Anticipatory Declarations: Lessons from Leicestershire County Council v P & Anor

Posted: 19th November 2024
by Sarah-Lyn Strong

In the thought-provoking case of Leicestershire County Council v P & Anor, the court grappled with complex issues surrounding anticipatory declarations under the Mental Capacity Act 2005 (MCA). This case not only highlighted the legal mechanisms available to safeguard vulnerable individuals but also underscored the challenges of balancing autonomy, protection, and the evolving nature of capacity.

The case centered on “P,” a woman with a diagnosis of Dissociative Identity Disorder, whose diagnosis was questioned during the course of the proceedings. P had a history of trauma and concerns were raised about her vulnerability to harm from others and her ability to care for herself at home. The proceedings were commenced by the local authority for declarations as to P’s capacity and, if she was found to lack capacity, her best interests regarding residence and care. By the time of the final hearing, it was P who sought anticipatory declarations to provide certainty for those supporting her about what steps they should take, should she dissociated and behave in a way that was likely to put herself at risk. This case emphasized the utility of anticipatory declarations in proactive safeguarding with Mrs Justice Theis confirming that it is within the Court of Protection’s power to make such declarations in appropriate cases. By anticipating potential future harm, such declarations can establish a framework to protect P without overstepping P’s autonomy when making capacitated decisions. The court recognized the importance of maintaining P’s agency while providing clarity and legal certainty about protective interventions if her capacity fluctuated.

However, Leicestershire County Council v P & Anor also illuminated the limits of the court’s powers and the sensitivity required in such cases. The court emphasized that declarations should not be overused to pre-emptively restrict an individual’s rights when they are capable of making their own decisions. Instead, anticipatory measures should be narrowly tailored, proportionate, and based on robust evidence of likely harm. Mrs Justice Theis ultimately concluded that anticipatory declarations were not required in this case as appropriate powers to intervene in situations where P, whilst dissociated, was at risk of harm using section 5 Mental Capacity Act 2005.

This case underscores critical considerations for professionals working within the MCA framework. Anticipatory declarations can be a valuable tool for managing complex situations where capacity is dynamic and risks are significant. However, they must be applied judiciously to avoid undermining the rights and dignity of the person concerned. Collaboration with the individual, careful planning and clear evidence are key to ensuring that such interventions respect the delicate balance between autonomy and protection.

Ultimately, Leicestershire County Council v P & Anor serves as a reminder of the MCA’s core principle: every effort should be made to empower individuals to make their own decisions, with protective measures serving as a last resort when autonomy is no longer viable.

Sarah-Lyn Strong, Senior Associate Solicitor from EMG Solicitors’ Court of Protection Health & Welfare team, worked on the case and said,

“This case was quite unusual as, from a pragmatic standpoint, it seemed quite clear that steps should be taken to protect P when she was dissociated and at risk. But it wasn’t clear how to achieve that within the legislative framework because of P’s particular circumstances. Several complex legal issues were raised throughout the proceedings, and it was an incredibly difficult process for P. It was a privilege to support P in making her voice heard.“