Judge: Cobb J
Citation:  EWCOP 4
This case concerned a 20 year old woman with Aspergers syndrome and an IQ in the range 70-75. In June 2014 the local authority where Z lived issued proceedings in the Court of Protection seeking declarations as to Z’s capacity to decide where to live, what care to receive, and what contact to have with others. The local authority’s concerns for Z arose in circumstances where she had engaged in risky behaviour and there was a genuine concern about sexual exploitation. The court held a 2 day hearing to determine Z’s capacity. The local authority relied on a report by an independent psychiatrist, which, by the time of the hearing, was over a year old. The psychiatrist had concluded that Z was unable to identify risks to herself from social situations and over-estimated her ability to keep herself safe. It was suggested that Z might acquire capacity if she had a period of stability in her life during which she engaged with professional support. By the time of the hearing, Z’s risky behaviour had decreased. She had received some support from a care agency, although she felt that it was not needed and that the care workers talked down to her. The court heard from Z in person, and was satisfied that “the passage of time and Z’s greater maturity, coupled with some support from Dimensions and enhanced self-esteem through her music, Z appears to have matured, learned from her mistakes, and developed sufficiently in her capacity to make relevant decisions, and keep herself safe.” The presumption of capacity was not rebutted, and the declarations sought by the local authority were refused. The judge concluded (at paragraph 70):
“I have conscientiously cautioned myself against considering outcome when determining Z’s functional ability; I repeat this point, as I am conscious that Z is a vulnerable young person who deserves to have, and should be persuaded to receive, support from adult social services going forward. It is tempting for the court to take a paternalistic, perhaps overly risk-averse, approach to Z’s future; but this would be unprincipled and wrong. I am satisfied in any event that Z currently has a reasonably fulfilling life, which enjoys; she has a loving relationship with her mother who currently cares for her well and who, I hope, could be encouraged to do so for a while longer while Z grows further in maturity and confidence.”
This case illustrates a relatively common difficulty for local authorities with safeguarding responsibilities – deciding what amounts to unwise decision-making, and what amounts to incapacity. In cases of borderline or mild learning disability and disorders such as Aspergers, the dividing line can be very hard to pin down, particularly when it is clear that the individual is repeatedly placing themselves at significant risk of harm. The court noted that just because Z had engaged in risky behaviour, this did not in itself demonstrate that she lacked capacity. In fact, evidence as to one potentially dangerous trip that Z had made to meet friends she had made online, suggested on the contrary that Z did appreciate risks, as she had been able to identify the steps she had taken to mitigate risk, even though she decided to make the trip. The court in this case was not critical of the local authority for bringing proceedings when it did, but emphasised the importance of reviewing capacity in such cases, and the value of hearing oral evidence from the individual herself.