Capacity, support and the case of ‘Stitch’; what does this judgement mean for our own clients?

Posted by Richard Maddicks

22nd April 2025

For many readers, the background to the recent Court of Protection judgement1 by Justice Cobb will undoubtably have contained many recognisable features, including:

• a history of neurocognitive, psychiatric and family relationship difficulties
• the imperative, yet difficulty, of reconciling protection and empowerment
• capacity questions relating to a number of distinct, yet inter-related areas (such as decisions regarding residence, care, contact with others and use of the internet)
• the client’s ability to give assessors the impression that she was more capable than she was
• a fragile relationship between levels of support and stability in the client’s life

Photo by Dasha Yukhymyuk on Unsplash

The case describes a 31-year-old female (referred to in proceedings as ‘Stitch’), living in supported, rented accommodation; despite neurocognitive difficulties, reflected in ‘cognitive rigidity’ and a reduced ability to realistically appraise her own vulnerability to coercion, Stitch was able to manage various practical demands of daily living within the context of consistent levels of community oversight and support.  However, her attachment disorder and efforts to secure intimacy also conferred high levels of risk in terms of her family relationships, social media use and communications/contact with men, necessitating, in certain areas, ‘restrictive’ care plans.  Left unsupervised, Stitch’s contact with her mother, which mirrored the interpersonal difficulties playing out in other areas of her life, often precipitated significant deterioration in her mental health and behaviour.

Justice Cobb’s judgement provides a detailed retrospective of the process of capacity assessments, implementation of support plans and various efforts to achieve proportionality in professionals’ interventions to mitigate risk.  Taking capacity assessors to task, Justice Cobb’s critique includes a lack of an individual focus to the specific capacity question(s), lack of ‘forensic acuity’ in assessment, the client’s unawareness that she was being assessed and the lack of ‘triangulation’ of a wide range of available evidence, including evidence from previous capacity assessments.

The parallels between the characteristics of this case and many of our vulnerable clients living in the community can also been seen in Judge’s conclusions, more particularly:

‘while structured support arrangements enabled Stitch to engage in some focused decision-making, this should not be confused with her having acquired capacity to make decisions in those respects “for herself”’; the protective and supportive care package was crucial in offering Stitch a high degree of stability and security, within which she could feel more able to express her wishes and feelings ‘freely and fully’;

• The client’s ‘lack of objection/resistance (to care arrangements) ought not be confused with an ability to use and weigh whether in fact those care arrangements are required to keep her safe’;
• Whilst the client does not have capacity to make decisions about her residence and care, her lack of capacity fluctuates to a point where she has, from time to time and when settled, appeared capacitous;
• the effects of her dysfunctional attachment style can ‘overwhelm her at ‘material times’ and rob her of the ability to use or weigh the risks of her social media use’

However, the complex interplay of factors contributing to the client’s lack of capacity might also offer her the potential to achieve it in areas such as her sexual relationships, where further support and therapeutic input is recommended.  Justice Cobb concludes that ‘great weight must be attached to her views when they are clearly expressed; Stitch will be able to make many choices in her life, but not all’.

The case encapsulates so many important themes from our work with vulnerable adults that extrapolating from these is likely to require further reflection and discussion; in particular, the need for ongoing supervision, support and intervention, sometimes against the client’s own wishes, could ultimately empower them, optimising their engagement and participation in decisions regarding key aspects of their lives.

1 Calderdale Metropolitan Borough Council v LS (by the official solicitor as her litigation friend) and another [2025] EWCOP 10, 13 March 2025.