Alex Ruck Keene looks at the lessons to be learned from the latest Court of Protection to address the issue of fluctuating capacity.
Some may remember that the Court of Appeal was going to give a judgment setting out what to do where a person has fluctuating capacity, in the appeal arising out of the case of RB Greenwich v CDM  EWCOP 15, a complex case about the management of diabetes in the presence of emotionally unstable personality disorder.
In that case, Cohen J had held that the relevant issues were CDM’s ability to manage her diabetes and in particular (a) the ability to manage and control her blood sugar level and (b) the willingness to accept treatment when required, and that CDM’s capacity fluctuated. Cohen J held that “when making appropriate decisions she has capacity but when making manifestly inappropriate decisions she lacks capacity.” Because further medical evidence, including from a psychologist, Dr Beck, emerged, matters took an unanticipated course, and the Court of Appeal did not, in fact, consider the appeal, but rather sent the case back for a judge to consider the case on the basis of that evidence.
In a judgment delivered in February, but only just appearing on Bailii  EWCOP 32, Newton J reached the “very clear conclusion” on the evidence and on the law, accepting the analysis of the experts, that:
a) on the assessment of capacity to make decisions about diabetes management, in all its health consequences, the matter is a global decision, arising from the inter dependence of diet; testing her blood glucose and ketone levels; administration of insulin; and, admission to hospital when necessary in the light of blood glucose levels. And
b) that CDM lacks the capacity to make those decisions, and having regard to the enduring nature of her personality disorder which is lifelong and therefore unlikely to change.
acknowledge[d], as do the experts, that there may be occasions when CDM has the capacity to make micro-decisions in respect of her diabetes and occasions when she does not, i.e. that her capacity does in fact fluctuate. However, if the court accepts the expert’s opinions, as I do, and approaches the matter on the basis of their conclusions, logically, legally and practically, it is a macro-decision, and CDM lacks capacity to take the macro-decision, the issue of fluctuating capacity simply does not arise.
More broadly, Newton J did not think it:
necessary or helpful to draw inferences or parallels on examples of other conditions or other classes of individuals, since the interrelationship between the micro and macro-decisions still needs to be decided, having regard to a particular individual in particular circumstances, and having regard to their particular condition. No two people self-evidently are ever the same, their condition the same condition, or the circumstances the same. The elements in relation to CDM’s own particular conditions are unique to her. CDM has diabetes which is not unique to her, being shared with many other millions of people in the United Kingdom, but as an individual the factors are unique.
This case could be contrasted with that of United Lincolnshire Hospital NHS Trust v CD  EWCOP 24, in which Francis J held that where the circumstances under which the woman in question would lack capacity to make decisions about birth arrangements were sufficiently clear that it was possible to make a ‘contingent’ declaration about what could then happen in her best interests at that point. In this case, however, Newton J noted that:
during the course of evidence, Dr Beck was asked for more guidance as to the signs when CDM becomes emotionally dysregulated and whether she has lost capacity in respect to either of the micro-decisions but, Dr Beck was simply unable to do so, because it was impossible to do so.
In CDM’s case, therefore, every action in relation to the management of her diabetes would fall to be considered by reference to her best interests, taking into account, of course, her wishes and feelings.