Fluctuating capacity

1. Some people’s ability to make decisions fluctuates, or changes, because of the nature of a condition that they have. This fluctuation can take place either over a matter of weeks or months (for instance where a person has bipolar disorder with cycles of mania, depression or mixed states) or over the course of days (for instance a person with delirium with states of confusion that arise in association with, for example, severe infection) or over the day (for instance a person with dementia whose cognitive abilities are significantly less impaired at the start of the day than they are towards the end).  
2. Fluctuation of mental state does not entail fluctuating capacity – symptoms (e.g. mood and anxiety symptoms, symptoms associated with dementia) may be highly changeable without necessarily causing changes to a person’s ability to make decisions.

One-off decisions

3. If it is a one-off decision, you may be able to delay taking the decision until the impact of the person’s condition upon their decision-making abilities has diminished.  If it is not possible to put the decision off, then you should either take the minimum action necessary to ‘hold the ring’ pending the person regaining decision-making capacity or you should move to best interests decision making.
4. At the point when mental capacity has been regained, you should record the person’s decision, and, at least in any case where there may be a challenge later to the decision on the basis that they lacked capacity, record why you consider that the person had capacity to make it.[1] A, B and C v X and Z [2012] EWHC 2400 (COP  Depending upon the context, you should also record the discussions held and what the person would want in the event that they lose capacity in future to make similar decisions.  This means that, if further decisions then need to be taken in their best interests, they can be taken in knowledge of what they would want.   The MHJ project has prepared detailed guidance about how to do advance care planning in the context of those with bipolar disorder, which with due alteration of details, is also applicable to other situations where a person may have a condition which fluctuates.

Repeated decisions

5. Some decisions are not one-off and need to be repeated over a period of time.  Examples include the management of property and affairs,[2]A, B and C v X and Z [2012] EWHC 2400 (COP) at paragraph 37. or the management of a physical or mental health condition which requires a multitude of ‘micro-decisions’ over the course of each day or week.  Although capacity is time-specific, in such a case, it will usually be appropriate for you to take a broad view as to the ‘material time’ during which the person must be able to take the decisions in question.  If the reality is that there are only limited periods during the course of each day or week that the person is able to take their own decisions, and the decision-making is not ‘macro’, then it will usually be appropriate for you to proceed on the basis that, in fact, they lack capacity to decide.  This is particularly so where the consequences for the person are very serious if they are taken to have capacity when, in reality, this is only true for a very small part of the time and for some aspects of the decision making only.  The courts have shown themselves increasingly willing to take this approach,[3]See Cheshire West And Chester Council v PWK [2019] EWCOP 57. or, closely-linked, the approach of ‘zooming out’ to ask themselves a macro-question if appropriate.[4]See Royal Borough of Greenwich v CDM [2019] EWCOP 32 (‘macro’ decision about the management of diabetes in the context of rapidly fluctuating capacity to take all the many ‘micro’ decisions … Continue reading
6. If the approach taken here is adopted, you should keep the person’s decision-making ability under review, and reassess if it appears that the balance has tipped such that they have, rather than lack, capacity to take decision(s) more often than not and that the capacity to decide the appropriate macro-question is regained.
7. In deciding which approach to take, a judge has emphasised that it is important to remember that the solution must be one which is ‘real and practical,’ rather than theoretical and illusory (See A Local Authority v PG & Ors [2023] EWCOP 9)).

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