Bristol City Council v CC & Ors (Capacity Instruction of Experts Deprivation of Liberty)

This judgment deals with final declarations relating to capacity regarding CC under the Mental Capacity Act 2005 (‘MCA 2005’). If the court retains jurisdiction as CC lacks capacity in the relevant areas, then best interest decisions are required regarding CC’s residence, care and contact. Also, whether the arrangements regarding his residence and care amount to a deprivation of CC’s liberty that requires ongoing authorisation by the court.

This application is made by Bristol City Council (‘the local authority’). CC through his litigation friend the Official Solicitor is the first respondent. Avon and Wiltshire Mental Health Partnership NHS Trust (‘the Trust’) is the second respondent. The Trust is responsible for the Forensic Community Learning Disability Team. The third respondent is the NHS North Somerset and South Gloucestershire Integrated Care Board (‘the ICB’). The ICB is jointly responsible with the local authority for commissioning CC’s after-care pursuant to s 117 Mental Health Act 1983 (‘MHA 1983’). The fourth respondent is Sirona Care and Health CIC (‘Sirona’) who is responsible for the Adult Learning Disability Health Service. The fifth respondent is CC’s sister, DD. CC’s mother, FF, is no longer a party to the proceedings.

I have previously given a judgment in these proceedings (Bristol City Council v CC & Ors [2026] EWCOP 4 (T3)). That judgment dealt with the closed material applications made earlier in these proceedings.

CC is a 23 year old man who has a complex social and mental health background. He has a close relationship with his sister, DD, and his grandmother, EE. He lives with EE with a package of care providing 2:1 care for 6 hours each weekday. Care and support at other times is provided by the family.

CC has a diagnosis of learning disability and psychosis. Although he has not had a full diagnostic assessment for autism, the professionals providing support for him agree the framework of autism should be used to inform the understanding of CC’s presentation.

There is a very long-standing history of serious violence and aggressive behaviour by CC, including gang affiliations, use of weapons and extensive involvement by CC with the police and criminal courts. More recently CC has had a period of stability and good engagement with the professionals around him. CC has been able to develop his varying interests and skills in many areas such as fashion, cooking and music. He is very proud of his heritage and cultural identity and places value on his independence. He wishes to live independently and to be seen as capable and self-sufficient; having these goals has been a key motivator for him.

I met CC at the start of the hearing on 17 March. He was able to tell me about his many and varied interests and it was clear he was enjoying taking part in these activities and acquiring new skills.

CC has previously lived in a range of different placements including a children’s home, a secure children’s home, a hospital pursuant to the MHA 1983, a residential care home, and a supported living placement. For the last 15 months he has been living with EE with a package of care support for 6 hours per day during the week. CC has, in the past, been assessed to require support in a number of areas including managing and maintaining nutrition, personal hygiene and a habitable environment, developing and maintaining personal relationships and accessing education and work.

At the hearing on 17 March 2026 I heard oral evidence from Dr Radcliffe, clinical psychologist, the expert instructed jointly by the local authority, the Trust, the ICB, Sirona, and the Official Solicitor with the Official Solicitor acting as the lead instructing party. Following his evidence all of the parties wished to consider their respective positions. Written submissions have been filed by all the parties, which have been of great assistance to the court.

At the invitation of the court the parties have liaised and produced an extremely helpful agreed note on the instruction of experts in the Court of Protection. This issue arose due to my concerns in this case as to (i) the length of the letter of instruction sent to the expert in this case (27 pages, 12 of which were under the heading ‘Legal Framework’), and (ii) the incoherent management of the way documents were sent to the expert prior to this hearing by the local authority (he was sent large pdf bundles with no agreed guide as to what he should read/focus on). As a result, I hope what follows will be a useful reminder of the framework in which experts are instructed in the Court of Protection and how such instructions should be managed. Those willing to give expert evidence in cases in the Court of Protection are an invaluable resource to assist the parties and the court reach decisions in these difficult cases. The parties and the court need to ensure that all necessary steps are taken to enable them to undertake that important role.

The procedural rules on the instruction of experts in the Court of Protection are contained in rule 15 of the Court of Protection Rules 2017 (‘COPR 2017’), as supplemented by Practice Direction 15A. The test is ‘necessary’ (rule 15.3(1) COPR 2017) and permission may only be given if it is necessary to assist the court to resolve the issues in the proceedings and could not otherwise be provided by a rule 1.2 representative or in a report pursuant to s49 MCA 2005 (rule 15.3(2) COPR 2017).

When making an application for the instruction of an expert on form COP9 the application must include a draft letter of instruction to the expert (rule 15.5 (2)(f) COPR 2017). The expectation is that the draft letter of instruction should be approved by the court or, if not (due to urgency or some other reason), clear directions in the order for the letter to be finalised with the questions for the expert being approved or overseen by the court.

The letter of instruction must be focussed and adapted to the facts of the particular case. Previous cases provide helpful guidance (such as Poole J in AMDC v AG and CI [2020] EWCOP 58 [28 (b)] “28… (b) [t]heletter of instruction should, as it did in this case, identify the decisions under consideration, the relevant information for each decision, the need to consider the diagnostic and functional elements of capacity, and the causal relationship between any impairment and the inability to decide. It will assist the court if the expert structures their report accordingly. If an expert witness is unsure what decisions they are being asked to consider, what the relevant information is in respect to those decisions, or any other matter relevant to the making of their report, they should ask for clarification.” [emphasis added]). Lengthy and unwieldy recitations of the background facts and procedural history are to be avoided, as well as detailed descriptions of previous case law.

