Nottinghamshire County Council v JW & Anor [2026] EWCOP 13 (T2)

Case No 14246332[2026] EWCOP 13 (T2)
IN THE COURT OF PROTECTION
Date 19 March 2026
Nottingham Regional Court
Before
His Honour Judge Rogers(sitting in retirement)
Between
Nottinghamshire County CouncilClaimantJW (by her Accredited Legal Representative)DefendantSWDefendantNottinghamshire County Council- and -JW (by her Accredited Legal Representative)-and-SW
Mr Lindsay Johnson (instructed by Lead Solicitor, Adult Social Care) for Local AuthorityMs Natalia Perrett and Ms Emily Reed (instructed by Switalskis) for JWMs Deborah Shield (instructed by Ramsdens) for SWHearing Hearing date: 4 March 2026
JUDGMENT
[1]This case concerns JW who is a 57 year old married woman. Her husband of 30 years is SW. The issue before the Court at this hearing is the fundamental and jurisdictionally necessary question of JW’s capacity or lack of it. At the conclusion of the hearing on 4 March 2026, I announced my decision, namely that JW has capacity in all material areas of decision making. I said I would send out full reasons at a later date. These are they.[2]It is a matter of profound regret that this is the fourth full judgment within these proceedings, three by me on 3 December 2024, 19 August 2025 and this one and that of Poole J, hearing an appeal from my fact-finding decisions, on 19 December 2025 reported as SW v Nottingham City Council The correct local authority is Nottinghamshire County Council. and JW [2025] EWCOP 53 (T3).[3]That these proceedings began in March 2024 and only now is the Court engaging definitively with capacity questions speaks volumes. This judgment is not the appropriate vehicle for an analysis of this delay but I acknowledge how unacceptable it is and very much regret the possible damage to JW’s wellbeing caused by her anxiety and uncertainty.[4]The cumulative bundle now comprises 2294 pages Bundle references are by section (A-I) and number. . Much is now historical, procedural or irrelevant to the issues in hand but I have read all pertinent material for this hearing. Since late 2024 there has been judicial continuity and so I have had the advantage of real familiarity.[5]Relations between the legal teams have not always been ideal but I am delighted to report that this hearing has been conducted on all sides with great professionalism, clarity and economy. I have received three excellent position statements and the quality of the advocacy has been high.[6]In the course of the many hearings in this case I have, at her request, spoken informally, via the video link, with JW. Notwithstanding the difficulties and vulnerabilities of which I have read, JW is a clear and articulate speaker, well able to conduct an informal conversation and express her views. I have been at pains to explain to her that our conversations were not an opportunity for me to gather evidence. As it happens, nothing she said to me differed from more formal expressions of her case tendered mainly, but not exclusively, on her behalf by her Accredited Legal Representative, Ms Burridge-Todd. I emphasise, however, that I have not used anything JW said to me in my evidence based forensic investigation of capacity.[7]Reference can be made to earlier judgments, without repeating the detail here, for the relevant history. I adopt gratefully the section entitled “Background” from paragraph 6 in Poole J’s judgment (D267) which sets out succinctly the salient neutral features. Rather surprisingly, to my mind, JW has not hitherto received a clear psychological or psychiatric diagnosis notwithstanding her very long and sustained relationship with public services of many sorts. Fortunately for the Court and probably for JW co-incidentally, Dr Todd has formed a clear view of the correct diagnosis which is accepted on all sides and I find is sound. He diagnoses her as having borderline intellectual functioning with an Intelligence Quotient of 79, placing her at the 8th percentile. The current reality for JW and SW is that they live in separate care homes, both have significant physical medical needs, both use wheelchairs (and in SW’s case he spends a lot of time in bed) and are to some extent restricted in terms of their contact with each other. None of that is factually controversial. At the heart of this case is the nature of the relationship between them and how the emotional and/or psychological aspects of it impact upon JW both in terms of her decision making abilities and, more generally, in terms of her best interests. This element has proved far more contentious and the Court has already spent a substantial amount of time in its analysis.[8]As the uncontroversial chronology shows the issue of “fact-finding” arose at an early stage. Although the precise positions of the parties have vacillated over time, there has been a recognition that the allegations against SW underpinning the local authority’s case have always been denied, wholly or mainly, by him and either denied or minimised by JW. In the majority of cases the resolution of disputed facts is in play when considering best interests decisions. In this very unusual case, it seemed to the parties that even when considering capacity issues, a firm factual basis was required. They sought a fact-finding hearing but District Judge Buss disagreed. My first involvement in the case was to determine the appeal against his order. I allowed the appeal See my judgment of 3 December 2024. and gave directions for the fact-finding hearing.[9]That hearing over three days was highly contentious. The evidence was voluminous and the witnesses numerous. The local authority had distilled the case into seven headline allegations but the accompanying schedule of evidence was extremely detailed with a very large number of references to documents or statements of witnesses. JW did not give evidence but SW did.[10]Although the evidence was dense and multifaceted, the outcome for me was clear. I found that the evidence in support of all but one of the headline allegations was overwhelming. I had no hesitation in making six of the seven findings and also indicated my acceptance of the vast majority of the underlying factual material. I rejected SW’s denials or exculpatory explanations.[11]I need not quote extensively from my judgment of 19 August 2025 save to highlight a few passages. As well as making key findings as to the accuracy and reliability of the underlying purely factual accounts of the witnesses, it seemed to me that a detailed critique of SW was required not only to decide what he did or did not do but also, and perhaps more importantly, to decide his motivation. I said this at D202:
“ 38. My overall impression of SW is clear. He was tearful and feels badly treated. He sees himself as a victim. Although he articulates a primary concern for JW’s welfare, he is, in my judgment, essentially self-centred and prioritises his own needs. He does so, in my judgment, in part at least out of fear of being isolated and unsupported. He avoids personal responsibility and seeks to blame others. He uses a mixture of relentless criticism and some bullying and intimidation, although not physically. He is clearly manipulative. There were even examples of that in the hearing and his deferential and humble demeanour in my presence is atypical. (Upon receipt of this judgment in draft Ms Shield invited me to clarify this paragraph and to particularise the examples I mentioned. The balance of this paragraph is that clarification.) I am sorry to have to spell it out as it may appear harsh. SW’s demeanour and presentation were obsequious and self-pitying. In his answers he portrayed himself as the victim of circumstances rather than accepting any significant degree of responsibility or culpability. He was trying to attract my sympathy. When talking about his use of a wheelchair, he added gratuitously that he had not walked for 30 years. When being questioned about missed or cancelled appointments, his response was deflective by saying that nurses deferred visits too as if that was some kind of explanation for his default. He described himself as being lectured rather than interviewed by professionals. These are, in my judgment, examples of manipulative answers deployed in the hearing in a manner designed to influence me to see him essentially as a victim. I stress that I place no reliance in my assessment upon SW’s physical infirmity or the fact that he gave his evidence from his bed. They are genuine and matters beyond his control. I also ask myself whether the demeanour described can be attributed to SW’s documented mental ill-health in its various aspects. I am satisfied it cannot. 39. To the extent that he made specific denials of factual matters, where there is clear evidence of the sort I have identified in the preceding paragraphs, I prefer that to his denials and it follows that on such matters the local authority has satisfied me on the balance of probabilities that the factual accounts are made out.”
