allow the appeal on all Grounds and remit the matter back for a fresh decision.

BW is 27 years old. She currently lives in supported accommodation in North London, at a placement I will call X Court. She is supported under s.117 Mental Health Act 1983 (“the MHA”), having had periods of mental health detention.

BW has a complex diagnosis and presentation. There is a consensus that she has an Autism Spectrum Disorder. At various times she has been diagnosed as having a Learning Disability, but this has both varied in the severity diagnosed, and its accuracy is questioned in the most recent capacity assessment of Dr Sheehan.

It is apparent from the papers that BW can present as capable and articulate, although she has a lengthy history of becoming extremely dysregulated and exhibiting “challenging behaviour”. There are a number of references to her masking or camouflaging her autism, and lacking understanding of her behaviour, which increases her vulnerability, see for example an independent psychology report of Dr Wilson in November 2020.

BW’s birth mother used illicit substances during pregnancy and BW was born “addicted” to benzodiazepines and opiates. She was weaned off these in hospital, fostered by the W family and then adopted by them. She was recorded as experiencing language delay and a number of developmental and behavioural issues from a young age. She was first diagnosed with atypical Autism in 2010. There are references to selective mutism across the years.

She was under the LA’s Children Disability Team until her 18^th birthday, having had a very disrupted education. The papers refer to her having been excluded from education on a number of occasions by reason of aggressive and antisocial behaviour.

It is her family’s view that BW did not receive the support from the LA that she was entitled to post 18 years old and they are extremely critical of the LA. The family, including AW, her sister, have been very strong advocates for BW over the years, although the relationship has at times been complicated.

In the period 2018-2021 there are frequent references to incidents of self-neglect, physical aggression and police interventions.

In 2020 BW travelled to Ireland to meet her maternal birth family. When she returned to the UK she was housed in a supported living placement for a year, but was then admitted to a psychiatric hospital for almost a year. There was a further admission and when she was again discharged to supported living, AW started proceedings in the Court of Protection in late 2022. These proceedings have therefore been going on for almost four years.

It is not necessary to set out a very detailed chronology, however some themes emerge. There is a consistent record of BW being vulnerable to sexual exploitation and abuse, contacting men on the internet and then being exploited. There are also a number of occasions when she has been arrested for assault. She was detained in HMP Bronzefield three times between 2020-2023. In September 2023 she was assessed as being unfit to plead or stand trial.

BW has been assessed by many different psychologists and psychiatrists over the years. Apart from the diagnosis of autism, it is apparent that her presentation is complex and no one clear diagnosis is established. Although Dr Sheehan, whose report is at the heart of the present case, opined that he does not consider BW to have a learning disability, a number of his predecessors have diagnosed her with such.

In April 2023 she was assessed by Dr Christopher Ince, for the Court of Protection proceedings. He opined that she did not have capacity to litigate; make decisions regarding her care, accommodation and support needs; contact with others; access to the internet and social media; and to manage her property and affairs. Those views were accepted by the Court and are not now challenged by the LA. Dr Ince later assessed that BW had capacity to engage in sexual relations.

In May 2024, BW travelled to Ireland on an unplanned visit to her maternal uncle. She told AW that when her uncle was not in she went into the house of a neighbour who raped and sexually assaulted her. AW had to contact the Garda because the man was holding BW against her will.

In early 2025 BW was subject to an order of the Court of Protection authorising her deprivation of liberty in accommodation provided by the LA. The police were frequently called to the premises.

She moved to her present accommodation in June 2025. In July 2025 she told the LA’s Learning Disability team (CLDS) that she did not want AW involved, and questioned AW’s use of BW’s funds. I note that there is no objective evidence supporting this suggestion.

Between July-October 2025 BW had a series of mental health crises with delusional beliefs, and decreased functioning. Her behaviour was extremely challenging, including assaulting staff and attempting to abscond. She refused to take her oral medication, save on one occasion. In August 2025 her CLDS psychiatrist, Dr Hassiotis said that in her view BW had capacity in respect of her psychotropic medication. This was in the context of AW and the Official Solicitor raising whether BW should be put on psychotropic medication, discussed below.

