Z & Ors, Re [2016] EWCOP 4

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the incapacitated person and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.Case No 12522610[2016] EWCOP 4
COURT OF PROTECTION
Date 18/01/2016
THE LAW COURTS
NEWCASTLE UPON TYNE
Before
MR JUSTICE COBB
Between
WBCApplicantZRespondentsX (mother)RespondentY (father)Respondent
Joseph O’Brien (instructed by Local Authority Solicitor) for Local Authority (WBC)Susanna Rickard (instructed by Ben Hoare Bell for Official Solicitor) for ZX (mother) attended in person for in personY (father) was neither present nor representedHearing Hearing dates: 2 & 3 December 2015
JudgmentThe Honourable Mr Justice Cobb :Introduction
[1]It is well known that young people take risks. Risk-taking is often unwise. It is also an inherent, inevitable, and perhaps necessary part of adolescence and early adulthood experience. The central issue which arises in this case is whether risks taken by a 20-year old young woman with autism represent ‘unwise’ decision-making, or evidence her lack of capacity.[2]Z is a young woman aged 20. In very many ways she is typical of a young person of her age; she is passionate about music, and has some talent in that respect; she is fascinated by celebrity status; she enjoys social media, through which she recently met a partner; she currently lives at home where she plainly values being cared for by her mother (‘X’), but aspires to live independently. She has a group of friends locally with whom she socialises. Her bedroom at home is described as being “in complete disarray, with numerous items strewn on the floor and every surface”, a familiar sight to a parent of an adolescent or young adult. She dresses fashionably, and plainly takes great pride in her appearance. She is not currently employed but spends her time preparing for music and performance exams. Z has, as my judgment reveals, taken many risks in the past in the way she has lived her life and made her relationships; some of that risk-taking has probably caused her harm. The essential questions in this case now are whether(a) that risk-taking arises from her lack of capacity, or is an ordinary feature of her adolescent life (or both), and(b) whether over the last year or so, since the inception of these proceedings, she has matured and/or learned from her mistakes.[3]Z is on the autistic spectrum with a diagnosis of Aspergers Syndrome, and has borderline learning disability (IQ 70-75). The Local Authority in whose area Z lives, has been involved in Z’s life for a little over two years, and in June 2014 issued proceedings in the Court of Protection seeking declarations as to Z’s capacity to: i) Choose her residence; ii) Make contacts with others; iii) Deal with her care; iv) Litigate in these proceedings. It is within these proceedings that I am now invited to consider the question of Z’s capacity.[4]In order to reach conclusions, I heard evidence from Z, from X (Z’s mother), from WBC’s current key social worker, and from Dr. Lisa Rippon (consultant developmental psychiatrist). Additionally, I received considerable documentary evidence, including most helpful attendance notes from the consultant solicitor appointed on behalf of the Official Solicitor. X opposes the Local Authority’s case. The Official Solicitor, on Z’s behalf, having called Z to give evidence and having tested the evidence of the Local Authority, invites me to conclude that the local authority has failed to prove its case, and that Z has capacity in the various matters under review.

Litigation

[5]I wish to make three important points about this litigation, and this hearing.[6]This hearing, at which I am considering the ‘gateway’ jurisdiction of capacity, is taking place 18 months after the issue of proceedings. The hearing (which was conducted over two days – 2 and 3 December 2015) was set up by directions which were given on 23 December 2014, one year ago. I have examined with counsel the listing difficulties; no blame for this falls on any one body. However, valuable time has been lost in resolving basic issues about Z’s capacity to make routine decisions, and all the while she has been subject of interim orders under the MCA 2005.[7]Secondly, the expert assessment of Dr. Lisa Rippon Consultant Developmental Psychiatrist, on which much reliance is placed by the local authority in this case, was conducted well over one year ago now. Dr. Rippon was asked to see Z again in preparation for this hearing, but was able to do so only on 30 November (less than 2 working days before the hearing); Dr. Rippon’s updated views were communicated to the parties and the court in a short e-mail. This was far from satisfactory.[8]Thirdly, the hearing has been set up for me to consider the issue of Z’s capacity in respect of the relevant ‘matters’, but (in the event of a finding of lack of capacity) no substantive welfare issues. I am concerned that no specific provision had been made for the listing of a follow-up hearing before me in the event that I was to find that Z lacked capacity. Judicial continuity is as important in this jurisdiction as it is in the family courts; it would be inappropriate, in my view, for another judge to consider the best interests issue concerning Z once I have determined capacity. Quite apart from any other consideration, the issue of capacity may require re-visiting, particularly if in the meantime ‘P’ has been assisted to reach a capacitous decision (section 1(3)). When case managing litigation of this kind, attention must be given to achieving judicial continuity.[9]Quite apart from the burden on Z herself of these proceedings hanging over her for an unacceptable period of time, these procedural shortcomings render all the harder the decision-making in this case. Steps are being taken to improve the case management efficiency of the Court of Protection, as signalled by Sir James Munby P in Re MN [2015] EWCA Civ 411. In that judgment (at [100]) he spoke of the “striking contrast between the time some personal welfare cases in the Court of Protection take to reach finality and the six-month time limit applicable in care proceedings by virtue of section 32(1)(a)(ii) of the [Children Act 1989]”, and the fact that “the recently established ad hoc Court of Protection Rules Committee is actively considering the need for reform”. This case illustrates well that more efficient case management rigour is urgently required in this jurisdiction.