[12]Having outlined my specific factual findings I then analysed at some length the implications of those findings in the context of the local authority’s overarching allegation that the conduct of SW is properly to be characterised as coercive and controlling. I continued at D203:
“ 42. More generally, this was and would remain a very one sided relationship if the domineering and controlling approach so often adopted by SW continued. I have no doubt at all that his behaviour over time represents a course of conduct that has harmed JW, physically and emotionally. Its impact is severe. It has had the immediate and potentially long lasting consequence of disempowering JW. Her autonomy has been severely compromised and her decision making abilities undermined. 43. Looking at the matter in terms of the first stage of the test, the evidence of fact and impact is clear and indeed, in my judgment, overwhelming. 44. The local authority invites me to go further and characterise the position as demonstrative of coercive and controlling behaviour clearly amounting to abuse. I find this a difficult question. It may not, for the reasons given by Mr Johnson, in the end matter as the impact upon JW is clear and profound whether SW’s behaviour is classified as abusive or not. However, as the point has been debated prominently in the hearing it seems incumbent upon me to express my view. 45. The picture in the end is mixed. There are aspects of SW’s character which drive him to behave in the way he does irrespective of his intention or motivation. His suspicion of authority and his tendency towards aggressive interference are almost ingrained. On the other hand, there is a selfishness which is deployed quite deliberately because he wishes, in part out of fear but not exclusively, to prioritise his own situation and he sees JW’s circumstances as less important than his own, however much he may protest to the contrary. 46. He undoubtedly loves JW, as she does him, but, I am profoundly saddened to say, it is a distorted love on his side. It is not unconditional and mutual. He needs her to be dependent to satisfy the imbalance in the relationship. I am sorry to make what look like harsh findings but it seems to me essential to reveal the underlying complexities if we are to move through the other aspects of this case. ……… 48. In consequence, I am persuaded that the factual conduct described is properly categorised in part as coercive and controlling. It is not classic domestic abuse where the intent of the perpetrator is clear and single minded, namely to harm and control the victim. This case is much more complex and subtle. Some of SW’s motivation is distorted but not in itself malign. It is driven by his personality. However, a significant and conscious element is deliberate. On many occasions SW has chosen to prioritise his needs over JW’s. He is indifferent to the impact upon her. He is comfortable in an unequal relationship. To that extent his motivation is intentional and so it is proper to characterise this situation as having a significant abusive element.”
[13]SW, supported by JW, appealed against my findings. Poole J dismissed the appeal, thereby endorsing the findings as they went forward to the capacity investigation. Reference has already been made to his judgment. His review was extensive and in passing he made a number of insightful comments in relation to the task ahead. The parties and the Court were alive to the complicated issues but his Lordship’s thoughts have helped to focus the mind on several prominent matters that have been explored in this hearing.[14]In particular Poole J’s comments about the diagnostic element and the relevance of coercive and controlling behaviour when considering a causative nexus between the functional and diagnostic elements were obviously germane. He said at D271:
“20. In this appeal I am not concerned with Dr Todd’s conclusion that JW’s “borderline intellectual functioning” met the diagnostic test, nor the potentially nuanced question of the causal nexus between her inability to make decisions as to care, residence and contact, and her borderline intellectual functioning. However, being a victim of coercion and control is unlikely to be found to be an impairment of or a disturbance in the functioning of the mind or brain. A victim of coercion and/or controlling behaviour may or may not lack mental capacity to make certain decisions including contact with the person who exercised control or coercion. A person who otherwise has mental capacity but is who is so subjugated by abusive behaviour that their will is overborne, may be the subject of an application to the High Court to exercise its inherent jurisdiction to protect the autonomy of such a person. 21. Questions might have been put to Dr Todd about whether having “borderline intellectual function” operating at the 8th percentile, can satisfy the diagnostic test.”
[15]The only oral evidence given at this hearing was from Dr Nicholas Todd, a consultant clinical psychologist. He had produced three reports, dated 24 August 2024 (I1), 30 January 2025 (I87) and 22 October 2025 (I112). The chronology is important. The first two reports were produced before the fact-finding hearing.[16]In his first report Dr Todd made clear that he was aware that the allegations against SW raised by the local authority were disputed and at that point unproven. He put them to JW as “concerns” rather than as established facts. Notwithstanding that approach, those representing SW and JW were worried that, in fact, he had assumed the truth of the allegations in arriving at his conclusions. They pointed to phrases such as “She (JW) severely minimised the concerns of the Local Authority about the negative impact of SW’s contact with her” (I35) which Dr Todd goes on to rely on in formulating his opinion without further qualification.[17]The potential difficulty identified in Dr Todd’s approach was in part the reason for the successful appeal against the decision of District Judge Buss.[18]Dr Todd’s second report was in large part clarificatory as he responded to a series of questions. Question 3 (I93) specifically raised the issues of whether it was clear that JW was dealing with allegations only at that stage and what difference different factual outcomes might make to Dr Todd’s opinion. His response (I102) is important and so is quoted in full:
“3.3. Answer 3: The focus of my discussions about relationships were her relationship with her husband as documented. Mrs W was given examples of coercive and controlling behaviours the LA had been concerned about. I had no reason to doubt her understanding of these examples as she responded to them appropriately giving me context and her position of these behaviours. All the way through my discussion with Mrs W about the behaviours of her husband I made it clear that these are the things the LA are saying. She was aware that she was challenging these things through her own solicitor. During the capacity assessment, I took a neutral position, by putting these things to her and gauging her response. I was aware no findings of fact had been made and did not form the view that she had necessarily been subject to coercive and controlling behaviours. However, it must be reconsidered (sic) in any finding of fact hearing that Mrs W’s borderline intellectual functioning, will make her more susceptible to coercive and controlling behaviour and will mean she struggles to identify the negative consequences of it, when on the receiving end of it. This is the case for the many people with borderline intellectual functioning. Should a finding of fact hearing find that the allegations of the LA are unsubstantiated, in my professional opinion, Mrs W would not lack capacity around contact with her husband as my current opinion relies on the fact she is unable to understand, use and weigh the LA’s concerns.”