Between October and December 2025, BW was admitted to mental hospital, initially under s.2 MHA, and then as a voluntary patient.

Dr Sheehan interviewed BW in December 2025. He produced a report on 22 December 2025 and then answered detailed written questions. In respect of BW’s history of taking psychotropic medication, he said:

Dr Sheehan asked BW a number of questions about taking her medication in his assessment:

“13.8.4

I asked [BW] what could happen if she doesn’t take medication and she wrote, “I get angry.” I asked her what might happen then and she wrote, “sometimes I hit people.” I checked later with her by again asking what might happen if she does not take medication and she wrote “I might get annoyed.”

13.8.5

I asked her what could happen if she hit people and she wrote, “arrest.” I asked if there was anything else that could happen and she wrote, “prison or mental hospital.” I asked what these things were like and she wrote, “horrible.” I asked if she wanted these things to happen and she wrote, “no.” I asked her if these things are less likely to happen if she takes medication and she wrote, “yes.”

13.8.6

I asked [BW] if there were any downsides to taking medication and she wrote, “side-effects.” I asked if she knew any side-effects of Aripiprazole and she wrote, “it stopped my periods.” I asked if her periods stopping was important to her and she wrote “yes.” She did not know any other possible side-effects of Aripiprazole.

13.8.7

I asked [BW] if there were any alternatives to Aripiprazole. She wrote, “not Risperidone, my arm got stiff.””

When he asked her about sharing information with AW she said;

“13.9.4

I asked [BW] if there were other benefits to sharing information with [AW] and she wrote, “no”. I said that sometimes people need someone else to give information about them and [BW] responded by writing, “I can talk to people myself.” I said that sometimes when people are not well they cannot explain everything about their needs and if [AW] could do that for her, and she wrote, “yes”.

13.9.5

I asked [BW] if [AW] has information that other people do not have and she wrote, “like what”. I said that family members sometimes have a good understanding of what’s important for someone, what they like, and how they need to be treated. [BW] wrote, “she’s my adopted sister”.

…

13.9.7

I asked [BW] if there were any downsides of not sharing information and she did not think there would be. I asked if she would lose anything if [AW] was not involved and she wrote, “no” and followed this with, “can she not be involved in my care anymore”.”

Dr Sheehan concluded that BW had capacity in both regards. In respect of medication, he said;

“15.3.4

Weigh-up: [BW] understands that Aripiprazole helps her to stay calm, which she identifies as a benefit. She was able to consider what might happen if she did not take the medication, linking this to increased risk of aggression and to other negative outcomes that may then arise. [BW] was able to weigh these benefits against adverse side-effects, noting that amenorrhoea is particularly significant to her given her aspiration to have a child. She was able to explain her reasoning for preferring an injection over oral medication. My view is that [BW] demonstrates the capacity to weigh potential benefits of taking Aripiprazole against the associated risks, to consider potential consequences of not taking the medication, and make a decision grounded in her personal values and circumstances.

In respect of sharing information with AW, he said;

“15.5.4

Weigh-up: [BW] can consider benefits of sharing information with [AW] alongside her view that [AW] has too much influence on her life and that their opinions or values may not always align, and her wider desire for independence and autonomy. While it has been suggested that [BW] may under-estimate her support needs, she demonstrates an awareness of when to seek help from others and can identify people other than [AW] who may help her to manage her health and welfare. She also recognizes situations where sharing information with [AW] may be practical or beneficial to share information with [AW] and has indicated, and demonstrated, that she would share information under such circumstances.

The matter was listed by the Judge on 30 January 2026 for “final determination of BW’s capacity (a) to consent to psychotropic medication and (b) to make decisions about information sharing with AW”, with a time estimate of a day. At the hearing Dr Sheehan was only available for a limited period and questioning was necessarily curtailed to fit into his availability.

The Judge explained that there was considerable urgency because the clinicians thought BW needed her depot injection imminently, see J3.