The law

[10]The statutory test of capacity under the Mental Capacity Act 2005 is now well-established, and the applicable principles have been amply discussed in the case-law. In the days immediately prior to this hearing, MacDonald J delivered judgment in the case of Kings College Hospital NHS Foundation Trust v C and V [2015] EWCOP 80. Both counsel appearing before me relied on the summary of the law relevant to capacity conveniently summarised in that judgment at paragraphs [24]-[39]; I agree broadly with his distillation of the law, and adopt it without reproducing it in full here. Nonetheless, it is right that I should identify some of the key principles which have governed my approach in this case.[11]I start from the proposition that Z is presumed to have capacity (section 1(2)); in making a relevant determination I am statutorily enjoined to consider both the ‘diagnostic’ (section 2) and the ‘functional’ (section 3) elements of capacity, acknowledging that the decision is (per section 2) both time and ‘matter’ specific (“'For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain”: wording underlined for emphasis). The information relevant to the decision under review includes information about the reasonably foreseeable consequences of deciding one way or another (section 3(4)(a) of the 2005 Act). I remind myself that I should not treat Z as “unable to make a decision” unless “all practicable steps to help [her] have been taken without success” (section 1(3)), and significantly should not treat Z as unable to make a decision “merely because [she] makes an unwise decision” (section 1(4)). I guard myself against considering outcome, or potential outcome, when determining the functional ability of the subject.[12]It is not necessary for a person to use and weigh every detail of the respective options available in order to demonstrate capacity, merely the salient factors (see CC v KK and STCC [2012] EWHC 2136 (COP) at [69]). Even though a person may be unable to use and weigh some information relevant to the decision in question, they may nonetheless be able to use and weigh other elements sufficiently to be able to make a capacitous decision (see Re SB [2013] EWHC 1417 (COP)).[13]It is clear that determination of capacity under Part I of the 2005 Act is always 'decision specific'; in PC v City of York Council [2013] EWCA Civ 478, [2014] 2 WLR 1, McFarlane LJ, in approving Hedley J’s formulation (“what the statute requires is the fixing of attention upon the actual decision in hand. It is the capacity to take a specific decision, or a decision of a specific nature, with which the Act is concerned”) said this at [35]: “The determination of capacity under MCA 2005, Part 1 is decision specific. … all decisions, whatever their nature, fall to be evaluated within the straightforward and clear structure of MCA 2005, sections 1 to 3 which requires the court to have regard to 'a matter' requiring 'a decision'. There is neither need nor justification for the plain words of the statute to be embellished”.[14]Thus, capacity is required to be assessed in relation to the specific decision at the time the decision needs to be made, and not to a person's capacity to make decisions generally. Where that decision is in relation to residence, the issues which a person would consider would be likely to include (per Theis J in LBX v K and L [2013] EWHC 3230 (Fam) at [43]): i) what the options are, including information about what they are, what sort of property they are and what sort of facilities they have; ii) in broad terms, what sort of area the properties are in (and any specific known risks beyond the usual risks faced by people living in an area if any such specific risks exist); iii) the difference between living somewhere and visiting it; iv) what activities P would be able to do if he lived in each place; v) whether and how [s]he would be able to see his/her family and friends if [s]he lived in each place; vi) in relation to the proposed placement, that [s]he would need to pay money to live there, which would be dealt with by his appointee, that [s]he would need to pay bills, which would be dealt with by his/her appointee, and that there is an agreement that [s]he has to comply with the relevant lists of "do"s and "don't"s, otherwise [s]he will not be able to remain living at the placement; vii) who [s]he would be living with at each placement; viii) what sort of care [s]he would receive in each placement in broad terms, in other words, that [s]he would receive similar support in the proposed placement to the support [s]he currently receives, and any differences if [s]he were to live at home; and ix) the risk that his father might not want to see him if P chooses to live in the new placement.[15]It is important to note 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 (see Re SB (A Patient: Capacity to Consent to Termination) above. at [38]).[16]Finally, and significantly, the burden of proof lies on the person asserting a lack of capacity and the standard of proof is the balance of probabilities (section 2(4); and see KK v STC and Others [2012] EWHC 2136 (COP) at [18]).