[19]That answer alongside the balance of the second report seemed to me to reinforce the need for the fact-finding hearing which had already been directed. The third report was duly produced and formed Dr Todd’s concluded view for the hearing.[20]At the hearing, inevitably the focus of attention was upon Dr Todd’s third report but, for reasons I will expand upon later, it is, in my judgment, important to review Dr Todd’s opinions as they developed through the various reports. In the first report, Dr Todd was clear that, in his opinion JW lacked capacity in all the identified areas of decision making whether or not they involved SW, for example in relation to JW’s own care needs or use of the internet or social media. In the second report, Dr Todd did not individually revisit each area of decision making but sought to explain his opinions by responding to the questions posed. Importantly, he did not revise his opinion in respect of any area of decision making. A close reading of the second report persuades me that Dr Todd’s view is influenced by his assessment of the malign impact of SW’s presence in the process or his influence over JW in limiting her autonomy. He could, but chose not to make any distinction in the second report between those decisions involving or inextricably linked to SW and those which did not, for example in relation to JW’s individual care or medical needs, although to be fair to Dr Todd he seems to have relied heavily upon the proposition that SW was at times an impediment to JW accessing proper medical treatment.[21]His third report represents a significant change of position for Dr Todd. His ultimate view is that JW does have mental capacity in relation to decisions about residence and care and support where the available options do not involve cohabitation with SW. Similarly his opinion is that JW does have mental capacity to make decisions about contact with people outside of a romantic relationship. He adheres to his earlier expressed view that JW lacks mental capacity in relation to decisions involving SW and generally as to the conduct of this litigation. He was not asked to revisit his opinions on the questions of the internet or social media.[22]The third report obviously postdates the fact finding hearing but, apart from that, the only significant change was simply the passage of time. At my specific request Dr Todd had been asked to comment briefly on the potential issue of fluctuating capacity. Helpfully he indicated clearly that this was not such a case. In the light of that, the stance in the third report was clearly a change of position and inevitably he was questioned by counsel to try and establish whether he had reversed his opinion in part or whether his view had simply developed in the light of his repeated interviews with JW against the passage of time and enforced separation of her and SW. This was, in my judgment, fundamental to an understanding of Dr Todd’s evidence and so I must consider it with care later in this judgment. As will be seen, in my judgment, Dr Todd’s evidence became even more complex as a result of some new and potentially contradictory responses given in his oral testimony.[23]The legal basis for any decision on capacity is happily well known and settled. That said, I am grateful to counsel for their focussed submissions and helpful bundle of authorities. As there was no dispute between them I can deal with basic principles quite shortly. The starting point, of course, is the key provisions of the Mental Capacity Act 2005. They are to be read against the comprehensive guidance to be found in the leading judgment of Lord Stephens in the Supreme Court in A Local Authority v JB [2021] UKSC 52.[24]The Act provides as relevant to this case: 1. The principles(1) The following principles apply for the purposes of this Act.(2) A person must be assumed to have capacity unless it is established that he lacks capacity.(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.(5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.(6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action. 2. People who lack capacity (1) 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. (2) It does not matter whether the impairment or disturbance is permanent or temporary. (3) A lack of capacity cannot be established merely by reference to— (a) a person’s age or appearance, or (b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity. (4) In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities. ……………. 3. Inability to make decisions (1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable— (a) to understand the information relevant to the decision, (b) to retain that information, (c) to use or weigh that information as part of the process of making the decision, or (d) to communicate his decision (whether by talking, using sign language or any other means). …………. (4) The information relevant to a decision includes information about the reasonably foreseeable consequences of— (a) deciding one way or another, or (b) failing to make the decision.[25]The judgment of Lord Stephens in JB is deserving of rereading and citation at length but as the law is, in my judgment, now clear and counsel in this case are agreed as to its essentials, if not precisely as to its application to the particular circumstances, I content myself with the following, covering the key principles:65. “The core determinative provision within the statutory scheme for the assessment of whether P lacks capacity is section 2(1). The remaining provisions of sections 2 and 3, including the specific elements within the decision-making process set out in section 3(1), are statutory descriptions and explanations which support the core provision in section 2(1). Those additional provisions do not establish a series of additional, freestanding tests of capacity. Section 2(1) is the single test, albeit that it falls to be interpreted by applying the more detailed description given around it in sections 2 and 3: see the judgment of McFarlane LJ in York City Council v C at paras 56 and 58-60.66. Section 2(1) requires the court to address two questions.67. The first question is whether P is unable to make a decision for himself in relation to the matter. As McFarlane LJ stated in York City Council v C at para 37, “the court is charged in section 2(1), in relation to ‘a matter’, with evaluating an individual’s capacity ‘to make a decision for himself in relation to the matter’.” The focus is on the capacity to make a specific decision so that the determination of capacity under Part 1 of the MCA 2005 is decision-specific as the Court of Appeal stated in this case at para 91. The only statutory test is in relation to the ability to decide. 78. If the court concludes that P is unable to make a decision for himself in relation to the matter, then the second question that the court is required to address under section 2(1) is whether that inability is “because of” an impairment of, or a disturbance in the functioning of, the mind or brain. The second question looks to whether there is a clear causative nexus between P’s inability to make a decision for himself in relation to the matter and an impairment of, or a disturbance in the functioning of, P’s mind or brain. 79. The two questions under section 2(1) are to be approached in that sequence.”