WBC (Local Authority) v (1) Z (by the Official Solicitor, her litigation friend) (2) X (Z’s mother) (3) Y (Z’s father) (2016)

WBC (Local Authority) v (1) Z (by the Official Solicitor, her litigation friend) (2) X (Z’s mother) (3) Y (Z’s father) (2016)

Keywords: Mental Capacity, Autistic Spectrum Disorder, capacity assessment
The local authority applied for a declaration as to the capacity of Z, a 20 year old female with Asperger’s Syndrome and borderline learning disability, to choose where to live, make contacts with others, make decisions regarding her care and to litigate. It is a useful example of a case where the evidence as to capacity is finely balanced and therefore provides an illustration of the application of the MCA test for capacity.

Z lived with her mother, though she aspired to live independently. She had dropped out of college and become depressed. Z was a keen singer and online videos of her had attracted contacts via social media, mostly from men.  In 2012 and 2013 she had met with some of those who contacted her, some of whom allegedly abused or exploited her.  She received some support from a service for sexually exploited children. There was evidence that, at that time, although she appeared to show some insight into the risks of her behaviours, she did not always apply this understanding in practice, and continued to place herself at risk.

An assessment undertaken in 2013 by a clinical psychologist concluded that Z did have capacity to make decisions about social contacts. [Unfortunately no details are given in the published judgment regarding the reasoning for this conclusion.]

Following referrals to CAMHS and the local authority, Z was provided with support from a care agency and developed a more structured daily routine of appropriate activities including visits to a gym, singing lessons and cinema outings.

In June 2014 proceedings were issued by the local authority seeking a ruling as to capacity due to ongoing concerns about Z placing herself in risky situations.

An independent consultant developmental psychiatrist, Dr. Rippon, assessed Z in November 2014. In her view, Z’s autistic spectrum disorder “… negatively impacts on her ability to think through the consequences of her actions and there is evidence that, even though she may have an ability to learn new information, she struggles to put this into practice on a day-to-day basis.” (para. 27)

She concluded that  “Z was unable to identify the risks which she could place herself in, and she over-estimated her ability to keep herself safe.” (para. 28). However she was also of the view that, if appropriate support was provided then “… with time and increased maturity, her ability to accurately assess risk may improve. It is very difficult for me to assess time frames, but I would suggest that, if there is a period of stability with [Z] engaging in the support which is provided for her, then it would be sensible to re-assess her capacity in two to three years time.” (para. 29)

With regard to social contacts specifically, Dr. Rippon’s 2014 view was that

“… as a consequence of [Z]’s autism, which impacts on her ability to put herself in other people’s shoes and make judgments with regard to their intentions towards her, she struggles to think through the consequences of having contact with another individual who may pose a risk to her… she fails to accurately assess her own vulnerability and struggles to appropriately weigh up the positives and negatives of contact, particularly with men, as I believe that she is of the view that she has the skills in order to keep herself safe, despite evidence to the contrary.   As a consequence of this inability to weigh up the positives, but potential dangers of contact, particularly with those of the opposite sex. [Z] lacks capacity to make decisions regarding contact with others.” (para. 38)

Dr. Rippon’s original assessment had been carried out in November 2014, more than a year prior to the hearing. A brief update of the assessment had been carried out a few days prior to the hearing. Dr. Rippon acknowledged that Z’s risk-taking behaviour had significantly subsided over the intervening 12 months. She discussed an episode in which Z had travelled to visit a social contact in Brighton and, although expressing concern over Z’s decision to make the trip in the first place, acknowledged that Z had acted to protect herself by returning home when she felt uncomfortable with the situation. Nevertheless she continued to take the view that Z’s was unable to ‘use or weigh’ (section 3(1)(c) MCA) the information relevant to risk.

In his analysis, Cobb J set out that  “…the question for the court is not whether the person’s ability to take 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.” (para. 15)

He further emphasised the importance of considering capacity at the material time (i.e. the time of the current hearing (Para. 60).

He also took into account (following CC v KK [2012] EWHC 2136 (COP)) that it was not necessary for Z to use or weigh every detail of the available options, only the most relevant factors.

In evaluating Z’s capacity, Cobb J considered the length of time which had passed since the original capacity assessment and the changes in Z’s behaviour over the intervening year which indicated increasing maturity and, in several instances, contained indications that Z had learned from mistakes and modified her behaviour. He also took into account Z’s own evidence in court. During that evidence, she had conducted herself appropriately, indicating an understanding of decisions being made about her and their seriousness. During her evidence, Z demonstrated insight into the consequences of a decision to live independently and her own need for support if she were to do so. Z was able to explain her reasons for rejecting ongoing support currently on offer to her and her decision to reject the support was not in itself evidence that she lacked the capacity to decide on its usefulness.

In relation to social contacts, Dr. Rippon took the position that Z had failed to learn from negative experiences and use this to support her future decision making (as young adults are typically able to do). Cobb J disagreed, concluding that there was evidence, such as her decision to return home from the visit to Brighton, that Z had learned from experiences and modified her behaviour. Where her decisions were unwise, these were within the scope of adolescent risk-taking behaviour and did not by themselves indicate that she was “unable” to weigh evidence of risk.

Consequently, despite Dr. Rippon’s view, Cobb J concluded that Z did understand the essential implications of her decisions in all of the areas under consideration and demonstrated improving ability to assess risk. As a result there was insufficient evidence to overturn the presumption of her capacity.

Commenting on his decision to come to a conclusion which differed from that of the expert witness, Cobb J reminded us that “her role and mine are distinct: the expert advises and the court decides.  While the opinion of an independently instructed expert in a case such as this is “likely to be of very considerable importance” (Baker J in PH v A Local Authority [2011] EWHC 1704 (COP)), as indeed I find her evidence to be, the decision as to capacity is a judgment for the court (see Re SB [2013] EWHC 1417 (COP)), weighing the expert evidence against my findings on the other evidence.  “ (para. 69)

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