Relevant background history to January 2015

[17]Z lives with her mother and until recently a half-brother in the area of W Borough Council, in the north-east of England. Her father lives separately. Her half-brother, who has mental health and behaviour difficulties, has recently moved out.[18]Z attended mainstream school, and told me (I am not sure how reliably) that she had obtained a number of GCSEs. She reported that she had many friends at school, although contemporaneous records in fact show her to have been rather isolated and a loner. After school she went on to train in the field of beauty therapy at a local education college, but her passion has always been, and is, music; Z keenly wishes to be a singer. In 2012, Z appeared in a televised talent show; it was not a success. Sadly she now regards the experience as humiliating and she is embarrassed by her performance. She dropped out of college and became depressed. A referral was made to CAMHS. She started to display risky behaviours; her performance was available to view on the internet, and she was deluged with contacts through web-based social media, mainly from men. She met with some of those who contacted her, some of whom allegedly abused or exploited her. She became sexually disinhibited, and some of her sexual experiences were believed to be non-consensual. Over a period of time, Z received support from SECOS (Sexually Exploited Children’s Outreach Services); although she appeared to show some insight into the risks of her behaviours, it became apparent that she did not always apply this insight or learning into practice, and continued to place herself at risk. The last evidence of this kind of risky behaviour with men now goes back to 2013 or (at the latest) 2014.[19]In 2013, Z was assessed by a clinical psychologist who concluded that she did not have a diagnosis of learning disability, and she retained capacity to make decisions about social contacts.[20]Like many young people, Z occupies her time on different forms of social media. Unlike many, at one time she removed all the privacy settings on her account, and was alleged to post up provocative material about herself. It was said (though she denied it, and I make no finding about it) that she had at one time sent naked photos of herself over the internet for money. For a time, though in my judgment to a much lesser degree now, she craved publicity for her singing, and was focused on becoming a celebrity.[21]For a period following the involvement of WBC, Z had the benefit of a structured daily routine provided by a care agency called Dimensions. Z had an ambivalent relationship with the agency, but its structured input and assistance produced significant improvement in Z’s understanding of the risks to which she had been exposed, and distracted her from her destructive cycle of behaviours. Her daily rota included activities such as gym, basketball, cinema outings and singing lessons. Even though Dimensions has ceased to play an active part in Z’s life it plainly put her life back on the right track, and Z continues to attend singing lessons and music school; she is a regular attendee at the gym where she likes to work out.[22]In June 2014 proceedings were issued by WBC, as the Local Authority was concerned about Z’s behaviour, and her mental health, and wished the court to determine Z’s capacity to make decisions in relation to residence, contact with others, the care she receives and litigation; there was a further issue over whether Z had capacity to consent to sexual relations. Interim declarations in relation to Z’s lack of capacity to make decisions about contact, and care have been made.