[26]Lord Stephens mentions York City Council v C PC and NC v York City Council [2013] EWCA 478 with approval. It was also cited before me, Ms Perrett and Ms Reed describing it as essential reading. In my judgment, it does contain a most helpful reminder of the need for particular caution and adherence to the strict criteria in the Act in what might be called borderline cases. In his judgment McFarlane LJ makes the following observations both as to the general approach to be adopted and as applicable in that case. The facts are of course entirely different but the emphasis upon a rigorous approach to the functionality test and the need for a clear and unambiguous nexus with the diagnostic element are pertinent: 51. “The difficulty in the case thus arises from the potential for the understandable professional concern about a vulnerable woman going to live with NC to impact upon the mental capacity assessment under MCA 2005 in a case where the degree of mental impairment lies in the borderline area. In such a case Mr Bowen is right to assert that the structure and provisions of the MCA 2005 are to be applied with clarity and care in order to ensure that the autonomy of the individual is not eroded by the court in a case which, in reality, does not come within the statutory provisions. 52. Against the background that I have described, the need for the Court of Protection to adhere to the structure established by MCA 2005, Part 1 is all too clear. In particular:a. a person is not to be treated as unable to make a decision merely because he makes an unwise decision (s 1(4)); andb. for the Court to have jurisdiction to make a best interests determination, the statute requires there to be a clear causative nexus between mental impairment and any lack of capacity that may be found to exist (s 2(1)). 53. Mr Butler's reference to Baroness Hale's description of the approach that underpins the MCA 2005 is timely; the court's jurisdiction is not founded upon professional concern as to the 'outcome' of an individual's decision. There may be many women who are seen to be in relationships with men regarded by professionals as predatory sexual offenders. The Court of Protection does not have jurisdiction to act to 'protect' these women if they do not lack the mental capacity to decide whether or not to be, or continue to be, in such a relationship. The individual's decision may be said to be 'against the better judgment' of the woman concerned, but the point is that, unless they lack mental capacity to make that judgment, it is against their better judgment. It is a judgment that they are entitled to make. The statute respects their autonomy so to decide and the Court of Protection has no jurisdiction to intervene. 54. Mr Bowen correctly submits that there is a space between an unwise decision and one which an individual does not have the mental capacity to take and he powerfully argues that it is important to respect that space, and to ensure that it is preserved, for it is within that space that an individual's autonomy operates. 59. Approaching the issue in the case in the sequence set out in s 2(1), the first question is whether PC is 'unable to make a decision for herself in relation to the matter’, the matter being re-establishing cohabitation with NC now that he is her husband and now that he is has regained his liberty. In this regard the fact that PC has capacity in all other areas of her life (save for litigation) and, in particular, has capacity to marry, is very significant. Hedley J's findings [paragraph 21] that PC is unable to understand the potential risk that NC presents and is unable to weigh up the relevant information [the factors in MCA 2005, s 3(1)(a) and (c)] are therefore distinct and apart from her capacity to undertake these tasks in relation to all other matters that fall for decision, including marriage itself. Against that background it was, in my view, necessary for the judge to spell out why he came to these conclusions, notwithstanding PC's capacity generally to make her own decisions. This the judge did not do. This omission is perhaps understandable as, in reality, the evidential basis for such a distinction had not been established. On that basis Hedley J's conclusion is not sustainable and the appeal must be allowed. 60. In the light of the finding that I have just made, the assessment of capacity under s 2(1) falls at the first of the two component parts. Insofar as the second part, the mental health element, is concerned, I have already questioned whether Hedley J's findings go so far as to hold that the inability to decide is 'because of' PC's compromised mental ability. In this regard the need to delineate why and how her mental impairment is insufficient to rob her of capacity in all other fields, yet is sufficient to be the cause of her asserted inability to decide to go to live with her husband is on all fours with the need for such clarity with regard to the first limb of s 2(1). For the reasons that I have already given, the evidence in the case is insufficient for this task and the judge's findings on this limb must also fall away.”[27]A number of other authorities were drawn to my attention or included in the list of authorities. I do not propose to cite from them extensively but will refer to salient principles in the course of my analysis later in this judgment.[28]In broad summary the submissions of Ms Perrett and Ms Reed, adopted by Ms Shield, were that on the whole of the evidence JW has capacity in all areas. They argue that JW has the crucial ability to use and weigh material in relation to any decision, even if the weighing process is relatively unsophisticated and can lead to a decision which objectively might be regarded as unwise; that her borderline intellectual functioning on the facts of this case and in her particular circumstances does not meet the qualifying diagnostic test under the Act and that the particular complications around decisions involving or linked to SW can not properly be said to be “because of” an impairment of the mind or brain. They argue that Dr Todd has unfortunately fallen into the understandable trap identified by McFarlane LJ in York City Council v C of allowing professional concern for JW’s wellbeing to cloud the strict test required to assess capacity. In other words they submit that this case falls on any or all three essential limbs of the statutory test required to displace the presumption of capacity.[29]Mr Johnson relies upon the opinion of Dr Todd in his third report and argues that his reasoning is sound and that there is no credible reason for the Court to depart from it and therefore invites the Court to make capacity declarations in line with his views.[30]Expert evidence is only allowed if it is necessary. It must therefore be afforded the greatest possible respect. It must be remembered however that the decision maker in any case is the judge and, notwithstanding how eminent the expert, the court must not devolve the ultimate decision to the expert. The reality, of course, is that some areas of expertise are so niche, whether technical, scientific or medical for example, that it is very difficult for the judge to impose his or her view in preference to that of the expert. In my judgment, psychology does not fall within that category normally. That is emphatically not to say that psychology is a lesser field of expertise, merely that it deals with areas of conduct and behaviour, within the facts of the particular case, about which the Court is entitled to form its own opinion, from the facts established and the impressions made.[31]It is vitally important, in my judgment, if the judge is contemplating departing from the opinion of an expert that he or she nevertheless affords the expert’s opinion respect and gives it all possible weight before coming to a different conclusion. In such circumstances it is essential that the judge articulate clearly his or her reasons for such a departure.