Sophie Hurst acted for North East and North Cumbrian Integrated Care Board in the recent case of Darlington Borough Council v AW & Ors [2025] EWCOP 33 (T3) (https://caselaw.nationalarchives.gov.uk/ewcop/t3/2025/33) in which Ms Justice Henke considered the use of anticipatory declarations in the Court of Protection.
An application had been made to the Court of Protection to authorise the care and support arrangements for AW which amounted to a deprivation of her liberty. These had previously been authorised by the High Court invoking the inherent jurisdiction. The application was directed by Ms Justice Henke in light of AW turning 18 and evidence that AW’s capacity fluctuated in a number of areas.
Ms Justice Henke granted permission for the parties to jointly instruct independent expert, Dr Christopher Ince, to assess AW’s capacity and prepare a report for the court. Having assessed AW, Dr Ince found that AW’s functional profile varied significantly depending on her emotional state, environmental stability, relational safety and perceived autonomy, impairing and episodically disrupting her ability to appraise information relevant to certain decisions.It was the opinion ofDr Ince that anticipatory declarations could be operationalised effectively for AW provided that her care team was furnished with a clear, objective criteria and supported by ongoing training to maintain vigilance and procedural accuracy.
Notwithstanding Dr Ince’s conclusions, all parties agreed that the court ought not exercise its power to make anticipatory declarations on the basis that there was insufficient clarity as to the circumstances in which AW may lack capacity, as well as the circumstances in which contingent best interests decisions would need to be made. The parties further agreed that the risks to AW could be appropriately managed under the existing statutory framework in sections 5 and 6 Mental Capacity Act 2005 with a ‘backstop’ of an urgent application to the court being available if needed.
Having heard live evidence from Dr Ince and submissions on behalf of each of the parties, Ms Justice Henke concluded that the use of anticipatory declarations was not appropriate in this case, that AW had capacity in each of the areas assessed, that the application ought to be dismissed and the proceedings concluded.
The judgement provides a helpful overview of the law relating to fluctuating capacity, the factors to be considered when contemplating the use of anticipatory declarations and serves as an important reminder to guard against the protection imperative. Ms Justice Henke also deals with the issue of delay in the provision of expert reports and the importance of notifying the court at the earliest opportunity to allow for proactive case management.
This is a significant decision of a Tier 3 judge of the Court of Protection and will be of interest to all Court of Protection practitioners.
Sophie Hurst was instructed by Catharine Busby of Ward Hadaway Solicitors.
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