Expert assessment: prior to January 2015

[23]Psychometric assessment of Z conducted in 2013 revealed that she has a full-scale IQ in the region of 70, though with adaptive functioning in the borderline disability range. She was further assessed as suffering from an autism spectrum disorder because of long-standing evidence of pervasive social difficulties, repetitive behaviours and stereotyped language. Separate assessment at the same time revealed that Z had capacity to make decisions about social contacts (as indicated above), indicating that this was not an issue of cognitive capacity, but that:
“… for [Z], the gains associated with such behaviour outweigh the risk. We may disagree with this assessment but [Z] retains the right to make unwise decisions unless grounds exist to question her capacity in this area. It seems clear that [Z]’s past experiences, emotional disturbance and distress and sense of worth and esteem underpin her decisions in this regard.”
[24]In February 2014, Z was detained in hospital under section 2 (admission to hospital for assessment on the basis that “[s]he is suffering from mental disorder of a nature or degree which warrants the detention of the patient in a hospital”, and “[s]he ought to be so detained in the interests of [her] own health or safety”) then section 3 (admission for treatment) of the Mental Health Act 1983 due to the escalating concerns about the risky situations to which she was exposing herself. She was then assessed by Dr. P who reported that Z has a diagnosis of Autistic Spectrum Disorder which: “… impacts on her ability to generate ideas and consider potential outcomes and consequences. She shows a poor ability to learn from teaching and experience, and a poor ability to apply learning”.[25]Dr. P considered that Z was particularly vulnerable to influence from those around her, reducing her ability to weigh information in reaching a decision.[26]In September 2014 Dr. Lisa Rippon, consultant developmental psychiatrist, was jointly instructed in the case by the Official Solicitor and WBC. Her principal report is dated 25 November 2014 (N.B. as indicated above, at the time of the hearing it was more than one year old), following interview with Z on 13 November 2014; she prepared an addendum in January 2015 (following further interview on 16 January 2015) to answer a number of questions raised by the parties. On 30 November 2015, Dr. Rippon interviewed Z for a third time. Dr. Rippon is an experienced psychiatrist who has conducted many such assessments.[27]Dr. Rippon diagnosed an autism spectrum disorder, displaying some difficulties with ‘theory of mind’ (Z’s inability to “put herself in other’s shoes”). She concluded that this 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.”
[28]Dr. Rippon was of the view in 2014 that Z was unable to identify the risks which she could place herself in, and she over-estimated her ability to keep herself safe. Overall, her conclusion was that the areas of deficit identified are “secondary” to her autism spectrum disorder, that her condition is life-long and not amenable to treatment. She also concluded that Z has a borderline intellectual disability which “should be regarded as an impairment or disturbance in the function of the brain”. This opinion does not, as it happens, entirely square with the MCA Code of Practice [4.12] which contemplates as an example of an impairment or disturbance in the functioning of the mind or brain a “significant” learning disability.[29]Dr. Rippon concluded her 2014 report by indicating that with support, exposure to positive role models, and opportunities to engage in activities to improve her self-esteem 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.”
[30]In further interview in January 2015, Z told Dr. Rippon that she believed she could now make decisions for herself acknowledging:
“I know I have made bad decisions but I have changed, I have matured.”
When asked by Dr. Rippon if she thought that there would be risks involved in her decision-making, she said: “There are always going to be risks, but I know I can make the right decisions. I think anyone would be the same. I am bigger and stronger. I have learned how to make decisions. I am capable of making my own decisions. I have changed … everything has happened for a reason. It made me stronger and made me more mature”.[31]In the January 2015 interview, it appears that Z demonstrated a good degree of insight into the debacle of her talent show audition, indicating that she would decline further opportunities for a repeat for the time being (“not at the moment, I don’t think I’m ready”). She showed a realistic, if not cynical, view of why men had shown such interest in her following her television appearance (“it’s obvious, men wanted sex with me…”). She denied inappropriate use of social media (“I have kept away from social media … I don’t want to go back to square one”), showing an understanding that people contacting her through social media “might be a risk to me”.[32]Dr. Rippon considered that Z showed interest in fame and celebrity status to an “unusual” degree. Dr. Rippon considered that Z had misinterpreted the talent show judges’ comments, and had formed a misguided appreciation of her impressive progression through the audition stages (as a possible object of ridicule rather than through talent). Dr. Rippon was concerned about Z’s “difficulty in processing information particularly that of an abstract nature”, and was of the view that “… during the course of the proceedings, [Z] would struggle to be able to understand the evidence, either in written or verbal form, that is given in Court, process this information and use it to instruct her counsel appropriately. I also do not believe that [Z] would be unable (sic.) to think through the consequences of the instructions which she is providing to her solicitor or understand the risks to herself of any instructions given”.[33]Dr. Rippon added:
“I would entirely agree that many twenty-two (sic.) year olds will often make unwise decisions and over-estimate their own ability to live independently. However, I would argue that in [Z]’s case even with support she was unable to think through the consequences of, for example, living without support and use her past negative experiences to help her make decisions regarding her future. As I have stated, although many twenty-two year olds will make unwise decisions, they are generally able to learn from negative experiences, and use this to support their future decision making, something which I believe [Z] has failed to do.”
[34]Dr. Rippon considered specifically Z’s capacity to decide on residence. In order to demonstrate capacity to decide on her residence, Z must show some understanding of what living in a particular environment would involve (see [14] above). In discussion with Dr. Rippon Z was:
“… able to acknowledge that her mother completes most of the household chores in the family home, looks after most of the budgeting and is there for support if she needs it. [Z] had some understanding that wherever she lives the house should be relatively tidy, she will need to manage her money effectively, she should keep herself clean and tidy and undertake shopping for food on a regular basis. [Z] had a relatively good understanding of the more concrete tasks necessary in order to live successfully in any type of environment but, in my opinion, she struggled to weigh-up the positives and negatives of living at home, compared to living independently in a flat or with an organisation such as ESPA (Education and Services for People with Autism). [Z] expressed an understandable wish to be independent but, in my view, because of her under-estimation of the risks involved in living by herself without the support of another individual, be that her mother or a care worker…”
[35]During the course of these proceedings, Z has oscillated in her views as to her favoured residence option for the future. Even during the first day of the hearing her view changed; when the hearing began, she was expressing the preference to live independently. But on the afternoon of the same day, when she gave her evidence, she said that she wanted to remain living at home. Z’s change of mind during the hearing about her choice to live independently did not appear to be capricious or without reason, but instead a direct reaction to the confirmation given (during the course of the oral evidence of the social worker, to which Z was listening as she sat in court) that if she were in independent accommodation, her home would be alarmed, so that the care agency would know when she was coming and going – an understandable resistance to a deprivation of her liberty. Dr. Rippon was clear that this oscillation was not of itself reflective of a lack of capacity.[36]In order to be able to make an informed choice about care, Z needs to appreciate the kinds of care available to her, and the potential positives of receiving such care, including the development of her independent living skills, and structure. In her January 2015 interview, she appeared to acknowledge some deficits in understanding about budgeting, cooking and household tasks but considered that she could “learn all of that stuff myself”.[37]In interview with Dr. Rippon in 2014, Z was indeed able to acknowledge that having support from Dimensions has proved “helpful”, and that the input had helped her to “mature” but could not articulate specifically what had been helpful. Dr. Rippon was concerned that Z had little appreciation of the dangers of accessing social media, and of the possible benefits of having supports around her to channel her energies away from this. In her January 2015 interview she complained of Dimensions talking “down to her” which she felt had made her “self–esteem go down”.[38]An informed choice about contact with others would include an understanding of the positives and negatives of having contact, or a relationship, with another individual, and an ability to assess the risks posed by another individual or situations from which to extricate herself if she were vulnerable to exploitation. In this respect, Dr. Rippon opined in 2014 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.”
[39]That said, in discussion with Dr. Rippon in November 2014, Z showed a good awareness of the issues surrounding sexual intercourse:
“… she was able to give me a description of the physical act of sexual intercourse and understood that this can result in pregnancy and sexually transmitted diseases. [Z] was aware that there were a number of types of sexually transmitted diseases and that, catching such an infection, can have a significant impact on an individual’s health. [Z] understands that if she did not want to engage in a sexual act with another individual she can say ‘no’”
. Dr. Rippon concluded that Z had/has capacity to consent to sexual relations, and this has not been in issue before me.[40]Dr. Rippon was of the view in 2014 that Z understood information regarding the court process but she struggled to understand why anyone would think that she could not make decisions for herself. She was assessed as having “very limited insight” as to why there are significant concerns about her behaviour and the risks she was placing herself in; she also “had limited understanding of the impact which her autism spectrum disorder has on her ability to estimate risks and make decisions for herself which are not going to leave her in a dangerous position”.[41]I should say at this stage that I found the accounts of Z’s 2014 and 2015 interviews with Dr. Rippon only partially helpful; this is not a criticism of the manner in which the interviews were conducted or recorded, or of Dr. Rippon herself. Inevitably lengthy assessment sessions need to be summarised for court reports. Equally inevitably, in summarising the exchanges between the interviewer and the interviewee some of the context, nuance, and character of the discussion is lost, even where the summaries are supported with directly quoted text. Having read the reports several times, with care, I was left unsure that I had received a complete or rounded picture of what Z was saying; some of Z’s specific responses were included to illustrate the expert opinion that she lacked capacity, but on my reading of them could just as easily have shown merely naivety, immaturity, diffidence, or embarrassment. That naivety, immaturity, diffidence or embarrassment may well not translate into (or necessarily evidence) a lack of capacity. It was, in the circumstances, particularly valuable to have the chance to hear from Z myself, and form an assessment of her, assisted by Dr. Rippon’s expertise, when Z herself gave evidence in court at the hearing.

