Case summary: A Local Authority v RS (Capacity) 2020 EWCOP 29

A Local Authority v RS (Capacity) [2020] EWCOP 29 (Mr Justice MacDonald)

• Mental Capacity Act 2005
• Capacity
• Causal Nexus between the Diagnostic Test and the Functional Test

Capacity assessors should be mindful:

• of the importance of not conflating a narrative account of risky decisions/unwise behaviour with a lack of capacity – there must be detailed and meaningful analysis of capacity by reference to the criteria set out in the MCA.
• when assessing P’s capacity, it is necessary to carefully consider the diagnostic and functional tests for capacity and the causative nexus between them.
• whether “other factors” (other than the impairment/disturbance identified in the diagnostic test) have a more significant impact on P’s decision-making – which may mean that P is able to make a decision notwithstanding the impairment/disturbance in the functioning of their mind or brain (i.e. has capacity) albeit makes unwise decisions.
• to avoid “general/generic” assertions or simply stating the elements of the functional test (e.g. “P is unable to understand or retain the relevant information”) without analysis of the evidence to demonstrate the inability.
• to give a clear and robust rationale for the conclusion regarding P’s capacity or lack thereof. Provide detailed and relevant analysis of the inability of P with regards to the element(s) of the functional test and how this is “because of” the impairment/disturbance identified in the diagnostic test.
• Whilst unwise or repetitively risky behaviour may be significant, it is not itself evidence of a lack of capacity per se. Repeated risk-taking behaviour may simply mean that the risk has been understood, weighed up and a decision made to take the risk again.  

Mr Justice MacDonald helpfully summarised the following important principles in relation to capacity:

1. P is presumed to have capacity;
2. Burden of proof is on the person asserting a lack of capacity;
3. Standard of proof is on the balance of probabilities;
4. Decision-specific – does P have capacity to make a decision about X?
5. All decisions are evaluated within the 2-part test under the MCA 2005;
6. Requirement to take all practicable steps to help P to have/gain capacity before concluding incapacity;
7. An unwise decision, in and of itself, does not mean that P lacks capacity;
8. The outcome of P’s decision is irrelevant to the assessment of whether P has capacity;
9. It is 2-part test; (1) diagnostic test – an impairment of or disturbance in the functioning of the mind or brain, and (2) functional test – which causes the inability to understand, retain or use/weigh the relevant information in making the decision or to communicate the decision;
10. Must be a “causal connection” between the impairment/disturbance identified in the diagnostic test and the inability to undertake one (or more) of the elements of the functional test. The impairment/disturbance must:
    1. be “operative” on P’s decision-making;
    2. cause the inability of one (or more) of the elements of the functional test (i.e. “because of” not “referable to” or “significantly related to”) – even if other factors come into play;
11. For the diagnostic test, the impairment/disturbance can be temporary or permanent;
12. For the functional test:
    1. P must be “unable” to undertake one (or more) of the elements – not simply be “impaired” in doing so;
    2. Inability for any one of the four elements will be sufficient to determine a lack of capacity;
    3. An ability to “use or weigh” the relevant information includes (1) an ability to engage in the decision-making process itself, (2) to be able to see the various parts of the argument and (3) to relate one to another;
    4. Not necessary for P to use or weigh every detail – but the “salient factors,” the crux is whether P is able to use or weigh sufficiently to make the decision;
    5. P needs to be able to employ the “relevant information” in the decision-making process and determine what weight to give the various parts of the “relevant information”;
    6. What/how much weight P gives the various parts of the “relevant information” is a matter for P – the fact that P has applied their own values/outlook to the “relevant information” and/or chooses to attach little/no weight to an aspect of it, doesn’t mean they’re unable to use or weigh it;
13. “Relevant Information”:
    1. Includes information about the reasonably foreseeable consequences of deciding one way or another;
    2. Outlined in case law for particular decisions is no more than guidance – it should be adapted, expanded or contracted to the facts of the particular case.

This application concerned RS, a male in his mid-twenties with a diagnosis of autism and mild learning disability. The Local Authority contended that RS had engaged in a series of risky behaviours, including contacting and meeting with little known males on the internet.

