Jurisdiction(s):
United Kingdom

Fluctuating capacity: anticipatory declarations authorising deprivation of liberty and BSL-competent capacity assessors in deaf adult care (Oldham MBC v KZ [2024] EWCOP 72, Court of Protection, England and Wales)

Published on: 29 January 2025

Published by a LexisNexis Private Client expert

Legal News

Article summary

Court of Protection issues anticipatory declarations on care where capacity fluctuates (Oldham MBC v KZ & Others)

Oldham Metropolitan Borough Council v KZ (by his litigation friend the Official Solicitor) and others [2024] EWCOP 72

What are the practical implications of this case?

The Court of Protection has, once more, considered how best to respond when an individual is assessed as having ‘fluctuating capacity’. Under section 2(1) of the Mental Capacity Act 2005 (MCA 2005), capacity is decision-specific and must be evaluated at the point the decision is taken. Fluctuation in capacity creates practical challenges. For instance, a care provider may need, in demanding circumstances, to judge whether a significant choice about care has been made with capacity. Where distinct periods of incapacity can be identified, the courts have been prepared to make anticipatory declarations authorising future measures, eg a care plan, which would otherwise amount to an unlawful deprivation of liberty. That course was followed here as the most appropriate way to provide a lawful foundation for KZ’s care while preserving his autonomy. The outcome turned on a revised capacity assessment that was critical of earlier evaluations of KZ. The judge went on to address...

To view the latest version of this document and thousands of others like it, sign-in with LexisNexis or register for a free trial.

Popular documents

Using the Judicial College Guidelines to assess general damages in personal injury claims

When evaluating a general damages claim, the practitioner ought initially to refer to the Judicial College Guidelines (JCG)...

Tomlin orders in England and Wales: CPR guidance on drafting, confidentiality, approval, variation, enforcement, limitation, CCA issues, court-specific requirements, sample wording and precedents

This Practice Note This Practice Note reviews mechanisms used in settling litigation. A Tomlin order consists of a consent order paired with a schedule. It operates to stay proceedings on terms that have been agreed. The provisions contained in the schedule may remain confidential. This Practice Note describes the scope of confidentiality attaching to the schedule and sets out how it differs from a standard consent order. Sample wording for a Tomlin order is included, alongside links to precedents, as well as guidance on court approval. It also addresses varying, setting aside and enforcing a Tomlin order, including the considerations the court will take into account when handling applications for each. Further guidance is provided on interpreting and applying the relevant provisions of the CPR; however, some courts and divisions impose very specific requirements for both drafting and approval, and for approaching the schedule and confidentiality issues. Accordingly, you must consider the particular rules and court guide provisions in the forum where your claim is proceeding when drawing up the Tomlin order...

Precedent: Deed of Surrender of Lease with Optional Premium, Settlement and Release, Landlord, Mortgagee and Guarantor Consents, Reimbursement and HM Land Registry Provisions (England and Wales)

Date [ date ] Parties [ name of Landlord ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Landlord) [ name of Tenant ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Tenant) [ [ name of Guarantor ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Guarantor) ] [ [ name of Mortgagee ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Mortgagee) ] Definitions Within this Deed, the terms below shall be interpreted as follows: [ Annual Rent • the annual sum reserved under the Lease; ] [ Insurance Rent • the Tenant’s share of the Landlord’s costs of insuring the Property (as set out in the Lease); ] Lease • the lease of the Property dated [ date ], entered into between (1) [ the Landlord OR [ name ...

Precedent Statutory Declaration: Standard Wording under the Statutory Declarations Act 1835

I, [ name ], of [ address ], solemnly and sincerely state that: [ Matters to be verified, set out in numbered paragraphs ] I make this solemn statement in good conscience, believing it to be true, and pursuant to the provisions of the Statutory Declarations Act 1835. DECLARED at [ details ] this [ day ] day of [ month and year ] Before me ................................................................................ [ signature of the person before whom the declaration is made ] A [ commissioner for oaths OR [ solicitor OR [ insert other qualification ] ] authorised to administer oaths ]...