There is a growing awareness of the possibility that someone might have fluctuating capacity to make certain decisions. But are the systems we have in place equipped to deal with those people?


Capacity is briefly explained in an earlier blog. Capacity is required for decisions in all areas of life. We are focusing on care, treatment and accommodation (‘health and welfare’) as that corresponds with the work we do.

If someone, ‘P’, is found to lack capacity in a certain area, they can no longer make decisions on their own; whilst P’s wishes and feelings are taken into account as an important factor, the ultimate decision is made by a different decision maker, in P’s ‘best interests’.

A finding of incapacity can sometimes be helpful for P; P is provided with a lot more protection and is entitled to an advocate/ representative to help them make their views known.

It is clear that a finding whether P has capacity or not, has a great impact on their life going forward.

Fluctuating capacity

But what if it is not as clear cut as yes/no? In some situations, P sometimes has capacity and sometimes has not.

Fluctuating capacity can be caused by multiple reasons; for example, a woman with autistic spectrum disorder may lose capacity only when she becomes highly anxious; a man with diabetes may lose capacity only when his blood sugars are too high. In many situations, it may not be possible to identify in advance when someone will lose capacity.

On the one hand, according to the principles of the Mental Capacity Act 2005, we want to empower people as much as possible to be able to make capacious decisions – see the approach of the assessors in X v A Local Authority [2014] EWCOP 29 who considered they should assess X “at his best” which led to the judge concluding that X had regained sufficient capacity.

On the other hand, we want to ensure that vulnerable people, on the ‘edge’ of capacity as it were, have the right level of protection – see the concerns in MB v Surrey County Council [2017] EWCOP B27 that MB, on the court finding that he had capacity, should still have the support of an advocate to support him in the decision-making process.

Recent case law

There is very little case law in this area. In the two cases above, the court ended up coming down on the side of finding capacity, therefore avoiding the requirement to examine the possibility of fluctuating capacity.

However, judicial guidance may be on its way. On 29 June 2018, judgement was given in the case of Royal Borough of Greenwich v CDM [2018] EWCOP 15.

CDM is a diabetic with a personality disorder who was living at home with her pets following the death of her husband. However, her unstable diabetes and self-neglect made it necessary for her lower leg to be amputated. At home, CDM refused to use a zimmer frame, walking stick or crutches, in favour of an upside-down broom. She refused to sleep in her bedroom following her husband’s death. She refused to use her commode but could not access the toilet in her wheelchair, increasing her risk of falls. She could not properly clean up after her three dogs and cat. As a result, CDM was subject to multiple ambulance call-outs and her high risk of self-neglect was flagged up.

Following an admission to hospital, it was concluded that CDM lacked capacity and a best interest decision was made to discharge her to a nursing home. CDM challenged this.

The judge was asked to make several findings on capacity, we are looking at his finding on CDM’s capacity to decide on her care and treatment. After hearing evidence from an expert psychiatrist, a social worker, and CDM herself, the judge concluded that CDM had capacity to self-care but had fluctuating capacity in relation to consent to treatment. In finding fluctuation capacity, the judge stated:

“I therefore accept Dr Series’ evidence that when making appropriate decisions she has capacity but when making manifestly inappropriate decisions she lacks capacity.

Due to this conclusion, it was considered that a further hearing was necessary “both to establish a mechanism under which the local authority can operate when capacity fluctuates and also to consider best interests.

What does this mean?

For those of us who work regularly with vulnerable clients, the wording of the judgement raises some concerns.

Whilst the judge was at pains to make clear that an unwise decision does not mean that someone lacks capacity, the distinction he makes between “appropriate” and “inappropriate” decisions appears to lessen the weight of that important principle.

The current position is left open to interpretation, with the possibility of certain bodies taking advantage of the uncertainty. As stated above, people who lack capacity are afforded a high level of protection which is not necessarily available to those who do have capacity; that protection is costly for the local authority. How easy would it be for P to be considered to have capacity when she was agreeing with the local authority (making “appropriate decisions”) and then be considered to lack capacity when she disagreed with the local authority (making “inappropriate decisions”), thereby only requiring that she be given the appropriate protections when the local authority wants her to live somewhere/ accept treatment she does not want.

This is a complex area and there is unlikely ever to be a universal standard to apply to situations. We hope the judgement from the further hearing will be published in order to provide some context and guidance to the broad statement on fluctuating capacity we currently have.

If you would like advice on mental capacity law, please call 01872 272 457 for a free 30-minute consultation with one of our lawyers.