Relevant background history: January 2015-December 2015

[42]More than a year has passed since Dr. Rippon’s principal (November 2014) assessment, which I have summarised above. During this period, Z has been monitored by WBC, although her engagement with the social worker has been patchy.[43]In early 2015, Z formed a relationship with a woman, A. She met A through the social media site ‘Badoo’, although it transpired that at the point they ‘met’ A was presenting under a false name and identity. Z’s relationship with A became a sexual relationship; A visited Z’s home a number of times, staying over with Z for three or four nights at a time, and met Z’s mother, X. A’s true identity was revealed, and she explained her hoax profile as something she had done “for a laugh”, though Z continued to view A as someone who was “sly”. A is said to be a Syrian national. X thought that A had a “normal and nice personality”, but during one of the visits had a surprising conversation with X when A “blamed” X for Z’s autism, which left X upset. Notwithstanding this, X supported the relationship between Z and A, which appeared to be generally positive.[44]In or about April 2015, A invited Z to visit her in her home town in Brighton. The visit took place and was not altogether a success. Z was met from the train by A accompanied by a “foreign” male friend of A’s; Z felt “insecure” and “worried” (her words in oral evidence) in the company of the male friend. Soon after her arrival at A’s home, someone knocked on the door; A told Z to be silent, and she did not answer the door. Z found this worrying. Later in the visit, A suggested that she and X should engage in sexual activity with a third person as a ‘threesome’; Z did not want to do so (she told me that she felt “distraught and disgusted” by the suggestion), and they argued. Z told me that they had developed “trust issues” on the trip, and she had “a bad feeling” about A. On the next morning, Z caught a train home (which she accomplished on her own, though with some limited help from an old friend who she appropriately contacted). Z and A have not seen each other since.[45]Z spoke in evidence with a degree of insight about the ‘toxic’ relationship with A, explaining that it was “intense” and they were “always hurting each other” (Dr. Rippon thought that Z had a good understanding of the word ‘toxic’). In recent times, A had sent Z a hurtful message, and Z had ‘blocked’ her as a social media contact.[46]On 21 June 2015, X called the social worker, reporting that Z was threatening to kill herself. Z accepted this had happened but played it down, saying that she had said things that she did not mean.[47]From March 2015, Z disengaged from Dimensions; in May 2015, Z told the social worker that she believed that Dimensions had been helpful, and indeed the representative from Dimensions regarded Z as “more confident”. In July 2015, she largely disengaged from the social worker and the contacts became sporadic; the social worker’s final statement (October 2015) reflected that:
“… there are improvements in that [Z] presents with a more mature attitude, and appears less preoccupied with her phone”
.