It may be helpful to keep in mind the following as the key components of a letter of instruction to an expert:

Questions to the expert after the filing of their report should only be done in accordance with rule 15.7(2) COPR 2017 or by order of the court (rule15.7(3) COPR 2017). In accordance with rule 15.7(2)( c) COPR 2017, any such questions must be for the purposes of clarification only.

In addition to ensuring experts have all the relevant documents at the point of their instruction, the parties should keep under active review what further evidence or documents should be sent to the expert with a suitable covering message identifying the relevant documents. If agreement is not possible, a COP9 application will need to be issued setting out the issue and the parties’ competing positions with a draft order attached. This will enable the court, if appropriate, to determine the issue on the papers.

If an expert is going to give oral evidence at a hearing, they should be provided with the following in advance of the hearing by the lead instructing party:

CC lived with his mother until the age of 16 years when he moved to live with his aunt as part of a kinship placement. CC’s mother then withdrew her consent to this placement and CC returned to live with his mother.

CC’s placement with his mother broke down and in the autumn of 2018 he was placed in a specialist children’s home. That placement broke down within a week due to CC assaulting a member of staff who was trying to prevent him leaving the placement.

He was placed in a semi-independent placement as an emergency placement due to an alleged stabbing of another student outside CC’s school. That placement broke down in March 2019, and CC was moved to a further interim placement and then to temporarily live with his grandmother, EE.

In April 2019 he was remanded to a secure children’s home.

In July 2019 he was admitted to G hospital following a hospital order under s37 MHA 1983 made by the Magistrates Court. The order was made relating to ten offences between September 2018 and March 2019: 5 counts of assault by beating; 2 counts of attempted robbery; 1 count of theft; 1 count of breaching a restraining order and 1 count of possession of a Class A drug.

On admission CC was assessed as having active psychotic symptoms and was treated with antipsychotic medication. This treatment is reported to have led to a significant improvement with his symptoms.

CC remained at the hospital for 2 years and was transferred to Z hospital as part of his continued detention under s37 MHA 1983. In addition to medication for his psychosis, CC received psychological support through individual and group sessions, however there was an increase in the frequency and severity of his aggressive behaviour.

In late 2020 CC was discharged from Z hospital to a residential community care setting, X House, under a Community Treatment Order under the MHA 1983. This is a residential community care setting for men with learning disabilities, mental health needs and/or personality disorder and forensic needs.

In April 2022 the Community Treatment Order ended. In the following months a deterioration in CC’s mental health was noted with an increase in assaults on staff. Adjustments were made to CC’s antipsychotic medication.

In August 2023 CC was transferred to a supported living placement, Y placement. This placement is for those with complex needs and provided 24 hours a day staffing support.

In February 2024 CC received a 24 month Community Order for the following offences: 1 offence of assault of a previous support worker; 1 offence of intentional strangulation of a previous support worker; 2 offences of criminal damage for property belonging to a support worker.

The local authority issued proceedings in the Court of Protection in April 2024 seeking declarations regarding CC’s capacity to make decisions regarding residence and care, and authorisation for CC’s future care and support arrangements in the community.

In May 2024 the court made interim declarations regarding capacity under s 48 MCA 2005 that CC lacked capacity to litigate these proceedings, and make decisions about residence or care and support. The Official Solicitor was appointed to act as CC’s litigation friend. Interim orders were subsequently made in early June 2024 that it was in CC’s best interests to remain placed at Y placement and the court gave authorisation as to any deprivation of liberty arising from that placement.

In June 2024 CC moved to stay with his mother on a trial basis with 1:1 support for 15 hours per week during weekdays. CC was supported by his family at other times. Between then and December 2025 the court renewed orders that continued this plan.

Following an incident at his mother’s home in December 2024 and in January 2025 CC making persistent abusive telephone calls to his legal representative, CC attended the court to speak with the judge and solicitor.

In February 2025 CC moved to live with his grandmother, EE.

In early April 2025 an application was made by the Trust and the ICB for closed material and re-allocation of the proceedings to a Tier 3 Judge of the Court of Protection. Interim orders were made for certain documents not to be disclosed to DD or EE.

On 12 May 2025 McKendrick J made directions listing a hearing on 16 May 2025. Interim orders continued and permission was given for certain documents not to be disclosed to CC, DD, EE and FF. Directions were made on the papers for the instruction of Dr Radcliffe, who reported in late September 2025. I made further interim orders on 3 October 2025 and the matter was listed on 10 December 2025 to consider both the closed applications and for directions in the open proceedings. Dr Radcliffe provided a further report on 10 November 2025.

On 10 December 2025 the court approved orders regarding the closed applications.

The final hearing in the open proceedings was listed for 17 March 2026. Only Dr Radcliffe gave oral evidence at this hearing.

Much of the detailed evidence in the 900 page court bundle relates to historical matters.

The updated statement from AB, CC’s previous allocated social worker, confirms that from the end of January 2026 CC will continue to be supported by the Multi- Disciplinary Team (MDT) and a new social worker, DE. In AB’s statement he sets out the arrangements for the change in the provider for support for CC. AB also details that whilst this change is taking place the local authority do not consider it appropriate to undertake work on reducing the current restrictions CC is under until there is more stability regarding his care arrangements.

CC seeks more independence to visit his cousin and stay overnight with his sister. In his statement AB describes that when developing a multi- agency risk assessment for the visits to CC’s cousin’s home the principal clinical psychologist from the Forensic Community Learning Disabilities Team (FCLDT) was instrumental in highlighting the importance of specific protective factors, control measures and escalation responses to be included to ensure the safety of everyone. The detailed risk assessment for these changes is under regular review by the MDT.