The Judge, who is enormously experienced in the Court of Protection, reminded herself of the terms of the Mental Capacity Act 2005 at J8-12 and there is no suggestion that she misdirected herself. At J21 onwards she set out her conclusions;

“My conclusions

[21] Firstly, it is part of the information relevant to making a decision about depot medication that not having it and the consequential prospect for deterioration on BW's ability to avoid incidents of aggressive behaviour are likely to bring about the end of BW's current placement at [Address A]. That information was just wholly missing from Dr Sheehan's assessment. As the depot time approaches, incidents of aggression have increased. Insofar as Dr Sheehan said he was ‘not sure’ about the change of active level and medication as the depot time approaches, in my judgment his hesitant view must be considered in the light of the prescribing clinician's view that another dose is required.

[22] Secondly, it is part of the information relevant to making decisions about information sharing with AW that, without full information, her ability to support BW by input into the planning and delivery of the care arrangements which necessarily have to be made by others is likely to be adversely affected. It is relevant to the question of information sharing that BW's care arrangements have to be determined by others in her best interest. So when Dr Sheehan acknowledges, as he did orally, that he did not explore with BW her much-expressed view that she does not need anything like her current restrictive care arrangements to keep her safe, that amounts to a significant deficit in the process of assessment.

[23] Ms Kelly asked the question: "What is it about BW's relationship with [AW] which gives rise to a distinction between her or others who have responsibility towards the care arrangements?" (I am conscious that that is a paraphrase of a whole line of questions, but I think that it captures the gist.) Dr Sheehan identified that relationships with family members may be different to relationships with professionals, but he did not identify how BW's wishes about the flow of information to AW are different from consideration of her capacity at the time.

[24] This is a very difficult case. BW's unique profile of abilities and capacities makes it very difficult for her to navigate life and also for others to assist her. Again, I am acutely conscious of the statutory assumption of capacity, of the need to avoid a protective imperative, of the need not to set a threshold unfairly high, but I am not satisfied that Dr Sheehan's conclusions adequately reflect the position. I agree with BW's own representatives that the assessment process is fatally undermined by superficiality in key respects.

[25] Taking into account the full range of capacity assessments over time and the evidence presently of BW's carers as set out in the social worker's statement and indeed by AW, it is my judgment that BW does not understand the relevant information for either of the decisions currently under consideration, and is not able to use or weigh those relevant factors; and that both of those factors are due to the impairment attributable to her current diagnosis of autism.

[26] Accordingly, today, I make a declaration that BW lacks capacity in each of the domains which I have been considering.”

Section 1 of the MCA provides:

Section 2 of the MCA provides:

Section 3 of the MCA provides:

The test of whether an appeal judge shall allow an appeal under the Court of Protection Rules 2017 is whether the first instance judge was “wrong” or “unjust, because of a serious procedural or other irregularity in the proceedings”(see r.20.14(3), CoPR 2017). The Judge heard oral evidence, and it is relevant to have regard to Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67, [2014] AC 591 where Lady Hale observed the following in relation to an appeal against a best interests decision at [42]:

“if the judge has correctly directed himself as to the law … an appellate court can only interfere with his decision if satisfied that it was wrong: Re B (A Child) (Care Proceedings: Appeal) [2013] UKSC 33, [2013] 1 WLR 1911. In a case as sensitive and difficult as this, whichever way the judge's decision goes, an appellate court should be very slow to conclude that he was wrong.”

Most of the legal principles under the MCA are not contentious and have been stated in numerous cases. The leading case on capacity is now A Local Authority v JB [2022] AC 1322 (“JB”) in the Supreme Court.

The key principles are set out in s.1 MCA and, for present purposes, the most critical ones are that there is a presumption in favour of capacity and that a person should not be treated as unable to make a decision merely because it is an unwise decision s.1(4).

The following points which are relevant to the present case emerge from JB:

The opening sentence of [74] of JBis particularly important in the present case;

“The importance of P's ability under section 3(1)(a) MCA to understand information relevant to a decision is also specifically affected by whether there could be “serious grave consequences” flowing from the decision. Paragraph 4.19 of the Mental Capacity Act 2005 Code of Practice provides: “If a decision could have serious or grave consequences, it is even more important that a person understands the information relevant to that decision….”

