The case of WBC (Local Authority) v (1) Z (by the Official Solicitor) (2) X (mother) (3) Y (father)
recently considered the issue of capacity and the use of expert evidence to assist the court.
Z is a 20-year-old woman with a diagnosis of Asperger’s syndrome and borderline learning disability. She currently resides with her mother and is able to go out and socialise with friends and access activities. In 2014, she became depressed and left college. She became sexually disinhibited and due to her presentation she was detained under section 2 Mental Health Act (MHA) 1983 and later section 3 MHA. While in hospital, the local authority (LA) applied to court for a declaration that Z lacked capacity to choose her own residence, make contact with others or deal with her care. The LA obtained an expert report in November 2014 which stated that Z was diagnosed with an autism spectrum disorder and this impacted her ability to think through the consequences of her actions. As such, the expert felt she was unable to identify risks she placed herself in. In 2015 she formed a relationship but subsequently ended this as she felt the relationship was “toxic”.
In December 2015, the LA obtained a further assessment of Z. The same expert was instructed and, while they acknowledged that there had been improvements, still felt that Z struggled to connect risky situations with the potential consequences and this was due to her autism.
The court considered the matter and noted that while the LA had been justified in their application to the court in 2014, they had not rebutted the presumption of capacity within the Mental Capacity Act 2005. Although Z has a diagnosis of autism, they did not agree that she was unable to process information around risks. The court re-emphasised that Z did not need to weigh up every single detail, but the salient factors regarding the risks and her ability to keep herself safe.
The court’s view was that Z was able to understand the risks of living independently and was able to recognise the benefit of additional support, were she to accept this. In relation to contact with others, other than her relationship in 2015, Z had not been making contacts through social media that caused any concern. By December 2015, the court held that Z had been able to demonstrate increased maturity and the ability to learn from her mistakes, which enabled her to improve her assessments of risks.
What to take away
Given Z’s age, the case highlights the need to consider carefully whether her actions arose due to a lack of capacity or as part of the normal process for an adolescent.
In addition, the decision highlights that while an expert can provide their opinion, ultimately it is the court that makes the decision as to whether or not the individual has capacity or not. In this case LJ Cobb highlighted that the “opinion of an independently instructed expert … is likely to be of very considerable importance” as “the decision as to capacity is a judgement for the court, weighing the expert evidence against my findings on the other evidence.”
The court held that Z had demonstrated an ability to learn from the past and make appropriate decisions independently. As such, the court should not adopt a “paternalistic, perhaps overly risk-averse, approach to Z’s future;” as this would be “unprincipled and wrong.”
We can help
If you have any questions regarding the case, or would like advice around the Mental Capacity Act 2005, the Mental Health Act 1983 or assistance regarding Court of Protection proceedings, please do not hesitate to contact Molly Sanghera