Z & Ors [2016] 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.

The Facts
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.

Concerns
The LA’s concerns were:

• P’s obsession with stardom;
• P had displayed risky behaviour;
• After entering a talent show that was available on the internet P had been contacted through social media, mainly by men.  P had met some of these men, some of whom exploited or abused her.
• P became sexually disinhibited and some of her experiences were believed to be non-consensual.
• P received support from Sexually Exploited Children’s Outreach Services and although she had showed some insight was not always able to apply her insight and learning into practice.

The Law
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 [2015] 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 starting point is that P is presumed to have capacity, and they considered the diagnostic test in section 2 of the Mental Capacity Act 2005 (‘the Act’), and the functional elements of capacity in section 3 of the Act, and that the decision is ‘both time and ‘matter’ specific’;
• P should not be treated as unable to make a decision unless ‘all practicable steps to help [her] have been taken without success’ (section 1(3));
• P should not be treated as unable to make a decision because she makes an unwise decision (section 1(4):.
• It is not necessary for P to use and weigh up every detail (CC v KK and STCC [2012] EWHC 2136 (COP) at [69]).  The P may be able to use and weigh other elements sufficiently to make capacitous decisions (Re SB [2013] EWHC 1417 (COP));
• The determination of capacity under Part I of the Act is always ‘decision specific’ (PC v City of York Council [2013] EWCA Civ 478);
• Capacity needs to be assessed in relation to a specific decision and not P’s capacity to make decisions generally;
• The question is not whether P’s ability to make the decision is ‘impaired by the impairment of, or disturbance in the functioning of, the mind or brain but rather whether the person is rendered unable to make the decision by reason thereof’ [paragraph 15];
• The burden of proof lies on the person asserting the lack of capacity, and the standard of proof is the balance of probabilities (KK v STC and Others [2012] EWHC 2136 (COP) at [18]).

Decision
The court did not grant the declarations.

Discussion
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