AB sets out that following the community treatment review in September 2025, and the Forensic, Intellectual, Neuropsychiatric and Developmental Disorders Team (FIND) updating their assessment in November 2025, a comprehensive list of actions and recommendations was made for all agencies involved to complete. The local authority are overseeing this work. The local authority raised concerns about what they considered was the lack of collaboration between the Trust and Sirona about the allocation of responsibility for certain actions, this has now improved. The local authority have engaged with CC and other services to help complete a more social timetable of activities that CC can engage with, as well as liaising with the relevant services to secure supported educational development.

The updated statement from the learning disability nurse sets out the practical arrangements for the ongoing monitoring of CC’s mental health. It will be provided by Dr C, Consultant Learning Disability Psychiatrist at Sirona’s Adult Learning Disability Health Service, following a joint appointment with CC and Dr C and Dr T.

CC’s wishes as expressed to his solicitor have remained consistent. He wishes to remain living with EE and become more independent. He has become frustrated by the various delays that have taken place and is keen to work with his new social worker.

For the preparation of his September 2025 report Dr Radcliffe met CC for a period of 10 hours over one day.

In his main report Dr Radcliffe concluded CC lacks capacity to conduct the proceedings, to make decisions regarding residence in general, make decisions about care/support, make decisions about his contact with others and manage his overall finances but has capacity to enter into a tenancy agreement and has the potential to have capacity to execute a lasting power of attorney for property and affairs.

Further questions were raised with Dr Radcliffe by the parties and they were answered in his addendum report in November 2025.

In his main report Dr Radcliffe stated ‘The current assessment was restricted by a lack of alternative concrete options to explore directly with [CC]…Therefore, the current assessment focussed on his current accommodation and hypothetical discussions about alternative options. Whilst [CC] is able to understand, retain and use some of the relevant information relating to his own lived experiences and personal preferences…in my opinion, [CC] is unable to understand all the relevant information, particularly regarding the support that could be provided in any option, and therefore unable to retain and use this information as part of his decision-making processes. In my opinion this is due to the impacts of a significant impairment in his social communication and interactions and his learning disability. [CC] was able to communicate verbally. In my opinion, at this time and on a balance of probability, [CC] has capacity to make decisions regarding his residence, in circumstances where decisions about the care which would be provided in each of the options presented to [CC] have been made on his behalf, via the best interest process.’ In oral evidence he agreed CC had capacity to decide to live with EE but in his view he was not able to understand any alternative or what support he would receive in different placements. Ms Sutton KC pressed Dr Radcliffe, and he agreed that there was a concrete option of living with EE and CC was able to understand the relevant information in stages, but Dr Radcliffe considered two or more options should be explored as part of the relevant information. In his view to enable CC to use and weigh he needs to understand the alternative.

Turning to care and support, in his report Dr Radcliffe stated that whilst CC understands and retains information that he receives support, that the support is there to help him and what sort of support he receives where it is it overt and routine, but he is ‘currently unable to understand, retain and use information regarding other, more dynamic, provision of support. In my opinion, he is unable to understand, retain or use information regarding the full extent of why he needs support, what his support should entail, and particularly the consequences of not having the correct support, as he is solely focussed on being independent in all areas rather than choosing to accept support after considering the pros and cons of this. In my opinion, he knows who provides his support and that they are employed, and he is able to recognise inappropriate and abusive care, and is likely to know how to complain if unhappy with his support…CC] is vulnerable to exploitation and abuse. It is likely that [CC] is unable to recognise exploitation and/or some forms of abuse by another person. There may be contextual factors that might impact this and also depend upon the type of exploitation and/or abuse. For example, he is more likely to be unable to recognise nefarious exploitation and abuse that is presented in a friendly manner, compared with outwardly hostile and aggressive physical abuse, and therefore he would be unable to recognise this and therefore unable to raise a complaint.’

In oral evidence, Dr Radcliffe agreed CC understands he has a care plan and needs support but he considered CC’s answers displayed a rigidity and he could not explore issues. His view was that CC would recognise overt types of inappropriate behaviour but would struggle to recognise similar behaviour that was in a friendly manner. In these circumstances Dr Radcliffe considered CC ‘would struggle’. As regards any steps that should be taken to support CC regaining capacity, if the court concluded he lacked it, Dr Radcliffe considered it was important to make sure CC was included in support planning and reviews. He agreed CC did not need insight but he did need understanding and the ability to retain that. Dr Radcliffe’s view is that people with a learning disability need information to be presented in a particular way and ‘lived experience is likely to be key to his learning’. He agreed with Ms Gardner that CC had a lack of understanding of the full care he required and the consequences if he did not have it. CC was not able to use and weigh the consequences of having such care and support and not having it.

Turning to contact with others, in his report Dr Radcliffe stated whilst CC ‘understands, retains and uses the information regarding whom his contact will be with, what sort of contact will occur, and his perceived positives and negatives aspects of having contact, he lacks the ability to assess the risks posed by another individual or situations from which to extricate himself if he were vulnerable to exploitation. Furthermore, he is vulnerable to the influence of others and seeks out peer relationships from others. In my opinion, these difficulties are due to the significant impairments in his social communication and interactions, and his learning disability.’

Ms Sutton took Dr Radcliffe to the parts of his main report where CC had been able to take steps and demonstrate an understanding through his own experiences. Dr Radcliffe agreed that CC probably had capacity regarding contact with people he knows. As regards contact with people he does not know, Dr Radcliffe stated it is not uncommon for someone to be able to explain the risks but not be able to use them in a real life situation, such as when CC was subject to exploitation by gangs. He agreed he had not put that to CC and that his response would be relevant, but Dr Radcliffe stated it ‘comes back to look at all the information, his ability to understand social communications, he struggles and has been targeted in the past’.