[32]Doctor Todd's expertise and experience are not in doubt. The summary at the beginning of each of his reports makes impressive reading. I particularly note his experience as a Special Visitor in the Court of Protection. Accordingly I do treat his opinions with great respect and deference. Nonetheless I have come to the clear conclusion that I must depart in some ways from both his analysis and his conclusions. I hope to explain clearly why that is so in the course of this judgment. I was, I confess, troubled both by some of the material in his written evidence and particularly with some of his oral evidence as it developed.[33]I can deal with one limb of the case presented by Ms Perrett and Ms Reed quite shortly. They submitted that Dr Todd had conducted his enquiries in the wrong order by beginning with questions of diagnosis and thereby had misapplied the statutory test. The basis for that submission is simply that Dr Todd deals first in his reports with diagnosis. I am quite satisfied that was simply a matter of convenience or style. There is nothing to suggest Dr Todd misunderstood his task or applied the wrong sequence. He told me he knew well what the statutory test was and I accept his evidence. He carefully expressed his conclusions in a way that is entirely consistent with the statutory test. It is also, in my judgment, highly improbable that an experienced expert with specific knowledge of the Court of Protection would make such an error. To her credit, after I raised my doubts with Ms Perrett over this submission, she did not pursue it vigorously.[34]In order to put my analysis in context, it is necessary to say a little about JW's background and upbringing. There is much material within the whole bundle, some of it quite sensitive, and it is not necessary to recite it on the face of this public document. Dr Todd’s first report has an extended first section which is extremely revealing and helpful. The medical chronology (I8) sheds light on the medical, behavioural and family relationship issues which affected JW’s development. It is clear from the chronology and other documents that she attended for a time a special school, but, sadly, it does not appear that she ever received a detailed assessment of her educational or other needs. She was observed to have some intellectual impairment but, again, that does not seem to have ever been formally assessed or measured. Her day to day functioning was good. She was verbally able and independent. She met SW at school and they subsequently married. As a result of their various physical and psychological needs there has always been a high level of interdependence. Without repeating them, my findings in the fact-finding hearing demonstrate an unfortunate dysfunctional element to their relationship.[35]Given the length of and depth of the relationship it is no surprise that there is a high level of emotion in their dealings and in areas of decision making involving them both. Dr Todd emphasised that and increasingly, in my assessment of his evidence, relied upon it as his opinion developed in his oral evidence.[36]In order to understand my decision in this case it is necessary to look individually at the three crucial elements in play namely the functional, the diagnostic and the causative nexus.[37]As briefly outlined already, it is clear that JW is competent and independent in many aspects of her life. Quite apart from the analysis in Dr Todd’s report, there are numerous examples in the bundle of her clear expression of her views and her detailed considerations of matters her regarding life and wellbeing. An important duty of an Accredited Legal Representative is to ascertain the views of their client and to allow them to participate in the proceedings to the maximum extent commensurate with their abilities and weaknesses. In this case, as in many, Ms Burridge-Todd or her colleagues have frequently visited JW to update her and ascertain her views. The statements and attendance notes are full and revealing. In many cases where P is significantly impaired such documents are sad demonstrations of an obvious lack of capacity. Nothing could be more different in this case. The discussions recorded are lengthy and detailed with JW clearly showing an ability to assimilate and to weigh up the information provided and to respond appropriately.[38]None of this is really controversial in the light of Dr Todd’s ultimate opinion that JW has capacity in a number of significant areas of decision making. It is perhaps surprising, with hindsight, that his original view was she lacked capacity in all areas he was asked to consider. In his first report he identified that the only real issue in terms of the functional test was in the realm of using or weighing information. Dr Todd relied upon the “concerns” of the local authority, then unproven but in fact vindicated by my later findings, in putting matters to JW. The phrase he used repeatedly was that she “severely minimised” her care needs or the concerns, as the case may be. From that directly, he found that she was unable to use or weigh the relevant material. He did not explain how a tendency to minimise led to an absolute inability as opposed to a reduced ability. I have to say that on such a crucial part of his opinion I would have expected a more detailed or nuanced analysis. By definition “minimisation” is not the same as completely excluding something from the thought process.[39]Looking back at the material upon which Dr Todd based his opinion His lengthy clinical interview and review of notes (I23 ff). , I am bound to say that my impression of JW’s understanding and use or weighing of information is far more favourable. There is clear evidence that she understands and distinguishes between options and is able to express an apparently considered view. At this stage the influence or relevance of SW, which by the third report had become decisive in Dr Todd’s mind, was not a differentiator although was clearly a very important factor in her thinking. In my judgment, however, even at that stage, it was not overwhelming every other consideration so as to make a proper decision, using or weighing material, impossible.[40]Dr Todd’s second report contains answers to questions arising from his first. In my judgment, his comments are not merely clarifications but amount to a refinement of his earlier opinion. I have already quoted from Answer 3 at paragraph 18 above. I do not propose to add to the length of the judgment by further extensive quotation but I acknowledge the importance of the additional answers. To be fair to him, he does address the apparent omission identified previously as to the effect of the “minimisation” of material. For example when talking of the effect of SW’s behaviour upon JW he characterises her tendency to minimise “concerns” or criticisms as more significant than is commonly seen in other victims of domestic abuse. See Answer 6 at I104[41]In my judgment, the crucial refinement is the distinction, in terms of assessing capacity, between the different factual situations dependent upon the Court’s impending finding of fact hearing. This is undoubtedly a different analysis from the position in the first report. He says at the end of Answer 4 at I103:
“My opinion regarding Mrs W’s capacity around her residence and care relies on the concerns of the LA being substantiated. Should a finding of fact hearing find that the allegations of the LA are unsubstantiated, in my professional opinion, Mrs W would not lack capacity around residence and care.”