In Johnston v Financial Ombudsman Service [2025] EWCA Civ 551 at Baker LJ identified three further relevant general principles at [39]:

The Grounds largely focus on the Judge’s reasons and whether they were adequate in the circumstances. The approach of the courts to any reasons challenge to a justiciable decision is helpfully encapsulated by Lord Brown in South Bucks v Porter (No. 2) [2004] 1 WLR 1953. Although the context is wholly different the approach is wholly applicable;

“36.

The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration….Decision letters [here judgments] must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”

In the context of appeal against final orders made at the conclusion of care proceedings, in Re N-S (Children)[2017] EWCA Civ 1121McFarlane LJ identified an additional purpose to provide adequate reasons that may lie beyond the instant proceedings at [30]:

“The need for a judge to provide an adequate explanation of his or her analysis and the reasoning that supports the order that is to be made at the conclusion of a case relating to children is well established. Not only is the presentation of adequate reasoning of immediate importance to the adult parties in the proceedings (in particular the party who has failed to persuade the judge to follow an alternative course), it is also likely to be important for those professionals and others judges who may have to rely upon and implement the decision in due course and it may be a source of valuable information and insight for the child and his or her carers in the years ahead. In addition, of course, inadequate reasoning is a serious impediment to any consideration of the merits of the judge’s decision within the appellate process.”

Ground Four rests on whether the Judge gave adequate reasons for departing from the view of Dr Sheehan. Mr Hadden relies on University Hospital Birmingham vHemachandran [2024] EWCA Civ 896 (“Hemachandran”) where King LJ said at [133] and [135];

“133.That judges are entitled to disagree with an expert witness needs no rehearsing. In In reG and B (Fact-Finding Hearing) [2009] 1 FLR 1145, Wall LJ (“AB v BG”) said at para 17 that that proposition has an “equally obvious corollary”. There must, he said, be “material upon which the judge in question can safely found his or her disagreement, and he or she must fully explain the reasons for rejecting the expert's evidence.

…

135.

Mr Quintavalle in oral argument, sought to go significantly further than either AB v BG or King's College. He submitted that a judge cannot disagree with the opinion of an expert absent there being available to the court other alternative expert medical evidence in support of the judge's view. In other words, Mr Quintavalle appeared to submit that a judge may not disagree with a unanimous view of experts, but may only decide as between more than one opposing expert view. That cannot be right, although it is undoubtedly the case that where the judge disagrees with a unanimous view which has been expressed by appropriate experts, a reader will look carefully to understand the judge's “full explanation” for having rejected that common view and for the identification by the judge of the material upon which their disagreement is based.”

Mr Hadden’s submissions under Grounds Three and Four, that the judgment contains inadequate reasons, rests primarily on two points. Firstly, he relies on the statutory presumption in favour of capacity and therefore the burden of rebutting that presumption resting on the person asserting that BW did not have capacity. Therefore, he submits that if the Judge was finding BW did not have capacity, particularly where Dr Sheehan had opined that she did have capacity, there was a particular onus or requirement on the standard of reasons provided. Secondly, he submits when the Judge was concluding contrary to the view of the expert, she needed to have “sound” reasons. This meant in practice that her reasons were required to be more detailed and extensive. He relied on the fact that there was no contrary expert or clinical evidence to counter the view of Dr Sheehan.

There was a complicated picture of BW’s capacity in various respects, which emerged from the history of the case. Although she had been found not to have capacity in six respects after Dr Ince’s report, she had been found to have capacity to engage in sexual relationships. She had also been considered to have capacity in respect of a Care and Treatment Review in November 2025 (although I note that this decision was relevant to one very short meeting and no formal assessment was conducted).

Mr Hadden referred to the caselaw that makes clear that capacity is decision specific. He placed considerable reliance on [34] of MacDonald J’s judgment in Kings College Hospital v C and V [2016] COPLR 50 where it was said;

“[34] Within this context, it is important to remember that for a person to be found to lack capacity there must be a causal connection between being unable to make a decision by reason of one or more of the functional elements set out in s 3(1) of the Act and the ‘impairment of, or a disturbance in the functioning of, the mind or brain’ required by s 2(1) of the Act.”

