Z & Ors  EWCOP 4
This case concerns a young women aged 20 years (‘P’) and the question to be determined was whether the decisions that she had made were as a result of lack of capacity, or her adolescent life, or both. The local authority (‘LA’) made an application for declarations as to P’s capacity to:
• Choose her residence;
• Make contact with others;
• Deal with her care;
• Litigate these proceedings.
P is on the autistic spectrum with a diagnosis of Asperger’s Syndrome, and had a borderline learning disability.
P resides at home with her mother (‘X’) but aspires to living independently.
The court received evidence from P’s social worker and a consultant developmental psychiatrist, along with written evidence.
X opposes the LA’s application. After hearing P’s evidence and it being tested the official solicitor (‘OS’) on behalf of P invited the court to conclude that the LA has failed to prove its case.
The LA’s concerns were:
The court examined at length the issue of capacity and the recent judgment of MacDonald J in Kings College Hospital NHS Foundation Trust v C and V  EWCOP 80 at paragraphs 24-39, of which the court broadly agreed. The court identified key principles which had governed its approach to this case:
The court did not grant the declarations.
This was a difficult decision for the court as it recognised that P was a vulnerable young person and it would be easy for the court to take a ‘paternalistic’ approach but that this would be ‘unprincipled’ and ‘wrong’.
The court disagreed with the expert in this case and reminded itself of the differing roles - the expert advises and the court decides. The difficulty in this case was that the expert’s report was a year out of date and although it may have been correct about P’s capacity at the time, the evidence of P since then demonstrated that she had made some decisions that indicated a sufficient ability to weigh up the risks and gain an insight into the consequences of her choices.
This case illustrates the difficulty in assessing a vulnerable young adult and balancing the autonomy of that young adult to ‘make unwise decisions, provided that they have the capacity to decide’ (PC v City of York).
Read the full text of the judgment on Bailii
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