He gives a similar opinion in relation to contact in Answer 3, already quoted in paragraph 18 of this judgment.[42]These crucial distinctions, absent from the first report, are clearly important. They show, in my judgment, not just the need for a clear factual base but the crucial importance of the role of SW whether as a controlling influence or merely as a factor in the decision making process. Plainly I will need to give this careful consideration in the final part of the analysis dealing with causal nexus.[43]My view of Dr Todd’s second report, with all possible respect to him for attempting to clarify matters, is that, in the end, it raises more questions than it answers. The necessity of a third report is obvious.[44]By the time of the third report, my findings had been made and Ms Burridge-Todd had had an opportunity to discuss them in detail with JW, who, of course, had sat through the remote hearing. JW had read what is a lengthy and at times complex document. In the Attendance Note at G3864, JW appears to acknowledge at least some of SW’s behaviour as damaging if not malicious. That is properly characterised as down playing its seriousness but, in my judgment, is also evidence of an individual processing the material in question however sadly and reluctantly.[45]In his third report, Dr Todd also reviews the findings in clinical interview with JW. It is plain that JW engaged with him and addressed the issues. I have no doubt that she did not accept every aspect of the judgment, down played aspects and sought excuses or explanations. However, my reading of the discussions is less stark than Dr Todd’s. I can see an individual struggling to make a decision and placing emphasis on matters which an objective observer might view as carrying undue weight or of down playing important factors in the balance. Ms Perrett and Ms Reed, rightly in my judgment, point, by way of example to paragraph 3.3.1 at I127 which they submit in fact from his own report undermines his own conclusion. It reads:
“Residence: Mrs W was provided with the relevant information about all options above including the possibility of living with her husband (LBX v K & Ors [2013] EWHC 3230 (Fam), paragraph 43). She was able to understand and retain the descriptive features of each option. However, when weighing potential options that includes her husband, her reasoning becomes distorted by minimisation of the established risks and by an overriding wish not to live apart. Although she now acknowledges that his actions led to obstructed healthcare, that he prioritised his needs, that harm occurred “not deliberately”, she continues to downplay their implications for future living arrangements, stating she does not believe the behaviour was abusive and has difficulty appreciating the risk of recurrence or identifying early warning signs if patterns were to re-emerge (“I would like to think none of that would happen”). This means she cannot use and weigh the risks of renewed obstruction of professional access, imbalance of power, and erosion of independence leading to health deterioration against the safety/benefit profile of alternative placements. Mrs W clearly communicated her preference was to live with her husband regardless of the risks that have been identified. Her mental capacity is impaired by borderline intellectual functioning, which affects her executive functioning and limits her ability to use and weigh relevant information to make informed decisions.” 46. A close reading of this passage and similar others in the report shows Dr Todd chooses expressions such as “minimises”, “down plays” and “limits”
. They are in my judgment descriptions of the application of weight to a point rather than obliterating it altogether. I differ from Dr Todd who asserts confidently that these observations of JW persuade him that she “cannot use and weigh” for example the risks. In the end it is, in my judgment, a matter of degree. 47. Understandably Dr Todd was questioned closely about this aspect of his evidence in his oral testimony. Effectively, he repeated his analysis. He explained that JW’s diagnosis means in practical terms that she has an “executive function impairment”. His emphasis on this aspect was not new but seemed to me to have become more prominent. He said that in any decision involving or related to SW the additional emotional overlay and JW’s desire to live with SW so distorted her functional competence that she simply could not and did not use or weigh the material. Ms Perrett and Ms Reed point to the reference at I120/1 where Dr Todd describes JW as having “emotional understanding when discussing sensitive issues” but he remained firm in his opinion. 48. In my judgment there is clear evidence of JW using or weighing information in all areas. I accept that decisions involving SW would be more highly charged and potentially more difficult for her but I am satisfied that, nevertheless, she retained the necessary ability. I was reminded by Ms Perrett and Ms Reed of the rigour to be applied to this assessment. It is perfectly possible for an individual to use or weigh material even if a particular point, apparently of relevance to an objective observer, is afforded no weight at all. See Kings College NHS Foundation Trust v C and V [2015] EWCOP 80. Equally it is axiomatic from the wording of the Act that if using or weighing material leads to an unwise decision that is not in itself sufficient to negate the process. 49. In the end, I come to this decision upon all the evidence before me without hesitation. The point is quite a fine one and Dr Todd’s view is one deserving of respect and so is not lightly rejected. However, in my judgment, the core evidence, including that gleaned by him during his clinical examinations, points to a more nuanced finding that JW can use or weigh material. It follows that the functional element which is the prerequisite for a displacement of the presumption of capacity is not met in this case. 50. Strictly, this is enough to dispose of the case, but given the sensitivities and complexities, it is important to address fully the other two limbs. 51. The diagnosis of borderline intellectual functioning is based upon Dr Todd’s reading of the background material and formal testing. He sets it out clearly in his first report at I22 and 34 where he reports:
“Results: Mrs W completed the entire WAIS-IV assessment. Her performance indicates weaknesses across all indices of intellectual functioning (See Table 1). She obtained a Full-Scale Intelligence Quotient (IQ) score of 79 (75 - 83), falling within the ‘Borderline’ range (8th percentile). Perceptual Reasoning was identified as a relative strength and Processing Speed a relative weakness in her profile, with a significant difference found between these two indices. Her score for Processing Speed fell within the ‘Borderline’ range (4th percentile). All other indices fell within the ‘Low Average’ range: Verbal Comprehension (13th percentile), Perceptual Reasoning (21st percentile) and Working Memory (13th percentile). There was no significant difference identified between her verbal and nonverbal reasoning abilities.” “On my assessment of her intellectual functioning, she obtained a Full-Scale Intelligence Quotient (IQ) score of 79 (75 - 83), falling within the ‘Borderline’ range (8th percentile). Mrs W’s Verbal Comprehension, Perceptual Reasoning and Working Memory (this is her ability to hold in mind and manipulate verbal information) were in the ‘Low Average’ range. Her Processing Speed was within the ‘Borderline’ range. Mrs W’s profile suggests borderline intellectual functioning rather than an intellectual (learning) disability as she does not present with significant impairments across all domains of intellectual functioning. People with borderline intellectual functioning have a lot of difficulties in common with those with a mild intellectual (learning) disability but not at the same level of severity.” 52. The “borderline” overall assessment is plainly largely a result of JW’s lower processing speed as opposed to the other aspects where she is much stronger and in much higher percentiles than the overall position in the 8th percentile. Significantly, Dr Todd does not ascribe to JW a formal learning disability, even in the lowest category of “mild”. 53. Section 2 of the Act refers, as applicable here, to “an impairment…..in the functioning of…..the brain”