Mr Hadden submitted that Judge Hilder had failed to explain how BW’s impairment was preventing her from making the relevant decisions. He further suggested that the Judge had fallen into the error set out in CC v KK and SSTC [2012] COPLR 627 at [25];

“[25] There is a further point, to which I alluded in an earlier decision in PH v A Local Authority and Others [2011] EWHC 1704 (Fam), [2012] COPLR 128. In assessing the evidence, the court must be aware of the difficulties which may arise as a result of the close professional relationship between the clinicians and professionals treating and working with, P. In PH, I drew attention to a potential risk, identified by Ryder J in Oldham Metropolitan Borough Council v GW and PW [2007] EWHC 136 (Fam), [2007] 2 FLR 597, another case brought under Part IV of the Children Act 1989, that the professionals and the court may be unduly influenced by what Ryder J called the ‘child protection imperative’, meaning ‘the need to protect a vulnerable child’ that, for perfectly understandable reasons, may influence the thinking of professionals involved in caring for the child. Equally, in cases of vulnerable adults, there is a risk that all professionals involved with treating and helping that person – including, of course, a judge in the Court of Protection – may feel drawn towards an outcome that is more protective of the adult and thus, in certain circumstances, fail to carry out an assessment of capacity that is detached and objective. On the other hand, the court must be equally careful not to be influenced by sympathy for a person’s wholly understandable wish to return home.”

Mr Hadden suggested that the very fact that the Judge had been involved in BW’s case for some time led her to be motivated by the “protection imperative”, given the apparent benefits to BW of taking the psychotropic medication. The Judge had therefore not applied the capacity test lawfully and had not explained her reasoning on this point sufficiently.

Dr Sheehan had spoken to all the relevant professionals and to the family members, and had conducted a very thorough review. His report was then supplemented by responses to exceptionally detailed questions from the Official Solicitor.

Mr Hadden accepted that Dr Sheehan in his report did not expressly deal with the consequences for BW’s accommodation if she did not continue to take the psychotropic medication. He submitted that that was requiring too much specificity in the capacity assessment, and the issue of accommodation had not been raised in the letter of instruction. Further, it was not a condition of her being able to live at the accommodation, that BW should take the medication.

Ground Four focuses on the alleged failure of the Judge to give adequate reasons for not accepting the views of Dr Sheehan. Although Mr Hadden accepted that it was open to the Judge to depart from the view of the expert on capacity, he relied on Hemachandran for the proposition that she would have had to give a “full explanation” and had failed to do so.

Ms Kelly submits that the reasons were wholly adequate on the facts of the case. BW had been found to lack capacity in respect of a number of areas, after Dr Ince’s report, including in respect of her care needs. The hearing was held on an urgent basis, and the Judge (and the parties) were very familiar with the case. When the LA asked for further reasons on 5 February 2026, the request was wholly unparticularised.

The factors that the Judge pointed to for finding that BW lacked capacity were relevant material considerations to the questions she had to ask herself. Dr Sheehan had not reflected on why information was shared with BW’s family, and the foreseeable consequences of withholding that information. Dr Sheehan’s report focused almost entirely on BW’s wishes and feelings on the subject, rather than the consequences which were central to the capacity issue.

Grounds 1 and 2 relate to the declaration that it was in BW’s best interest to take the medication. Mr Hadden relied on the fact that the hearing was only listed to consider the issue of BW’s capacity on the two matters, and not on best interests. Dr Sheehan had not been instructed to consider best interests.

The LA’s Skeleton Argument, not drafted by Mr Hadden, asserts that the LA’s professional staff “have been greatly concerned as to the Court’s handling of these matters. There is a clear logic to BW’s decisions.” The logic being suggested is that BW wishes to have a baby “and is rightly concerned that taking this medication may impact upon that: which is correct….” These are very natural and understandable human desires; and ones which BW very understandably expects to enjoy herself. She has not wished to be inhibited in these wishes by taking medication which may affect this”.

The Skeleton argues that “there was nowhere near enough basis to deny BW her decision making autonomy over matters as sensitive and personal as her desire to have a baby…”.

