Judge: District Judge Bell
Citation:  EWCOP 36
This interesting decision from last year which recently appeared on Bailii is the first reported decision where consideration has been given to questions of capacity in the context of Prader-Willi Syndrome (‘PWS’). Although a decision of a District Judge, which does not therefore have any precedent value, it is of particular interest for highlighting some of the complexities which arise in relation to this condition.
The question was whether a 32 year old man, FX, had capacity to make decisions in relation to residence and care. The man asserted throughout the s.21A proceedings (through his litigation friend) that he had capacity to make the decisions; the CCG (whom it appears must have been funding his care) asserted that he did not.
Both the BIA, SN, and the independent psychiatric expert, Professor Tony Holland, were restricted in their ability to assess capacity by a refusal by FX to discuss matters which directly related to his PWS. DJ Bell noted that “[t]his is a subject which FX finds embarrassing to talk of and which he fears may result in a deleterious outcome from his perspective. He has also expressed frustration about the number of professionals who have undertaken assessment work with him.” DJ Bell reminded herself of a decision cited as Re P  EWHC 119 COP in which Cobb J considered what conclusions should be drawn when a person deliberately avoids engaging or cooperating with the mental capacity assessment process thus “it seems to me that patient’s lack of engagement or cooperation with the assessment may contribute in itself to a conclusion that a patient is unable to “understand the information relevant to the decision” (section 3(1)… a) and/or (perhaps more significantly, if the patient is shown to understand) unable to use or weigh that information as part of the process (section 3(1)(c))”. DJ Bell held that she was “satisfied that his reluctance to discuss his PWS arises from embarrassment and frustration. This explanation does not, in itself, establish that he has relevant understanding.”
Unlike SN, Professor Holland found it difficult to engage with FX, DJ Bell noting that “[i]n undertaking his assessment Professor Holland considered records for FX from last year, he spoke with a senior staff member at Care Home C and met with FX on two occasions. On the first occasion for ten minutes and subsequently for forty minutes. Unfortunately, he established minimal rapport with FX and FX did not wish to engage with any discussion about his PWS.”
Professor Holland concluded that FX lacked capacity in relation to residence and care; SN “could not conclude that FX lacks capacity in respect of residence and care. She described her discussions with FX, he would not discuss his PWS but in every meeting he has discussed some of the factors of his care and treatment. She was unable to establish on the balance of probabilities that FX’s PWS (or any other mental impairment) is affecting his ability to decide on receiving care and treatment and what that care and treatment should be.”
The difficulty that Professor Holland had in engaging with FX fed into his report, discussed by DJ Bell thus (in passages that merit reproduction as demonstrating so many of the issues that so often come up in our experience of capacity assessments):
‘the question I asked myself is: if offered a free choice of any type of accommodation would FX be able to incorporate an understanding of the fact he had PWS into any decision he made about his residency? I conclude on the balance of probability that he would not. However, it is very likely that he would be able to form a view between two possible options both of which had food security.’
Questions of capacity in the context of Prader-Willi can be extremely complex (as discussed in this paper prepared by the PWS Association here). On one view, the outcome in this case could be been as coming perilously close to the somewhat problematic conclusion that “so long as FX is taking sensible decisions he has capacity” (see also in this regard CDM discussed here). On the other hand, the judgment stands as an object lesson in following the route map of the MCA with care: despite the superficial disparity in expertise in relation to PWS, SN’s care in following the route map of the MCA meant that her evidence carried greater weight than did that of Professor Holland.
 Who assessed his capacity on behalf of the local authority in the context of (it appears) renewing the standard authorisation; it would appear that she must have taken a different view to whomever it was had initially assessed his capacity because, as below, she concluded that FX had capacity, which would logically have meant that the original standard authorisation should not have been granted.
 Interestingly, this is not, as far as we can see, a reported judgment – should anyone care to provide the transcript for wider use, it would be much appreciated as this is a very useful paragraph!