. It is not further defined. I am prepared to accept, as it has not been argued to the contrary, that borderline intellectual functioning is capable in some circumstances of satisfying the statutory test. The real question is whether a deficit of the sort displayed by JW, who in many regards is properly described as “high functioning”, can accurately be described as qualifying under the Act, which, as a matter of policy and philosophy, is designed to promote autonomy and not unnecessarily to disempower. It is not a matter for this judgment but there is a profound question, more suitable for philosophers or neurologists, to identify how brain function changes between the ultra-intelligent genius at one end, the mass of the population in the middle, albeit with varying degrees of intellectual ability, and the profoundly learning disabled at the other and where on that spectrum, if it is possible to identify, those simply less able than others can point to an “impairment” as an explanation. 54. This potential issue clearly troubled Poole J in the passage already quoted in paragraph 14 of this judgment, just as it troubles me. Again, Dr Todd was questioned closely. He drew a distinction between borderline intellectual functioning and a formal intellectual or learning disability. Unfortunately his evidence was not entirely clear or consistent. I first understood him to say that they were different things altogether but after some pressing he accepted that, although different quantitatively, they were broadly on a continuum from mild to severe. He stressed it was not quite as simple as that but broadly accurate. That seemed to me in line with the concluding sentence in the passage quoted in paragraph 51 above. 55. Whether a particular diagnosis on the facts of an individual case qualifies for the purposes of the Act is not, in my judgment, a matter of psychological or other expertise but is an evaluative decision for the Court. Some guidance is to be found in the Mental Capacity Act Code of Practice. At paragraph 4.12 it reads:
“Examples of an impairment or disturbance in the functioning of the mind or brain may include the following: • conditions associated with some forms of mental illness • dementia • significant learning disabilities • the long-term effects of brain damage • physical or medical conditions that cause confusion, drowsiness or loss of consciousness • delirium • concussion following a head injury, and • the symptoms of alcohol or drug use.” 56. Quite obviously the list is not exhaustive. Nor is it statutory. It is, however, helpful and informative. “Significant learning disabilities” is included. “Borderline intellectual functioning” is not. Dr Todd is neither concerned nor surprised at the omission. His evidence was that borderline intellectual functioning is less about the specific label attached and more about, for example, the impact on an individual’s executive functioning. In my judgment Dr Todd’s view presents difficulty. On the broad continuum discussed earlier, borderline intellectual functioning is on its face less serious or impactful than a serious learning disability. Its omission from the list of examples is, of course, not conclusive but, in my judgment, it is telling. When Dr Todd was asked to comment on this in his oral evidence he somewhat reverted to his position that they were not really comparable and moreover challenged the assumption that “significant” as an adjective really added anything. He pointed out correctly that “significant” was not a scientific term of art in the categorisation of learning disabilities. He felt there was a danger of over reliance upon that word and said in his opinion, although without external evidence to support this view, that it could properly be equated to any level of learning disability from “mild” upwards. 57. I have no hesitation in rejecting Dr Todd’s opinion on this point. Firstly, it seems to me to run counter to common sense and secondly, if the word made no material difference, the question arises as to why it was used at all in the Code as a qualifying term. This conclusion seems to me entirely consistent with the apparent view of Cobb J, albeit expressed obiter in a passing comment, in WBC v Z [2016] EWCOP 16 where he specifically draws attention to the examples in the Code and highlights the word “significant”. 58. Mr Johnson sought to pre-empt any “floodgates”, as he put it, argument based upon the fact that Dr Todd’s assessment placed JW at the 8th percentile. On a purely arithmetical basis that potentially would bring 1 in 12.5 of the population into the sphere of the Court of Protection. That would clearly not have been the intention of Parliament. I suggested if that proportion of the general population were deemed potentially incapacitous then not only the Court of Protection but many other branches of the justice system would have radically to change their approach. That would be particularly true in a jurisdiction such as public law family where many parents before the Court are obviously vulnerable or challenged. Mr Johnson accepted the logic but countered, correctly in my judgment, that it is the particular facts of the particular case which matter. In my judgment it would unhelpful for a tier 2 judge to express any concluded view on the level of functioning expressed in percentile terms necessary to qualify for consideration under the Act. I merely observe that 8 per cent is on its face a high figure. 59. In the course of his evidence Dr Todd sought to introduce some recent scientific literature Cognitive Profile of Individuals with Borderline Intellectual Functioning. Orio-Aparicio et al. Intelligence Vol 114, January/February 2026. not previously mentioned. Its late production was unfortunate but not, in the end, problematic. All counsel and the Court were able to review the relatively short paper over the lunch adjournment. Its findings were not examined in detail in the evidence. Dr Todd felt it was consistent with what he said and, in general, there was no dissent from that. In my judgment, nothing new emerges from the paper which is directly relevant to the Court’s evaluation in this case. In the Discussion section of the paper it is instructive to read: “The analysis of the reviewed articles suggests that individuals with BIF experience deficits in intellectual functioning across various domains. In general, deficits are reported in short-term and long-term memory (both verbal and visual), attention, logical and abstract reasoning, problem-solving, arithmetic skills, and concentration. Regarding executive functions, there seems to be a consensus that working memory is a key area of concern, along with cognitive flexibility, processing speed, and planning, all of which also present difficulties. Furthermore, the linguistic domain is affected, both in the oral and written aspects, as well as in comprehension and expression. Deficits are noted in lexical processing, reading fluency and comprehension, phonological awareness, and verbal fluency. From a neurophysiological perspective, issues are also observed in this population, with alterations in brain areas essential for cognition and behaviour. ………….. Furthermore, all these deficits appear to place individuals with BIF at a performance level between those with mild ID This is a Spanish paper and the use of the term intellectual disability (ID) seems interchangeable with the more familiar expression in the UK of learning disability. and those with an average IQ. In some cases, individuals with BIF experience even greater difficulties than those with specific learning disorders.” 