As I have said, although Mr Hadden did not withdraw Grounds 1 and 2, he did on instruction accept during the course of the hearing that it was in BW’s best interests to continue to take the medication. I deal with the argument raised in the Skeleton because of the importance to decision making relating to BW going forward, but also the scope of “reasonably foreseeable consequences” in s.3(4) MCA, on the facts of this case.

On Grounds 1 and 2 Ms Kelly pointed to the transcript to establish that after judgment on capacity had been given all parties agreed that it would be beneficial for BW to hear that the Judge’s view was that it was in her best interests to take the medication. The treating clinician had been very concerned to avoid having to physically compel BW to take the medication, and was of the clear view that to do so would be contrary to her interests. It was therefore considered to be helpful if the Court made a declaration, which it did. The result was that BW voluntarily agreed to take the medication. The LA did not object to this course of action during the hearing.

There was clear evidence that the medication was helping BW. Indeed, there was no clinical disagreement that it was in her best interests to take it. Ms Adam, the LA social worker, in her witness statement said;

“Overall, while BW’s presentation has improved, X Homes staff attribute this primarily to the administration of the Depot injection. The home manager has advised that, despite this improvement, some behaviours remain challenging. Staff have reported that as the effects of the Depot injection begin to wear off, BW’s presentation has started to revert towards her previous baseline. This has included increased impatience, heightened verbal aggression, reduced responsiveness to prompts, and more inconsistent engagement with personal care, despite regular encouragement from staff.’

[…]

To date, communication between X Homes staff and BW indicates that she is willing to consider continuing with medication, which represents a positive development. During a professionals’ meeting on 16 January 2026, BW confirmed that she intends to receive the next Depot injection, and stated that she feels better when taking medication.’ [F8-9]

‘X Homes’ position is that whilst waiting for the wearable technology to arrive on by 26 January 2025, they are working to support BW in understanding the benefits of taking mood stabilising medication either orally or via injection. During conversations with X staff, BW appeared amenable to taking her second Depot injection at the beginning of February 2026. Thereafter, if she hastaken her medication and her presentation is stable, it will provide two months during which the staff will

plan for the implementation of the stepdown plan and TZ plan”

Dr Sheehan had himself stated that “There is a general acceptance that antipsychotic medication has been effective in reduction [BW] aggression and irritability.

Ms Kelly submits that the LA appeal on the finding that it was in BW’s best interests to take the medication is surprising given its own evidence, and where it was accepted that the making of the declaration was helpful in encouraging BW to accept medication without compulsion. She says in her Skeleton Argument that the suggestion that it might have been in BW’s best interests to decline the medication because she wanted to have a baby is “alarming”, given the likely impact on her placement and the virtual certainty that the baby would have been removed at birth. Ms Kelly asserts that the argument that it would have been in BW’s best interests to forgo the medication for this reason was not put forward by the LA at the hearing.

For these reasons she submits on Ground One that there was no unfair process; and on Ground Two that the parties were fully aware of the reasons why it was in BW’s best interest to take the medication and no objection was taken to the course adopted by the LA.

Grounds 3 and 4 are both reasons challenges to the decision that BW did not have capacity in respect of decisions concerning the psychotropic medication and information sharing with her family. The standard of reasons is that encapsulated by Lord Brown at [36] in South Bucks v Porter (no 2). The reasons must explain to a reasonably informed reader why the Judge considered BW did not have capacity. In doing so they must cover the principal issues, here the statutory requirements of the MCA, and they must show why the Judge departed from the view of the expert, Dr Sheehan. However, they are addressed to the parties who are familiar with the case; they do not have to be lengthy; and they do not have to recite all or even large parts of the evidence.

Mr Hadden in effect submits that there was an enhanced duty in respect of reasons because of the presumption in favour of capacity. His argument is that if the Judge was going to find that BW did not have capacity, then given the statutory presumption she had to explain her reasons particularly clearly. In my view, this argument is not correct. The Judge obviously has to apply the law correctly, but there is no suggestion that she did not do so, and no such argument was advanced by Mr Hadden.