Expert assessment: December 2015

[48]Dr. Rippon undertook a further assessment session with Z in the days immediately prior to this hearing. She also sat in court while Z gave her evidence. Shortly prior to this hearing Dr. Rippon conveyed her updated views, in summary, in the e-mail to which I referred in [7] above:
“Since my last meeting with [Z] there has been an improvement in some areas of her behaviour and presentation. She has not recently met people who may contact her via social media (with the exception of [A]). She is obviously more confident and her self esteem is very good. [Z] is not focused to the same degree in becoming famous or getting a recording contract. Despite the improvements noted above, in my opinion [Z] continued to over-estimate her abilities to keep herself safe or manage without support … although she is now aware she should not contact people via social media and this aspect of her presentation has improved, she continued to under estimate her vulnerability.”
[49]Dr. Rippon acknowledged when giving evidence that Z’s risk-taking behaviour has significantly subsided during the last 12 months, and she currently keeps herself safe. Attention was inevitably focused on the only episode which has caused professional concern in the period since the reports were produced – Z’s trip to visit A in Brighton. Dr. Rippon considered that this episode shows that Z still struggles to estimate risk, understand abstract concepts, and manage problem-solving as a consequence of her autism. She felt Z over-estimates her ability to keep herself safe, and underestimates her own vulnerability; that in order to be confident that Z has capacity, Dr. Rippon indicated that she would be looking for Z to develop and display insight, that she is not putting herself in risky situations and is understanding of other people’s motives. Dr. Rippon was concerned that A’s hoax profile on Badoo had not triggered alarm bells for Z, though acknowledged that as Z (and her mother) had met A several times before the Brighton trip, any objective concerns would have been moderated by having been able to form a personal view about A. That Z still regarded A as a “sly” person even before the trip to Brighton revealed to Dr. Rippon that Z was not protecting herself from risk.[50]Putting it in simple terms, Dr. Rippon thought that Z struggled to “join the dots” between a risky situation and its potential consequence, and that this difficulty was attributable to her autism. In terms of the MCA 2005 test, it was, in her view, Z’s inability to ‘use or weigh’ (section 3(1)(c)) the information relevant to risk which rendered her incapacitous in the relevant ‘matters’ to which attention is drawn in this case, which she summarised as an inability to understand the positives and negatives on emotional wellbeing. Dr. Rippon said that it was “very difficult” to identify what Z needed to demonstrate in order to permit for the conclusion that Z was indeed capacitous in the key matters under discussion. Dr. Rippon accepted that Z understands the difference between living alone and living with her mother, and that if living alone, bills would need to be paid, the cooking and cleaning done; Z appeared to understand in broad terms the difference between living in a good and bad area of town. Dr. Rippon accepted that Z could have help with her finances, had a “rough idea” of her benefits, and understood that the proposal of the local authority was that any independent accommodation would need to be alarmed. In resisting the need for help, Dr. Rippon acknowledged that Z may simply not have wanted to admit that she needed support. Dr. Rippon thought that Z could learn new skills, particularly if she formed positive relationships with people who could help her; she recognised that there is now evidence that she is already learning skills to keep herself safe without a relationship with a key social worker. Going forward, Dr. Rippon recommended that Z should have access to supports to help her to make sense of risks, whatever my decision on capacity.[51]Dr. Rippon was concerned that Z gives only superficial answers to questions which require analysis and thought, using language some of which (she suspected) is borrowed from song lyrics; she felt that Z struggled to give deeper explanations for her views. Having said that, she acknowledged that Z’s answers in evidence in court were “better than those she has given previously” in the three interviews. Z’s wish to participate in a singing performance on the second day of the hearing rather than attend court exemplified, in Dr. Rippon’s view, her lack of insight into the concerns of the local authority. In fact, I do not accept that view, and entirely understood Z’s wish to honour her commitment to perform, which is, as Dr. Rippon herself observed the activity on which she appears focused to the exclusion of many others.[52]Dr. Rippon concluded her evidence by indicating that she regarded this as an “incredibly difficult case”; she said that there have been “times when I have questioned whether it is a lack of wisdom or lack of capacity; it is not clear-cut and straightforward”. She told me that it was one of the most complex cases she had been involved in recently. Dr. Rippon acknowledged that Z is a young person who wants a normal life. Z told Dr. Rippon in terms:
“I’m a normal 20 year old, I should be allowed to lead my own life”
.

Assessment of Z

[53]Z attended for the first day of the hearing, and gave unsworn evidence. She did not attend on the second day, as I have earlier mentioned. Her conduct in court was entirely appropriate; she was suitably and smartly dressed, and gave evidence in a calm and measured way. She concentrated well for the duration of her evidence, was courteous to counsel and to me. She did not appear anxious or distressed. Given her learning difficulties, I was surprised by the sophistication of some of her answers, although acknowledge that this may have been in part attributable to her having learned certain phrases.[54]She showed insight into her dismal talent show audition (“it was overwhelming … my nerves seemed to overtake my vocals… it was vocally bad”). She discussed the way in which she had been exploited by men who had contacted her, saying that there was a “bad light” around her at that time; she spoke candidly about her relationship with A (“I was in love with her”), indicating that through their behaviours towards each other they “pushed each other away”. She recognised that she had been concerned that A was “sly” from early on in their relationship. Z recognised that the Brighton trip was not successful, and in her oral evidence discussed openly her own discomfort when confronted with different situations which she found unnerving.[55]Z had been seen by her solicitor in the days prior to the hearing; she had been able properly to identify her mental condition (autism). She had acknowledged the value of having some “guidance” on living independently, although she was not sure that she “necessarily” needed it. She told me in evidence that it would be “difficult” living independently, and that it would be “quiet”. At present, she acknowledged that life is easy and is rent-free. She recognises that her mother does all the care for her; although Z said she can cook, her mother does all the cooking at present. She did not feel that she wanted to have someone (i.e. a social worker) “following” her if she were to live independently – she said she would feel like a “dog on a lead”.[56]Z told me enthusiastically about her weekly routine of activities, from which she plainly derives considerable enjoyment. Credit is due to Dimensions for setting Z on the right track in this respect. She aspires, reasonably in my view, to obtain work; she told me that she would like to take up work in a sports’ retailers, which seemed to me to be an entirely realistic objective.