As regards finances, whilst Dr Radcliffe accepted CC was able to recognise money and is receptive to assistance and support, Dr Radcliffe said having capacity requires someone to hold oversight, it was the degree to which CC was unable to have oversight. In his report, Dr Radcliffe stated CC ‘is able to understand, retain and use information relating to the practical use of money and purchase of items…is unable to understand, retain and use the relevant information required to maintain oversight and management of his finances. He is unable to understand, retain and use information regarding the need to budget and balance his financial commitments…this is due to his social communication and interactions impairments and his learning disability.’ In oral evidence Dr Radcliffe denied he was setting the bar too high, as he did not consider CC would be able to maintain oversight between income and expenses and awareness of any balance and the consequences of that. He agreed CC had the potential to be able to manage his finances with experience and education and support.

The test for capacity is in MCA 2005 ss2 and 3, to which the principles in s1 apply:

The Supreme Court's decision in A Local Authority v JB [2021] UKSC 52 provided guidance regarding capacity. At paragraphs [63] to [77] in JB, Lord Stephens, with whom the other Justices agreed, set out the correct approach to determining capacity in all cases, endorsing the judgment of McFarlane LJ in York City Council v C [2013] EWCA Civ 478. MCA 2005 s2(1) provides a single test for capacity which falls to be interpreted by applying the remaining provisions of ss2 and 3:

There is no real issue between the parties as to the applicable legal framework regarding deprivation of liberty. A deprivation of liberty under the MCA 2005 has the same meaning as under Article 5 of the European Convention on Human Rights (EHCR).

In Cheshire West and Chester v P [2014] AC 896 at [37] Lady Hale articulated the three elements: an objective element for a non-negligible length of time, a subjective element, namely that the person has not consented and that the deprivation of liberty is immutable to the State.

In relation to the objective element, the “acid test” is set out in Cheshire West [49] which requires an affirmative answer that the person was “under continuous supervision and control and was not free to leave”. At[54]Lady Hale stated that the key question is: “whether a person is under the complete supervision and controlof those caring for her and is not free to leave the place where she lives”.

Whether or not there is a deprivation of liberty is fact specific within this legal framework.

The local authority submit the court should make declarations that CC lacks capacity to make decisions regarding residence, care and support, contact with previously unknown persons he may meet in the community and property and financial affairs generally. The local authority does not support the positive capacity declaration sought by the Official Solicitor that CC has capacity to make decisions as to contact with named family members.

They submit the diagnostic criteria is satisfied by the diagnosis of learning disability and the impact of that as set out by Dr Radcliffe.

In relation to residence they submit the relevant information a person needs to understand and use and weigh for the purpose of making a capacitious decision about residence includes, in broad terms, the sort of care he would receive in each placement (relying on LBX v K, L M [2013] EWHC3239 (Fam) [43(8)]). Mr Auburn KC submits such information must include the reasons for such support, or the importance of having such support. CC is unable to understand why he may need a form of accommodation with support. He submits ‘It would be artificial to separate residence from care and support or contact with others and declare that CC “has capacity to decide to live with his grandmother” in circumstances where, if CC tried to absent himself from his grandmother’s to live somewhere where he would not receive suitable care and support or where his contact with others could not be monitored, he would be stopped and returned. A declaration of the nature proposed would tend to suggest that CC had a genuine choice in the matter when, in reality, he does not.’ He relies upon the observations made by Poole J in CLF (Capacity: Sexual Relations and Contraception) [2024] EWCOP 11 at [37] where in the circumstances of that case Poole J could not ‘see a way in which to divorce her decision-making about residence from other decision-making in relation to which it is agreed, and I have found, CLF lacks capacity’.

As regards care and support he submits Dr Radcliffe’s evidence is clear and no party seeks to challenge his conclusions.

Turning to contact with others the local authority accept Dr Radcliffe’s evidence regarding CC’s lack of capacity to make decisions regarding contact with people he does not know. The local authority do not support a declaration that he does have capacity to have contact with people he does know as, Mr Auburn submits, the presumption of capacity remains regarding this decision as no party is seeking an order in respect of such persons. In any event, he submits Dr Radcliffe’s oral evidence on this issue is not clear as when asked by Ms Gardner whether CC could use and weigh information to make decisions regarding people he knows he replied he was ‘not sure’ (giving the example of a family member who may be exploiting him) and would wish to review this matter. Any declaration regarding who he has capacity to have contact with should be narrowly defined and all others excluded by way of a declaration that CC does not have capacity to make decisions about his contact with any other person.

Mr Auburn submits CC’s capacity to make decisions regarding the management of property and financial affairs needs to be looked at in the real world of what they involve, for example involvement of and engagement with DWP. He submits the evidence of the appointee supports Dr Radcliffe’s conclusions, as the appointee considers if CC was given access to all his money ‘he would not pay any of his financial commitments and he would simply spend everything he has’. That, submits Mr Auburn, is not due to CC being a carefree young man but it is because CC can’t sufficiently understand or use and weigh the relevant information to allow him to do so. There are no clear boundaries if the domain is subdivided between small amounts of money for day to day spending and more generally. He submits due to the way small amounts of spending can accumulate and have consequences, there is no difference in reality between what CC needs to understand and use and weigh. He submits ‘The reality is that decisions as to the management of small amounts of day to day spending depend on essentially the same information considered in relation to management of finances generally, but that it has not proved problematic to let CC manage small amounts himself’.

