London Borough of Camden v BW: when a single missing fact can decide a capacity case

It is rare for a capacity assessment from an experienced psychiatrist to be overturned where there is no competing expert evidence on the other side. London Borough of Camden v BW & Anor [2026] EWCOP 26 (T3) is one of those rare cases, and it offers a clear illustration of how much can turn on whether an expert has asked the right question, rather than simply asking many questions thoroughly.

BW, a 27 year old woman with autism and a long and difficult history involving psychiatric detention, periods in prison and repeated exploitation, was the subject of Court of Protection proceedings concerning her capacity to consent to psychotropic medication and to make decisions about sharing information with her sister, AW. The treating team considered a depot injection of Aripiprazole had been instrumental in reducing BW's aggression, but BW herself focused on its side effects, particularly its effect on her fertility, given her wish to have a child.

Dr Sheehan, instructed to assess capacity, produced what was by any measure a thorough report, supplemented by detailed answers to written questions from the Official Solicitor. He concluded BW had capacity both to make decisions about her medication and to decide what information should be shared with AW. HHJ Hilder disagreed, finding BW lacked capacity in both respects, and the local authority appealed on the basis that her reasons were inadequate given the statutory presumption of capacity and the absence of any contrary expert view.

Mrs Justice Lieven's judgement is notable for how narrowly it focuses the analysis. The presumption of capacity, she held, does not create some enhanced or heightened standard of reasoning that a judge must meet before departing from an expert's conclusion. The standard remains the same as set out in South Bucks v Porter (No 2): reasons must be intelligible, address the principal issues, and allow the reader to understand why the decision went the way it did. What mattered here was substance rather than length.

The substance was this. Section 3(4) of the Mental Capacity Act requires a person to be able to understand the reasonably foreseeable consequences of a decision. Dr Sheehan's assessment of BW's capacity regarding her medication never grappled with the fact that further aggressive incidents, more likely without the medication, would very probably result in the loss of her current placement, with all that this would mean given her history of homelessness and detention. Similarly, his assessment of her capacity to exclude AW from information sharing did not address the foreseeable impact on the care planning that BW, by her own unchallenged prior assessment, lacked capacity to manage herself.

This is the part of the judgement likely to resonate most widely. It is a reminder that a capacity assessment can be procedurally exemplary, extensively documented and entirely sincere in engaging with P's wishes, and still be legally deficient if it omits a single foreseeable consequence that goes to the heart of the decision. The point applies well beyond the Court of Protection: wherever a professional's view is being weighed against a person's stated wishes, the question is not only whether the person has been heard, but whether they have been given the full picture of what follows from their choice.

The judgement also pushes back, gently but firmly, against the suggestion that judges who know a case well are at risk of a "protection imperative" that colours their capacity findings. Lieven J found nothing in HHJ Hilder's reasoning to suggest she had confused an unwise decision with an incapacitous one. The local authority's own evidence, which described the medication as central to BW's stability, sat awkwardly with its argument on appeal, and the appeal was dismissed in full.