The arguments

[57]Mr O’Brien on behalf of the Local Authority highlights a number of incidents in Z’s life as demonstrative of Z’s risky and promiscuous behaviour; the evidence of these behaviours dates back to 2013, or (at the latest) in October 2014. Mr O’Brien invited me to “infer” that the same level of risk remained the same throughout 2015, to the date of trial; the absence of clear evidence of risk-taking (he contended) arises simply from the fact that that during 2015 the local authority has simply not been able to monitor the situation as effectively as it had previously been able to do. He contended that the Brighton trip was ‘all of a piece’ with Z’s pre-proceedings risky behaviour: Z had not considered the consequences of her actions in travelling to Brighton to stay with A when it was apparent (it was contended) that this would be essentially risky. Lack of capacity to make decisions concerning residence and care is established by Z’s lack of appreciation of her need for support, and community based supervision, to enable her to life safely; it is argued by the Local Authority that Z does not want support yet (it is contended) she so palpably needs support that this exposes her lack of ability to “use or weigh” the relevant information. Mr O’Brien refers to her contact with A as evidence of risky continued use of social media.[58]Ms Rickard strongly contends that the burden on the Local Authority to rebut the presumption of capacity (section 1(2)) has not been discharged; it remains more likely than not, on the evidence, that Z has capacity to make the relevant decisions. She argued that the Brighton trip does not provide evidence of careless risk-taking; on the contrary, while the decision to travel to Brighton may have been, on one construction, unwise, the evidence discloses a degree of awareness of the various risky situations which arose, and an entirely appropriate response (i.e. to leave) when Z felt that the situation had become intolerable. She contended that Dr. Rippon had insufficiently analysed the current data, and had (like the Local Authority) given insufficient credit to Z for her greater maturity and experience; she speculated that by suggesting that Z needed to demonstrate that she could avoid risk, Dr. Rippon had inadvertently reversed the burden of proof.