I note that the Skeleton Argument says: “the Judge displaced the presumption of capacity…” However, Mr Hadden did not pursue this argument, and it is in my view hopeless, particularly given that at J24 the Judge expressly referred to the statutory assumption of capacity. Plainly the Judge was well aware of the statutory presumption and applied it to the case.

The standard of reasons remains the same whatever the issue, or where the burden lies, it remains to provide clear and intelligible reasons for the conclusions reached.

The reasons here achieved those requirements. At the heart of the issue in the case was whether BW understood and could weigh up the information which was relevant to the decisions about medication and sharing information, see s.3(1)(a) and (c) of the MCA. Central to the Judge’s decision was the requirement in s.3(4) that a person needs to be able to understand the “reasonably foreseeable consequences” of making the decision. A reasonably foreseeable consequence of BW not taking the medication was, in the Judge’s view, that she would lose her current placement, see J21. The Judge was correct to take this into account and give it considerable weight. The placement had expressly stated that if there was another incident of aggression to staff BW would be asked to leave.

I do not accept that this consequence was too remote for it to be relevant to the conclusion that BW did not have capacity. Firstly, that was a decision for the Judge, who heard the evidence, subject only to appeal if her judgement was wrong. Secondly, in my view, the likely loss of the placement was an obvious, direct and reasonably foreseeable consequence of BW stopping the medication, becoming aggressive and being required to leave her current placement. Further, such a consequence was likely to have disastrous consequences for BW given her history of homelessness, periods in prison and periods of compulsory detention under the MHA. The words of Lord Stephens in JB at [74] are particularly pertinent here because the loss of accommodation was a serious and grave consequence that it was important that BW could understand. The same was true of the potential loss of support/advocacy by AW if she did not have all the relevant information.

The Judge was correct to say that Dr Sheehan had not considered the potential consequence of the loss of the placement in his report and had not asked BW about it. He had therefore failed to weigh up a highly material matter when reaching his conclusion on capacity. For the matter to be relevant, for it to be open to the Judge to rely on it, it was not necessary that it be referred to in the letter of instruction. Dr Sheehan was instructed to assess capacity, and he needed to consider what were the reasonably foreseeable consequences of the decision in question.

Although the Judge’s reasons are short, she dealt with the important critical issue, whether BW could weigh up the information relevant to the decision about her medication, including the likely consequence of her deciding not to take it.

The same analysis applies to the decision about sharing information with AW. Dr Sheehan did not explore with BW the likely consequences of AW not being able to advocate on her behalf, and what the Judge plainly viewed as the lack of realism around BW’s view that she did not need the current care arrangements. This was an entirely valid concern given that BW had been found not to have capacity in respect of assessing her care needs. Again, this amounts to failing to consider and weigh up the likely consequences of the decision not to share information with AW, and the impact on the provision of the care she undoubtedly needed.

There was a lack of assessment in Dr Sheehan’s report, as the Judge states at J23, as to how BW’s lack of capacity in relation to decisions about her care, which was not disputed, related to a finding that she had capacity to decide AW should not have information shared with her. With all respect to Dr Sheehan, the statement that relationships with family members may be different to those with professionals, misses the point that the history strongly suggested that BW’s family, and AW in particular, had been critical in ensuring that BW received the care support she needed and was entitled to. BW was adamant that she did not want AW to be given information about her care, but the Judge was entitled to conclude that BW was unable to weigh up the consequences of that decision.

Mr Hadden submits that the Judge has acted pursuant to “the protection imperative”, rather than properly considering BW’s capacity to make decisions, even if they are unwise. He, and previous counsel, suggest that the Judge has failed to apply the principle in s.1(4) that the fact a person makes an unwise decision does not mean that they do not have capacity. He refers to the judgment of

The Judge is the Senior Court of Protection judge, and extremely experienced in this jurisdiction. There is nothing in the judgment to suggest that she has confused an unwise decision with a finding of lack of capacity. It is clear from the judgment that she found BW not to have capacity because she concluded that BW did not understand the reasonably foreseeable consequences of her decisions.

