Mental Capacity Case

A Local Authority v AB and SB

HHJ Sarah Richardson

In A Local Authority v AB and SB [2020] EWCOP 32, a 30-year-old woman with moderate intellectual disability spent most of the week living with her mother, AB, and the weekends with her partner. A number of expert reports were prepared, focusing on SB's decisional capacity regarding many matters. It was not in dispute that she had capacity in relation to sex and the withholding of information and lacked capacity to conduct the proceedings. But in relation to residence, care, internet/social media, contraception and financial affairs, her mother – described as clearly a concerned and committed parent – contended that her daughter lacked capacity whilst the local authority and Official Solicitor agreed with the expert evidence that she had capacity.

Her mother recalled her daughter's vulnerability, including the 3-4 times SB left with known offenders and became pregnant by them on 7 occasions, the times she went missing and had to be tracked down by her mother. And how SB was largely funding her partner's flat whilst he uses his money to gamble and buy illicit substances, with limited understanding of money. However, the court agreed with the expert evidence, observing "An evaluation of capacity does not and must not require or allow the court or others to substitute its own values and priorities with those that belong to a patient" (para 37). This emphasises that where someone is able to understand, retain, use and weigh relevant information, the amount of weight or importance to attach to salient details is a matter for them, not others. As the judge noted, "The weight to attach to that information is a matter for SB. The consequences that have in the past arisen as a result of the weight that she has attached to this information are in my view a quintessential example of an unwise decision" (paragraph 57).