The local authority do not pursue any determinations regarding capacity to enter into a tenancy agreement or a lasting power of attorney as they are not relevant decisions for CC at this time.

Turning to best interests the local authority submit that no party seeks to challenge the plan that CC remains living with EE with the package of support, which accords with CC’s wishes. There are detailed care plans to support the placement that are in CC’s best interests, including a transition plan to the new care provider, aftercare support plan, new care provider care plan, interim behaviour support plan and police protocol plan.

The local authority submit CC’s current and proposed care arrangements amount to a deprivation of liberty and rely on the following matters. CC is effectively prevented from leaving home and is kept under continuous supervision and control there. The restrictions in the various plans require CC to reside at his grandmother’s property, must be accompanied in the community by a responsible adult save for specific relaxations, he is cared for by two carers for 30 hours per week and the police will be immediately notified if CC accesses the community other than in accordance with the restrictions and be returned to his grandmother’s property. These restrictions amount to a significant amount of control preventing CC from accessing other places and it is this control, submit the local authority, that meet the requirements of control in the acid test. The fact that it is imposed by the family for part of the time does not prevent it from being control as CC is not free to leave in the way described by Lady Hale in Cheshire West at [48]. Mr Auburn submits the fact that the majority of care and supervision (i.e. outside the care package of weekdays) is by CC’s family is relevant to the issue of State imputability, but not to whether the acid test is met. He submits the deprivation of liberty is imputable to the State as it is decided upon, arranged, funded, overseen and reviewed by the State in the form of the local authority.

Mr Auburn recognises there has been, and may be, some relaxation to CC’s care plan that will permit him to undertake certain trips independently but satisfying the acid test does not require the supervision and control to be 24 hours a day 7 days a week. He submits this is based on the Strasbourg cases that Lady Hale relied upon when reaching her conclusion in Cheshire West (see Ashingdane v UK (1985) 7 EHRR 528; HL v UK (2004) 40 EHRR 761 and Stanev v Bulgaria (2012) 55 EHRR 22).

On behalf of the Trust and the ICB Ms Gardner’s submissions focus on the issues in dispute. The AWP and ICB do not disagree with Dr Radcliffe’s conclusions that if CC was presented with two options, both of which can meet his care and support needs, then he would be able to choose between those options. Ms Gardner does not accept this represents a capacitious decision as there is an important distinction between CC being able to exercise choice in circumscribed circumstances and CC having capacity to make decisions about residence per se, or globally. The support and care CC needs is inextricably linked to his residence as a result the type and specific residence that would be suitable and able to meet his needs. Ms Gardner submits CC ‘is unable to understand, and compare, the different levels and types of support that would be available to him in other settings, and he is unable to understand the consequences of residing somewhere where he does not receive the required level of support’. She continues ‘if you are to be considered to have capacity to “do” something, it necessarily involves you having capacity to decide “not to do” that something.’ In the context of this case that could involve CC deciding not to live at his grandmother’s house. She submits Dr Radcliffe’s evidence was that CC is unable to understand, retain and use and weigh the relevant information about a residential arrangement that is unable to meet his needs ‘it is clear [CC] doesn’t have capacity to make decisions about residence, even if that is specific to a decision to live at his grandmother’s. In practice, declarations about capacity regarding residence are not framed on the basis P has capacity to decide to live at X, but on whether P has capacity to make decisions about where to live. Caution should be exercised in conflating [CC’s] “compliance” with the recommendation to live at his grandmother’s with him having capacity to make that decision’. Ms Gardner also raises the practical difficulties in implementing contradictory declarations as between residence and care and support and relies on the observations by Poole J in Re CLF at [37].

Although neither the Trust nor ICB have direct responsibility for financial matters they support the submissions of the local authority on this issue.

Turning to whether the current care arrangements for CC amount to a deprivation of liberty, Ms Gardner focuses her submissions on whether the arrangements amount to an objective deprivation of CC’s liberty, whether the acid test set out in Cheshire West is met. The position of the local authority in relation to this is supported by the Trust and ICB. Ms Gardner’s rationale can be summarised as follows. The current arrangements for CC’s care provide for him to reside at his grandmother’s property, he must stay there every night, he is supported on a 2:1 basis for 30 hours per week, his whereabouts are known by a responsible adult at all other times and he is only permitted to access the community alone in very limited and prescribed circumstances. These restrictions are underpinned by the requirements to notify the police if they are not adhered to and he will be returned to his grandmother’s home.

Sirona confirmed they support the submission on behalf of the Trust and the ICB.

Ms Scott, on behalf of DD, set out her position that DD is very pleased with the progress CC has made and accepts the conclusions regarding Dr Radcliffe in relation to capacity. Regarding residence, she supports a declaration that CC has the capacity to decide to live with EE at her home, or a slightly wider declaration that CC has the capacity to make decisions about residential options in which his care needs are met. DD agrees CC lacks capacity to make decisions regarding his care and support, even though he does understand some of his more ‘concrete’ care needs. Turning to contact with others Ms Scott submits that in the light of Dr Radcliffe’s oral evidence CC has capacity to make decisions about contact with named individuals (namely DD, FF, EE and his current social worker) he knows but lacks capacity to make decisions about contact with others. This is on the basis that those named individuals are known to CC and do not pose a risk of harm to him. DD does not consider CC has capacity to manage his property and affairs but fully supports arrangements where he retains the autonomy to spend the money allocated to him for his personal use. DD fully supports any steps that are taken to help support CC regaining his capacity in any of the domains where he lacks capacity.

