Supporting Decision-Making When Capacity Varies

21 January, 2025 4 minutes reading time

Oldham v KZ and the Challenges of Fluctuating Capacity

The recent case of Oldham Metropolitan Borough Council v KZ & Ors [2024] EWCOP 72 (T3) highlights the intricate legal challenges surrounding fluctuating capacity. This case, concerning a young deaf man with intermittent capacity, underlines the difficulties faced by the Court of Protection and legal practitioners when an individual’s ability to make decisions changes over time.

The Background

KZ, a 20-year-old who has had profound deafness since birth, has exhibited fluctuating capacity in several areas. These include his residence, care, and contact with others. While initially assessed as lacking capacity across the board, a subsequent evaluation revealed a much more nuanced picture. KZ can make informed decisions when calm, but his capacity wanes when distressed.

Key Takeaways

The judgment in this case clearly shows that dynamic, ongoing capacity assessment is essential, particularly for individuals with conditions that may impact their decision-making abilities. A one-time evaluation only provides a snapshot of a person’s capacity. Consequently, it may not accurately reflect their ongoing decision-making ability, particularly when their condition fluctuates.

In KZ’s case, his capacity varied depending on his emotional state. With regular reassessments, KZ would receive support that reflected his current understanding and ability to make informed choices. Furthermore, the judgment emphasises the need for specialised expertise in assessing capacity, particularly when communication barriers, such as deafness, exist.

Who Might Experience Fluctuating Capacity?

It’s important to recognise that fluctuating capacity can arise from various conditions and circumstances. Individuals diagnosed with enduring mental health illnesses such as paranoid schizophrenia and personality disorders may experience periods of lucidity interspersed with periods of psychosis.

Similarly, those with neurological conditions like dementia or acquired brain injuries may have good days and bad days, affecting their ability to make decisions consistently. The effects of a brain injury can vary greatly depending on the severity and location of the injury, and individuals may experience fluctuations in their cognitive abilities, including memory, attention, and decision-making. Substance misuse can also significantly impair cognitive function and lead to fluctuating capacity.

Recognising the diverse range of situations where capacity can vary is crucial for ensuring appropriate support and safeguards. 

The Mental Capacity Act 2005

The Mental Capacity Act 2005 (MCA) provides a robust framework for determining capacity and safeguarding the rights of those who may lack it. However, the MCA doesn’t explicitly address the issue of fluctuating capacity. This lack of explicit guidance leaves room for interpretation and poses challenges in cases like KZ.

While the MCA offers guidance on assessing capacity at a specific point in time, it doesn’t provide clear-cut answers for situations where capacity fluctuates. This ambiguity necessitates a flexible and sensitive approach, prioritising the individual’s autonomy and right to make decisions whenever possible.

Supporting Decision-Making

The paramount concern in cases of fluctuating capacity is ensuring the individual is afforded every opportunity to make their own decisions. This requires a multifaceted approach, including:

1. Regular capacity assessments to track changes in an individual’s capacity and tailor support accordingly.

2. Clear communication and understanding to enable informed decision-making.

3. Tailored support that adapts to the individual’s fluctuating needs so they can make decisions when possible.

4. When capacity is lacking, decisions must be made in the individual’s best interests, considering their wishes, feelings, values, and beliefs.

The Role of Case Law

Undoubtedly, case law is vital in shaping our understanding of fluctuating capacity and guiding best practices. While the MCA provides a foundation, cases like KZ help to refine our approach and ensure the legal framework remains relevant and responsive to the evolving needs of individuals with fluctuating capacities.

Implications

The case of KZ serves as a poignant reminder of the complexities surrounding fluctuating capacity. As legal practitioners and the Court of Protection continue to grapple with these challenges, it’s crucial to advocate for greater clarity within the legal framework and foster collaborative efforts to support individuals in making their own decisions whenever possible.

By prioritising individual autonomy, promoting accessible communication, and providing tailored support, we can empower those with fluctuating capacities to live fulfilling lives and exercise their right to self-determination.

If you need support or advice on matters concerning mental capacity or Court of Protection matters, please do not hesitate to contact us. We’re here to help.

Please note that all views, comments or opinions expressed are for information only and do not constitute and should not be interpreted as being comprehensive or as giving legal advice. No one should seek to rely or act upon, or refrain from acting upon, the views, comments or opinions expressed herein without first obtaining specialist, professional or independent advice. While every effort has been made to ensure accuracy, Curtis Parkinson cannot be held liable for any errors, omissions or inaccuracies.

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