60. Later in the Conclusion the paper states: “The results show that individuals with BIF present a wide range of difficulties in cognitive skills, placing them between those with mild ID and those with average IQ, a position that at times may seem like a sort of limbo.” 61. In my judgment this paper tends to show that borderline intellectual functioning and learning disabilities are closely related qualitatively although may vary quantitively. There is thus support for the continuum proposition explored in the evidence. I remain satisfied that JW’s intellectual difficulties are clear but amount to a less severe impairment than would be the case with a properly assessed learning disability. 62. Overall, I am not satisfied that JW’s condition amounts to a qualifying diagnosis for the purposes of the Act. This limb also prevents the Court from finding incapacity and would be sufficient to resolve the case. 63. Finally, even if the functional and diagnostic elements are established there needs to be demonstrated the causative nexus between the two. The Act uses the word “because” which could not be clearer. This has proved in many ways the most troublesome aspect of the case, given the earlier concentration on fact-finding and the role of SW. The refinement of Dr Todd’s opinion at the point of his third report so that he is satisfied that JW does have capacity in qualifying areas must be the starting point, in my judgment. In other words, it is clear that her borderline intellectual functioning with impaired executive functioning does not, in Dr Todd’s view, impair capacitous decision making on the whole. Only when the element of SW is introduced either as part of the process or as the object of the decision do things become problematical. 64. In his written evidence, Dr Todd mainly relied upon his view that JW minimised, to the point of ignoring, the question of risk inherent in SW. He argued, without setting out in detail why, that this rendered her functionality flawed as a result of her inability to evaluate matters properly because of her intellectual deficit. In the earlier stages of this judgment I have expressed my reservations about this approach and will not repeat the points. What remains troublesome in my mind is what, if any, interplay is there between the intellectual deficit and the influence of SW and what in fact is the operative causative mechanism in play? 65. Somewhat to my surprise and I suspect to others Dr Todd said in his oral evidence that, in the event, my findings are not directly relevant to his views or to the interpretation of JW’s behaviour. By that he meant, that whatever the findings and however much JW appears to have processed them, her entrenched view is immovable, principally because of the emotional weight created by all things to do with SW. He equated her entrenched view and the emotional weight directly to her intellectual deficit rather than the real time impact of SW’s behaviour. This was surprising not simply because the somewhat strident nature of the opinion but, more, because, Dr Todd had never really developed this hypothesis before. It seemed, if I may say so respectfully, that it was to some extent being developed as he spoke. That is, I emphasise, not fatal and it requires careful consideration by me but it is, in my judgment, difficult. 66. I have looked in vain in Dr Todd’s written evidence for an explanation as opposed to an assertion that JW’s inabilities are because of her intellectual deficiencies as opposed to the influence of SW. I have reviewed his oral testimony and frankly am not persuaded that he has explained the necessary causative link. It seems to me overwhelmingly clear, particularly in the light of my findings, that SW looms large in JW’s decision making. As between capacitous decision making, for example, in the sphere of residence, as against asserted incapacity if SW is a factor, the only variable is SW himself (whether exercising control or creating a different emotional state in JW’s mind). It does not seem to me too simplistic to conclude that the only reason therefore that, in the latter situation, JW is deemed incapacitous is “because of”
SW. That is not the necessary statutory nexus. 67. I respectfully agree with Poole J’s comments quoted in paragraph 14 of this judgment in relation to causal nexus. 68. I have no doubt that JW’s intellectual deficit is a factor but I remind myself not to fall into the trap exposed in York City Council v C (supra) where the trial Judge was content to say that the inability in question was “referable” or “significantly relates” to the learning disability. As McFarlane LJ explained in paragraph 60 of the report Paragraph 26 of this judgment that is insufficient. 69. My clear conclusion in relation to this aspect of the case is that the necessary causal nexus is not established. Under this limb also the case fails independently of the others. 70. I need to deal with other subsidiary submissions of counsel shortly. Ms Perrett and Ms Reed submitted that insufficient care was given by the local authority to the question of education or support for JW in her decision making. My preliminary view is that it may have made some difference but, in any event, it is unnecessary to undertake detailed analysis given my other conclusions. 71. Mr Johnson cited WU v BU, NC and A Council [2021] EWCOP 54, a decision of Roberts J. The facts are different but he submits that it is a useful parallel involving a case of controlling behaviour and its impact on decision making. In that case the diagnostic element was not in doubt. Taken in isolation one or two comments of the Judge appear to suggest that the link between controlling behaviour and the dementia, in that case, needs not to be unravelled so that the causal nexus can be established rather more casually. Having read the judgment as a whole it is clear to me that in context the Judge applied the correct test. In short that decision does not materially assist the local authority or me. 72. I have, of necessity, been critical of Dr Todd and have come to somewhat different overall conclusions. In my judgment our disagreement is quite narrow and essentially a matter of degree in relation to the interpretation of the particular facts in play. Nevertheless, I am extremely grateful to him for his careful approach and for the invaluable raw material compiled as a result of his efforts in reviewing voluminous materials and conducting detailed clinical examinations. 73. At one point in the argument, Mr Johnson described this as a finely balanced case. That is, in my experience, a slightly over used expression. Here, however, I see what he means. JW’s level of day to day functioning and independence always meant that the decision would be close to the intersection of capacity and incapacity. In the end, however, in my judgment, the balance tips decisively in favour of findings of capacity, not simply because of the statutory presumption or the operation of the burden of proof but upon a mature review of all the relevant factors in play. 74. It was for all those reasons that I felt confident at the close of the evidence that I should announce my decision there and then. 75. In their position statements counsel made various submissions as to the availability of other remedies under the Inherent Jurisdiction of the High Court in the event of my deciding as I have done. However, I did not think it appropriate to hear argument on that point and I express no view at all. 76. These proceedings are hereby concluded. I appreciate keenly that JW remains somewhat vulnerable and that her practical plans, whether or not they include SW, have yet to be finalised. I do hope that she will be afforded all possible support from relevant public bodies and services. I wish her well.