As regards any order seeking authorisation for deprivation of liberty Ms Scott submits as a matter of fact CC has little or no supervision by the State in the evenings and at weekends. There is no requirement for him to be accompanied in the house, his carers spend little or no time in the home. CC spends a number of hours on his own in the morning each weekday whilst EE is at work. Whilst he is accompanied in the community for the most part, he does have some limited time in the community on his own (such as visiting a local store and walking to his cousin’s home). DD recognises the care plan requires CC to stay at EE’s home each night (unless agreed by the MDT) and for the police to be notified if he accesses the community other than in accordance with the care plans.

Ms Scott submits the objective element in Cheshire West is not met as there are periods each weekday when CC is alone in the home, when he is at home there are no restrictions or control within the home, he is not subject to restrictive practices such as searching in the home and is able to spend short periods in the community supervised. Ms Scott also submits the subjective element of the Cheshire West test is also not met as CC consents to living in the home.

On behalf of the Official Solicitor Ms Sutton KC and Mr Rylatt agree CC lacks capacity to conduct these proceedings, make decisions regarding his care and support needs and his contact with others with the exception of identified individuals. Those individuals are his grandmother, mother, sister, cousin and known professionals within his MDT and care team with whom he has direct contact.

Ms Sutton submits CC does have capacity to make decisions about where he lives, when presented with options that are able to meet his needs, which includes his current residence with his grandmother. He also has capacity to make decisions about contact with the known individuals and regarding his property and financial affairs.

In relation to residence Ms Sutton submits a declaration can be made in accordance with s 15 MCA that on the present evidence CC has capacity to make decisions about where he lives when presented with options that are able to meet his needs, which includes his current residence with his grandmother. Ms Sutton submits ‘the Official Solicitor accepts this qualified conclusion, which focuses squarely on [CC’s] individual circumstances and the evidence before the court’. Ms Sutton relies on what Dr Radcliffe stated in his oral evidence that CC knew he was living in a residential property and not just visiting, could identify the particular area, was aware of the activities he undertook, was clear regarding the arrangements in which he sees his family and friends, he knew who he was living with, that he did not pay the bills and understood the arrangements for his care. Ms Sutton submits ‘There is no ‘conflict’ in the court finding that [CC] has capacity to make decisions regarding his residence in this measured way, whilst simultaneously finding that he lacks capacity to make decisions regarding his care and support needs, as all that is required, it is submitted, as regards residence, is for [CC] to understand that he would receive similar support wherever he were to live as the support is based on his specific needs, as formally assessed by the Local Authority, in conjunction with other agencies. It is a rather unusual aspect of this case that [CC] in many ways is a high functioning individual, requiring little if any support whilst inside the home environment (he is self-sufficient), and that the real issue relates to support whilst in the community’.

As regards care and support, in summary Ms Sutton submits it is clear that CC has care and support needs as set out in the detailed care planning documents. CC’s belief that he does not have care or support needs, and that there would be no adverse consequences of not receiving that care are, it is submitted, demonstrative of an inability to understand and/or use and weigh that relevant information. Turning to the causative nexus, she submits Dr Radcliffe’s clear evidence is that the operative impairments/disturbances in the functioning of CC’s mind or brain are mild learning disability coupled with impaired social communication. Ms Sutton emphasises the importance of keeping under active review whether steps and support can be taken to help CC regain capacity and be supported with appropriate educational provision to develop and maximise his ability to make decisions as to his care and support needs.

When considering CC’s capacity regarding decisions about contact the Official Solicitor submits the court should make declarations under s15 MCA that CC has capacity to have contact with the individuals identified above and lacks capacity to make decisions as to his contact with those not in that category. Ms Sutton submits this accords with Dr Radcliffe’s oral evidence that by reference to family, friends and professionals who CC knows he is able to understand, retain and use and weigh who they are and in broad terms the nature of his relationship with them, what sort of contact he could have with each of them, including different locations, differing durations and differing arrangements regarding the presence of a support worker and the positive/negative aspects of having contact with each person. Ms Sutton cautions against the bar not being set too high and reminds the court of the need for evidence to rebut the presumption of capacity, and that generalised concerns that lack examples to underpin them risk being founded on the protection imperative which must be guarded against. As regards strangers, the Official Solicitor accepts Dr Radcliffe’s conclusions that CC lacks capacity as he is unable to understand or use/weigh the positive and negative aspects of contact. This is illustrated by the evidential background, for example CC seeking to join two rival gangs. Ms Sutton again stresses the importance of CC being given support with appropriate educational provision to develop and maximise his capacity to have contact with strangers.

As regards capacity to manage his property and financial affairs, which involves an ongoing act rather than one specific act, Ms Sutton emphasises the distinction between unwise and incapacitous decision making as explained by Lord Stephens in JB at [51]. Ms Sutton submits Dr Radcliffe’s rationale that CC is ‘unable to understand, retain and use information regarding the need to budget and balance his financial commitments’ is insufficient to rebut the presumption of capacity. In oral evidence Dr Radcliffe accepted CC was able to give clear information regarding his finances, recognised if he had more responsibility he would need assistance and this area of decision making is more concrete than other areas with the result that CC finds it easier to understand. Ms Sutton submits ‘In circumstances where (i) [CC’s] finances are not complex (being limited to social benefit entitlement), (ii) where he has his grandmother and sister (at the very least) to support him, and to assist him to understand (for example) the need to budget, and (iii) where he lives with a family member who takes responsibility for household bills (etc), leaving him with very little responsibility, in reality (other than to spend money on what he chooses), there is insufficient evidence to demonstrate that [CC] would be unable to make decisions in this area’.