Mr Justice MacDonald was asked to determine whether RS had capacity to make decisions regarding care, residence, contact with others, and access to the internet and social media.

The jointly instructed Independent Expert Consultant Psychiatrist’s view on RS’ capacity changed during the course of proceedings. Initially, he considered that RS’ risky behaviours – in particular, what was described as “abnormally impulsive behaviours,” demonstrated his inability to make decisions about contact, internet and social media. Latterly, he considered that RS’ risky behaviours were unwise decisions as opposed to incapacitous ones. There was evidence that RS appeared to have some control over the impulsive behaviours.

RS’ risky behaviour had to be considered in the context of his age, level of maturity, history and development.

For P to lack capacity, the inability to make a specific decision must be because of an impairment of the mind or brain. Consideration of the ‘driving force’ behind P’s behaviour is therefore necessary. Crucially, the joint expert concluded that RS’s learning disability and autism were not the ‘driving force’ behind his risky behaviours.

It was not possible to determine whether the difficulties that RS experienced in decision-making were caused by his learning disability and/or autism (i.e. an impairment or disturbance in the functioning of his mind or brain) or his psychological makeup (arising from his history and development), his sexual proclivities/desire (which, whilst a powerful driver, was not a disorder in itself) and impulsivity commonly seen at his young age (i.e. falling within the ordinary recklessness demonstrated by young people).

Reflecting on the totality of the evidence, Mr Justice McDonald found that RS had capacity to make decisions regarding care, residence, contact with others, and access to the internet and social media. It was not possible to say that RS’ behaviour, though repetitively risky and unwise, resulted from an impairment in the functioning of his mind and brain.

RS is a male in his mid-twenties with a diagnosis of autism and a mild learning disability. During the course of his childhood, he was exposed to a number of difficult life events, including domestic and alcohol abuse, bereavement and inappropriate sexual activity.  RS has been known to social services since 2012 and to mental health services prior to that. He is currently residing in a supported placement funded by the Local Authority.

RS has a sexual fetish, namely, paraphilic infantilism (ABDL). It was submitted by the Local Authority that this has led RS to him engaging in risky behaviours (including exposing him to potential financial abuse and vulnerability to exploitation). The most recent example of such risky behaviour on the Local Authority’s evidence had taken place nearly 12 months prior to the hearing. RS’ social worker stated that there had been further incidents since the COVID-19 lockdown but conceded that there had been a long gap since the last incident in July 2019. The more recent concerns related to the management of his finances.

Professionals had assessed RS and produced reports dating back to 2014 and 2018. The first report in 2014 noted that the experiences from RS’ childhood might have resulted in “an altered sense or benchmark for what is acceptable behaviour, especially masturbation, sexuality and in coping strategies”  and that “he may not recognise that he is being abused in situations where it is more abstracted, such as emotional, neglectful, coercive or financial abuse.” This report did not address RS’ capacity.

The second report in 2018 touched upon RS’ capacity to consent to sexual relations, which no party suggested was lacking, and his decisions in relation to contact with others. The assessor concluded that RS lacked the capacity to make decisions relating to his contact with others due to his learning disability and autism.

Following this report, RS agreed to abide by rules governing his meeting with strangers which were set out in a support plan. The Local Authority gave evidence that RS had not consistently abided by the rules and raised concerns about the resulting risks.

A jointly instructed independent expert Consultant Psychiatrist provided reports to assist the Court. Initially, the expert stated that RS’ repeated behaviour of putting himself at significant risk of serious harm by arranging to meet men he knew little about, and using the internet and social media for sexual or ABDL activities, indicated that he was acting in an abnormally impulsive way and/or could not truly weigh the risks as part of the decision making process.

Following his first report, the joint expert was asked to further clarify his assessment and the impact of RS’ early formative experiences on his ability to understand, use and weigh information. The expert subsequently provided an addendum report in which he revised his opinion; concluding that RS had capacity to make decisions in relation to his contact with others and accessing the internet and social media. He cited the following reasons:

Contact with Others

• RS was able to recall details of instances when he made decisions to meet with men he recently met online. RS was able to understand and can use relevant information about the risk but was making unwise decisions, similar to reckless behaviour that other young adults may show (as per Cobb J in Re Z & Ors [2016] EWCOP).
• RS was partially compliant with the support plan. He demonstrated that he could modify his tendency to act impulsively, including deferring impulses to meet with people he chatted with online.
• Therefore, RS’ impulsive behaviour could not be considered as abnormally impulsive. His behavioural tendency was understandable in the context of an adolescent or young adult showing poor judgement on occasion, including choosing to act recklessly.

