There is a presumption, as set out in section 1(2) of the Mental Capacity Act 2005, that a person does have capacity. Where that has been displaced, to regain decision making powers an order of the Court of Protection is normally required.

In the case of MB v Surrey County Council [2007] EWCOP 25B27 a person made an application challenging a standard authorisation made under the deprivation of liberty safeguards. The application was made to the Court of Protection through his representative, that he be allowed to leave care and move to independent accommodation. This was a second application in that an earlier application in 2014 had failed, owing to the judge saying that there was a “huge risk” in such a move. The protected party had autism and complex severe epilepsy. If unattended his epilepsy could be life endangering, hence he was held in a residential care home.

It is possible to make multiple applications, normally on the basis that a person’s condition can changes over time. However, here the protected party’s condition seemed stable. Despite that, in the second application the jointly instructed expert reported that he did have a capacity to make decisions as to his residence and care.

The Local Authority objected and unusually, the Court of Protection allowed the second expert, as there were “very significant issues at stake”. The local authority took a view that the protected party would make potentially harmful decisions that might put his health at risk.

The second expert also agreed that he had capacity, however that capacity “could fluctuate during times … when his anxiety rose and he became distressed because of environmental triggers”.

Where a person has fluctuating capacity, the Courts may allow an order to made, however much depends on the support available and the likely length of intermittent incapacity. There is no guidance in the MCA on where the line should be drawn in complex cases such as this. The Deprivation of Liberty Code of Practice at para 8.22 does indicate that an authority should remain in place were the periods of capacity are limited. However, there is no statutory footing for this. Unsurprisingly the Law Commission is looking to put forward legislation to address this issue.

In this case, we are not aware as to what happened once the Court withdrew the authorisation. The local authority would have had no right to retain him within residential care and he could walk out whenever he chose. He may have made an unwise choice, however, in practice one would hope that the local authority would have been involved in setting up an alternative care plan, despite their concerns as to the inadequacy and risks of the same.