Ms Sutton submits the Official Solicitor’s position remains as it was at the start of this hearing that CC is not deprived of his liberty that requires the authorisation of the court in his current circumstances. Ms Sutton lays emphasis on what is set out by Lady Hale in the Cheshire West case regarding the acid test as to whether the person is under continuous supervision and control and was not free to leave. At [54] Lady Hale stated that the key question is ‘whether a person is under the complete supervision and control of those caring for her and is not free to leave the place where she lives'. Ms Sutton submits that acid test is not established on the facts of this case. CC’s professional support is limited to 30 hours per week, CC has no outside support over the weekend at all or at times during the week when the professional support is not present. Ms Sutton submits that whilst CC’s grandmother is aware of where CC is when support staff are not with him she does not supervise him for that time. There is no evidence that CC has attempted to abscond or refused to return when he is out. The doors and windows are not locked at CC’s grandmother’s home. CC has a key. He is not subject to personal searches or any other restrictive practices when in the property. He has access to all rooms and is able to move around the house.

Ms Sutton submits the Official Solicitor fully recognises the need to err on the side of caution in borderline cases, particularly one such as this with CC’s criminal history and the potential risks for the protection of other persons, but this is not a relevant consideration when implementing the MCA and deciding whether CC is deprived of his liberty.

The Official Solicitor supports an order being made under s16 MCA that it is in CC’s best interests to be provided with care and support in accordance with the finalised care planning documents, which include a staged approach to any reduction in care which CC has accepted is necessary as was confirmed in the note of the meeting between the judge and CC at the start of this hearing.

Ms Sutton submits that if matters change on the ground the local authority has the reassurance that it can take any steps that come within s 4B MCA, and are able to deprive CC of his liberty whilst a decision is sought from the court for the purpose of doing a ‘vital act’. A vital act is ‘any act which the person doping it reasonable believed to be necessary to prevent a serious deterioration in P’s condition’ (s 4B(5) MCA).

Although this has been a complex and difficult case with a very concerning background over an extended period of time, since February 2025 there has been relative stability in CC’s life. This has been largely due to the structured care provided through the combination of the care plans, the care providers, CC’s family and a consistent social work team. There have been recent difficulties with the care providers, including a substantiated safeguarding incident as against the care provider. This has been responded to by a change of care provider that CC and his family have been actively involved in selecting. That transition has now taken place with no apparent difficulties, although I recognise this is early days in that relationship being established.

The legal framework in which the court needs to consider issues relating to capacity is well established in accordance with the principles laid down in JB. There is no issue between the parties that the court should make final declarations that CC lacks capacity to conduct these proceedings, make decisions regarding the care and support he requires and having contact with people he does not know. I agree the evidence supports those declarations being made. In relation to each, the evidence establishes an inability by CC to understand, and use and weigh the relevant information regarding those decisions due to a combination of his learning disability and social impairment.

Regarding care and support whilst CC understands some of his care needs, what was termed the more concrete needs, he lacks the ability to understand the more dynamic support he requires. This is to address his emotional dysregulation and challenging behaviour, in particular in the community and the support provided and needed to de-escalate situations. He is unable to weigh this information in the balance, namely the need for the support, the benefit to him of that support and the consequences to him if he did not have that support, when coming to a decision about it.

In relation to contact with others, in his written report Dr Radcliffe concluded CC lacked capacity to make decisions about that. In his oral evidence he limited that to strangers. In answer to Ms Gardener he said he was less confident as to whether or not CC had capacity to make decisions about people he knows as if they suddenly posed a risk to him he would not have the capacity to recognise that and use and weigh the relevant information. I accept Dr Radcliffe’s evidence and agree with the submissions on behalf of DD that for any declarations to work in practice the declaration should make clear who CC is considered to have capacity to make decisions about contact with. The court agrees with the Official Solicitor that those individuals should be limited to CC’s grandmother, mother, sister, cousin and known professionals within his MDT and care team with whom he has direct contact.

Regarding residence, the issue between the parties is the extent to which the court can consider the question of residence in isolation to the courts determination regarding CC’s capacity to make decisions about care and support, which in this case is an integral part of CC’s decisions about residence. In LBX I concluded that it was necessary for a person to understand, use and weigh for the purpose of making a capacitious decision regarding residence what sort of care he would receive in each placement ‘…in broad terms. In other words, that he would receive similar support in the proposed placement to the support he currently receives, and any differences if he were to live at home’. In CLF Poole J stated at [37]’What might seem an attractive solution in theory, could not possibly be put into practice. Much of the information relevant to a decision about residence, even with a care package determined for her, will be relevant to care, contact with others and the use of the internet and social media. A choice about whether to live in house A or house B will involve information about access to activities and the community which entails questions about risk; about the neighbours and any risk of conflict with them, or harm from then; about the layout of the house or flat, the ability to monitor CLF within the accommodation…Care is not simply a ‘given’: the choice of residence will itself determine the level and kind of care required. Similarly, decisions about contact with others will be contingent on where CLF lives. Whilst wishing to protect CLF’s autonomy as much as it possible, I cannot see a way in which to divorce her decision-making about residence from other decision-making in relation to which it is agreed, and I have found, CLF lacks capacity’.

I find myself in a similar situation in this case. The relevant information connected with decisions about residence on the facts of this case must include the reasons for the care and support CC needs and the importance of having such support, which I have concluded CC lacks capacity to decide. To divorce the matters of care and support from the issue of residence does not reflect the reality of the decision under consideration and could, in my judgment, be artificial. Equally, the submissions on behalf of the Official Solicitor that the presumption of capacity is not rebutted where the residential option being considered is capable of meeting CC’s care and support needs has some force. However, in this case there is only one option for CC’s residence at present, which is living at his grandmother’s home. On the evidence that is the decision I am being asked to consider whether CC has capacity to make. Dr Radcliffe accepted in his oral evidence CC was able to understand, use and weigh the relevant information in respect of living at his grandmother’s house. Dr Radcliffe considers CC has the capacity to make that decision. I agree to that limited extent the presumption of capacity has not been rebutted but it is in the context where no other options have been considered by CC, as there are none to consider. If those circumstances change and other options need to be considered CC’s capacity to make that decision will need to be re-assessed.