Discussion

[59]The Local Authority was perfectly justified in initiating proceedings in June 2014, at what was a very low point in Z’s life when her self-destructive behaviour was posing a significant threat to her well-being, and her capacity to process key decisions was significantly in question. I am inclined to the view (this is not, for obvious reasons, a finding) that she probably did lack capacity to make decisions on the matters under review at that time. However, having reviewed the contemporaneous material with care, and on the evidence available to the court at this hearing, I have reached the conclusion, on a fine balance, that the local authority has not rebutted the presumption of Z’s capacity in relation to the matters under review in this case, at the present time.[60]There is no dispute in this case that Z does suffer from an “impairment of … the mind” within the meaning of the MCA 2005, namely her autistic spectrum disorder, with a secondary component being her learning difficulty. The issue as to her capacity focuses in this case on the functional element of the test. At the heart of the dispute is the assessment of Z’s ability to ‘use or weigh’ information (section 3(1)(c)) about risk to herself, and her ability to keep herself safe in independent living, and in her social contacts. Only if I were to find that Z is “unable” (section 3) (and I emphasise ‘inability’ rather than ‘impairment’ – see again [15] above) to process information relevant to risk (in the ways defined in section 3(1)) could I find her incapacitous in relation to the matters in dispute. As the wording of the statute makes clear, the point in time at which I must capacity is to be tested is now (i.e. “at the material time”).[61]In order to determine Z’s capacity, it is not necessary for her to use or weigh every detail of the respective options available, merely the salient factors (see CC v KK and STCC: [12] above). In this case, it is apparent to me that Z does indeed understand the essential implications of living at home or living independently; as indicated above, Z acknowledged the benefit of having some “guidance” on living independently. She recognised that she would reasonably expect to be allocated a flat, and was able to distinguish between the ‘good’ areas and ‘bad’ areas of town in which to live. I am (perhaps unlike Dr. Rippon) sufficiently persuaded that Z recognises at a material level the benefit of third party support in the event that she is to live on her own. She showed insight into the possible loneliness of living independently; she felt that one of the downsides of leaving home is that she will lose the benefit of having her mother’s “shoulder to cry on” when things are getting her down. She has an outline knowledge of her financial circumstances, and currently appears able to perform basic budgeting. She seems aware that her life is easy now, as all the bills are paid, and she is cared for; I felt that she recognised that she would be giving these comforts up if she were to move. Overall, I am satisfied that Z is able to ‘use or weigh’ the evidence relevant to the matters set out by Theis J in LBX v K and L (see above) at [14].[62]In relation to social contacts, Z needs to be able to weigh up the risks of associating with strangers, particularly those whom she meets through the internet – something which she says that she has indeed learned to deal with through experience. Dr. Rippon acknowledged that, other than with A, there was no evidence of Z making contacts through social media which were of any concern. The fact that she has rejected any ongoing support or care from Dimensions is not evidence in itself that she lacks the capacity to decide on its usefulness. She has articulated her reasons: she does not feel that she currently needs the package, and she feels that the workers are constantly talking about the past not the future, and they ‘talk down’ to her.[63]Dr. Rippon expressed the view in November 2014 (see [29] above), that with time and increased maturity, Z’s ability accurately to assess risk may improve; it is my view that the evidence now available (December 2015) indicates that time and increased maturity, and the benefit of learning from experience, have indeed had that effect. There is no real issue but that 2015 has been a period of relative stability for Z; she has engaged (to a limited extent at least) with the support which is provided for her through Dimensions, and even within the limits of that work, she has impressed the workers with her display of increased maturity. In 2014, Dr. Rippon advised that it would be sensible to re-assess Z’s capacity in “two to three years time”, plainly contemplating a potential future change in capacity, but timescales of this kind are notoriously difficult to gauge, and in my view the evidence appears to have revealed change rather sooner.[64]While it may have been that Z showed an “unusual” degree of interest in fame and celebrity in the past (to some extent in 2014, when first interviewed by Dr. Rippon), and a limited appreciation of the quality of her talent-show performance, I do not find that she continues to hold or display these views. More recent discussions (including her evidence in court) reveal a good degree of awareness of the deficiencies of her performance, and a more realistic appraisal of her quest for fame. At the hearing before me, she impressed as someone who was more than just aware that “people should treat you with respect”, apparently mindful that people had not done so in the past. Dr. Rippon expressed scepticism in her 2014 report about Z’s ability to understand the evidence which was to be given in Court, process this information and use it to instruct her counsel appropriately; this scepticism was I believe misplaced. Z showed a good level of attention to the evidence, gave instructions to her solicitor and counsel, and – even on Dr. Rippon’s own view – answered questions in evidence better than she had during the three previous interviews.[65]Dr. Rippon entirely fairly observed that young adults are generally able to learn from negative experiences, and use this to support their future decision making. She felt that Z had failed to do this; I do not agree. Z’s behaviour in 2013 and 2014 was, I am prepared to accept for present purposes, intensely destructive; I accept Z’s own assessment that she has at least to some extent “learned how to make decisions”. I accept that she has changed, and I was impressed with her own assessment that “… everything has happened for a reason. It made me stronger and made me more mature” (see [30] above).[66]Dr. Rippon indicated that she would be looking for Z to develop and display insight, that she is not putting herself in risky situations and is understanding of other people’s motives; the trip to Brighton to stay with A was risky to some extent, but not more than usually risky for a young person who is in love, and who has met the object of her affections a number of times on home territory before heading off to see her at her home. Moreover, when the Brighton trip became intolerable, she left.[67]As indicated at the outset of this judgment, some risk-taking in adolescents and young adults can be perfectly healthy, such as in sporting activities, or artistic and creative pursuits, travelling, making new friends (including internet dating and friendship groups), or entering competitions. Healthy risk-taking helps young people to learn. Some adolescent risk-taking can be unhealthy and dangerous – casual sexual relationships, unprotected sex, driving too fast on the roads, excessive consumption of alcohol, consumption of non-prescribed drugs, dealing with anger and confrontation. These forms of risk-taking are inherently unwise and unsafe. In dealing with risk issues in relation to a young person in the context of assessment under the MCA 2005, it is necessary to separate out as far as is possible the evidence which indicates that second category of risk taking (unhealthy, dangerous, unwise) from that which reveals or may reveal a lack of capacity. As Lewison LJ said in PC v City of York (above) “adult autonomy” includes the freedom “to make unwise decisions, provided that they have the capacity to decide” (see [64]).[68]Lewison LJ also referred in the same case (PC v City of York) to the need for a “solid evidential foundation” on which the judge's decision as to capacity can rest. In this case, as I have earlier mentioned, Mr O’Brien invites me to ‘infer’ a continued existence of risk, and Z’s inability to ‘use or weigh’ information relevant to such risk. An inference can barely be described as an evidential foundation, let alone a ‘solid’ one.[69]I have not found this a particularly easy decision, in the main, because more than a year had passed between the filing of the principal evidence and the hearing. Moreover, I am conscious that I am differing in my conclusion from Dr. Rippon, who in many ways was an impressive and helpful witness and who, as I have indicated above (see [52]) also found the case “incredibly difficult”. In differing from Dr. Rippon, I remind myself 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. I consider that Dr. Rippon may well have been right in her assessment as to Z’s capacity over a year ago (November 2014), but in my judgment, 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. While the Brighton trip illustrates some unwise decision-making, in fact its greater significance lies in its revelation to me (in contrast to Dr. Rippon) that Z had developed sufficient ability to ‘use or weigh’ information which indicated risk, and insight into the consequences of her choices. In the way she described the visit when giving her unsworn evidence, it is apparent that she was alert throughout the trip to the potential hazards (i.e. the events which made her uncomfortable) and when the relationship with A appeared to be deteriorating badly, she took the appropriate step, entirely independently, of returning home.[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.[71]That is my judgment.

Cited in 9 later judgments