Access to the internet and social media

• RS reported a better understanding of the concern of others about the risks he could face in contacting and staying with strangers he met online. He was able to describe the risks to himself and the benefits of the support plan and was able to reflect on his past behaviour.
• RS explained his changed attitude to his risky behaviours, explaining how the COVID-19 lockdown had given him time to reflect.

The expert concluded that it was not possible to say RS’ difficulties with decision making resulted from an impairment or functioning of his mind or brain when factors relating to his background, preferences and age were considered.

Potentially “relevant information” for a decision on residence (from previous case law) includes:[1]

• what the options are, including information about what they are, what sort of property they are and what sort of facilities they have;
• 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);
• the difference between living somewhere and visiting it;
• what activities P would be able to do if he lived in each place;
• whether and how P would be able to see his family and friends if he lived in each place;
• in relation to the proposed placement, the financial arrangements and the rules of the placement;
• who he would be living with at each placement;
• what sort of care P would receive in each placement in broad terms.

Potentially “relevant information” for a decision on care (from previous case law) includes:[2]

• what areas P needs support with;
• what sort of support P needs;
• who will be providing P with support;
• what would happen if P did not have any support or P refused it;
• that carers might not always treat P properly and that P can complain if he is not happy about his care.

Potentially “relevant information” for a decision on contact (from previous case law) includes:[3]

• who they are and in broad terms the nature of P's relationship with them;
• what sort of contact P could have with each of them, including different locations, differing durations and differing arrangements regarding the presence of a support worker;
• the positive and negative aspects of having contact with each person;
• what might be the impact of deciding to have or not to have contact of a particular sort with a particular person;
• what a family relationship is (family being in a different category of contact).

Potentially “relevant information” for a decision on the use of the internet and social media (from previous case law) includes:[4]

• the fact that information and images (including videos) which P shares on the internet or through social media could be shared more widely, including with people P doesn't know, without P knowing or being able to stop it;
• it is possible to limit the sharing of personal information or images (and videos) by using 'privacy and location settings' on some internet and social media sites;
• if P places material or images (including videos) on social media sites which are rude or offensive, or shares those images, other people might be upset or offended;
• some people P meets or communicates with online, who P doesn't otherwise know, may not be who they say they are and someone who calls themselves a 'friend' on social media may not be friendly;
• some people P meets or communicates with on the internet or through social media, who P doesn't otherwise know, may pose a risk to P; may lie to P, or exploit or take advantage of P sexually, financially, emotionally and/or physically and may want to cause P harm;
• if P looks at or shares extremely rude or offensive images, messages or videos online P may get into trouble with the police, because P may have committed a crime.

In explaining the reasons for his decision, Mr Justice MacDonald noted:

• There was limited evidence and a lack of detailed analysis from the Local Authority on the question of capacity in respect of any of the relevant domains, and of the extent to which RS was able to understand, retain, use or weigh the relevant information. Where there was detail, it related to RS’ capacity to manage his financial affairs, which was not a question before the Court.
• Without detailed analysis, the Local Authority’s evidence amounted to a list of occasions that RS has made objectively risky or unwise decisions about a wide range of activities.
• If RS’ risky behaviour arose from his learning disability and autism, it would be seen in all domains, which was not the case.
• RS’ behaviour in meeting up with strangers after only limited contact with them online was characterised by the Local Authority as being so fundamentally irrational that it must demonstrate a lack of capacity. However, this behaviour is now the basis of some widely used social media applications, and it is not contended that everyone who uses such social media applications lacks capacity.
• Even if it was found that RS was unable to understand, retain, use or weigh the relevant information to make decisions, there was no cogent evidence that this was caused by an impairment or disturbance in the functioning of RS’ mind or brain.
• RS’ behaviour was considered to be in line with the ordinary recklessness of young adults who show poor judgment on occasion and choose to act unwisely.