Turning to consider the issue of capacity to manage decisions regarding his property and financial affairs. Dr Radcliffe recognised that CC had demonstrated the ability to manage small amounts of money, he lacked capacity to manage other decisions about his financial affairs due to his inability to understand and use and weight the consequences of certain actions. I recognise the force of the submissions on behalf of the Official Solicitor that CC’s financial circumstances are relatively limited, he has the support of his family and is not responsible for household bills however the evidence from his appointee is that if he was given access to all of his money he would not pay any of his financial commitments and would ‘simply spend everything he has’. I accept this is likely to be because he is unable to sufficiently understand or use and weigh the relevant information and the consequences due to his learning disability, rather than him making an unwise decision. On the evidence he can manage small amounts of money once his other commitments have been met. This is what currently happens. Clearly CC should continue to be given support in this area as with that support he may be able to acquire capacity in this area.

I wholly endorse the observations made in the closing submissions of the need to proactively provide CC with effective and creative support and education in all areas where he lacks capacity to support him regaining his capacity. I agree with Dr Radcliffe that actively engaging CC in any reviews of his care arrangements and care plan is key, as concrete experience of situations by CC is likely to assist him the most to gain capacity.

As regards best interests there is no issue between the parties that the combination of the current care plans are in CC’s best interests in accordance with s4 MCA 2005. I agree. They provide comprehensive and dynamic support that accord with CC’s wishes to live with EE and continue to maintain his relationships with the wider family. He seeks more independence, and has become frustrated by the delays but concrete steps are now being taken to enable CC to have more independence in ways that are being closely monitored and overseen by the MDT.

Turning, finally, to consider whether the current care arrangements amount to a deprivation of liberty that requires the authorisation of the court. This issue is finely balanced. I am satisfied in the particular circumstances of this case that CC is deprived of his liberty. That requires the authorisation of the court. Whilst I accept in part the submissions on behalf of DD and the Official Solicitor, I do consider on the particular facts of this case that the objective element of the test set out in Cheshire West is met, namely that CC is [49] ‘under continuous supervision and control and was not free to leave’ and [54] ‘under the complete supervision and control of those caring for [him] and is not free to leave the place where [he] lives’.

It is acknowledged the combination of the care plans that set out the structure of care for CC mean, as a matter of fact, it could be said he is not under continuous supervision and control. It is a question of fact and degree in each case. I recognise CC is on his own in the home for three hours each weekday morning whilst EE is at work before the carers arrive, the windows/doors are not locked, there are no restrictions on his movement within the home, he is not the subject of any restrictions in the home (such as searching) and he is able to leave within the care framework (such as visiting a local shop). However, there is a continuous element of control provided by the care plans such as the requirement to spend each night at his grandmother’s home and part of the care plan includes a protocol with the police, who are to be notified if CC accesses the community (save in accordance with the care framework), they are to find him and he is to be returned to EE’s home. EE is aware of where CC is when the support staff are not present, although I recognise she does not supervise him for all the period. However, the overall effect of the care plan is that the police are to be contacted if CC accesses the community other than in accordance with the care arrangements. This is for the specific purpose of finding him and returning him home.

I accept the local authority submission that when looked at as a whole the effect of these care arrangements is that CC is not free to leave in the way considered by Lady Hale in Cheshire West at [48] as in reality CC “is not free to go anywhere without permission and close supervision”. I agree that whether or not CC in fact attempts to leave is not the point. In Cheshire West MIG had never attempted to leave her foster home but the fact steps would have been taken to restrain her had she done so was sufficient. As Lord Kerr observed in Cheshire West at [76] “Liberty…does not depend on one’s disposition to exploit one’s freedom.” The court needs to proceed on the basis that the care arrangements upon which CC’s residence and care are arranged will be observed. The limited and prescribed relaxation built into CC’s regime does not prevent a deprivation of liberty arising. Article 5 does not require total supervision 24 hours a day, 7 days per week.

The parties agree the deprivation of liberty is imputable to the State as the care arrangements set out in the care plans are decided on, arranged, funded, overseen and reviewed by the State in the form of the local authority and the ICB jointly arranging and delivering the s 117 MHA 1983 care arrangements. Also, there is no issue between the parties regarding consent. The Supreme Court has heard argument and reserved judgment in the Northern Ireland reference UKSC/2025/0042, concerning the issue of consent. No party in this case is contending that CC consents to the restriction on his liberty of the police being called, finding him and returning him home should he access the community other than in accordance with the care plan.

I agree with DD that the conclusions reached by the court, particularly regarding deprivation of liberty, will need to be carefully explained to CC. This will include that in the event of the care plan being revised the legal position may need to be reviewed and the deprivation of liberty is subject to ongoing review. Any material lessening of the current restrictions may result in the arrangements not requiring the authorisation of the court.

As regards the Transparency Order dated 26 January 2026 I am satisfied on the facts of this case that it should remain in place until further order such that CC, his immediate family and their addresses are protected by continuing the order. I am satisfied on the facts of this case that that should include identification of any individual professional working with him as being necessary and proportionate to protect CC’s confidentiality and privacy due to the risk of jigsaw identification.