It is also relevant that Dr Sheehan put great weight on BW’s desire to have a baby, and that being the reason behind her wish not take psychotropic medication. However, as the Official Solicitor points out in her Skeleton Argument, Dr Sheehan did not consider, or discuss with BW, the reasonably foreseeable consequence that she would not be able to keep or care for the baby.

The Skeleton argues that the Judge was wrong to rely on the earlier capacity assessment of Dr Ince. However, the Judge had to consider all the evidence before her. There was considerable tension between Dr Sheehan’s conclusions on capacity and the earlier conclusions of Dr Ince which had been accepted by the Court and were not being challenged. The Judge was fully entitled to have regard to the totality of the evidence, and her own considerable experience of the case and knowledge of BW.

Ground 4 focuses on the Judge’s alleged lack of reasons for departing from Dr Sheehan’s recommendation. Mr Hadden submits where the Judge was disagreeing with the expert on capacity, she had to give further and more detailed reasons. The Skeleton says that if the Judge was to depart from the expert “this required the clearest of bases and explanations”. I note that there is no authority given for this proposition and Mr Hadden could not point me to one. Mr Hadden relies on Hemachandran where the Court of Appeal overturned a first instance decision where the Judge had determined capacity contrary to the consensus view of all the experts. It is relevant in that case that there was such a consensus view, whereas here there was one expert, who as the Judge explained, had not taken into account some of the key considerations that were relevant under the tests in the MCA.

There is no doubt that the decision as to capacity is one for the Judge, and the Judge is fully entitled to depart from the capacity assessment, whoever it is undertaken by.

As Ms Kelly submits it was not the Judge’s job to critique Dr Sheehan’s report. She had to reach a decision on capacity taking into account all the relevant evidence, including her own knowledge of BW. A fair reading of the judgment makes it perfectly clear why the Judge departed from Dr Sheehan’s views and what factors she took into account.

Ground One is that there was a lack of fair process in respect of the best interests decision. The essence of the argument is that the case was listed to deal with capacity and not best interests. It is important to note that the Judge did not make an order in respect of best interests, but rather made a declaration under s.15 MCA that, “it is in BW’s best interests to have the Aripiprazole medication she has been prescribed for her mental health”.

As I have explained above, it was the general view at the hearing that if the Judge found that BW did not have capacity, then it would help her to be persuaded to voluntarily take the medication if she was told that the Judge thought she should take it. The LA could then put together a plan for potential compulsory medication if BW did not co-operate. The LA did not object to this course.

On the broader point as to whether it was in BW’s best interests to take the medication recommended by her treating psychiatrist, the Official Solicitor expressed considerable surprise at the stance taken by the LA in its Skeleton Argument. There appeared to be no doubt, either in the social worker’s witness statement or in Dr Sheehan’s report, that the evidence strongly suggested that the medication provided a substantial benefit in stabilising her, and improving her quality of life. The suggestion in the Skeleton Argument that it would be in her best interests to stop the medication so that she could become pregnant, given her very recent forensic history and the obvious danger of a relapse if she did not take the medication, is a very surprising one. Ms Kelly points out that this suggestion was not supported by any of the LA’s professional evidence or anyone else involved in BW’s life.

In oral argument Mr Hadden accepted that it was in BW’s best interests to take the medication.

In my view there was nothing unfair about the process. The Judge was taking a P centred approach. As she had found BW did not have capacity it was plainly not in BW’s interests not to have to be forcibly medicated if that could be avoided. Making the declaration was itself in BW’s best interests and that course was not actually opposed by the LA at the hearing. If the LA were seriously going to argue that it was not in BW’s best interests to take the medication because of her wish to have a baby, then the LA would have to produce evidence to that effect, including dealing with the very obvious issues about care for any baby if born.

Ground 2 is that the Judge failed to give adequate reasons for the best interests decision. This Ground is unarguable for the reasons set out above. The reasons for concluding that it was in BW’s best interests to take the medication were clear, overwhelming and known to all the parties. The Judge was well aware of BW’s wishes and feelings on the subject. There was no evidence that it was in BW’s best interests not to take the medication. In those circumstances there was no duty on the Judge to spell out why it remained in BW’s best interests to take the medication, even in the light of her wish to have a baby.