This case serves as essential reading for capacity assessors, as well as health and social practitioners and commissioners, providing further guidance on assessing capacity to make decisions in the context of risky or unwise behaviour.
A Local Authority v RS (Capacity)  EWCOP 29 (Mr Justice MacDonald)
Capacity assessors should be mindful:
Mr Justice MacDonald helpfully summarised the following important principles in relation to capacity:
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
Access to the internet and social media
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:
Potentially “relevant information” for a decision on care (from previous case law) includes:
Potentially “relevant information” for a decision on contact (from previous case law) includes:
Potentially “relevant information” for a decision on the use of the internet and social media (from previous case law) includes:
In explaining the reasons for his decision, Mr Justice MacDonald noted:
 LBX v K and L  EWHC 3230 (Fam)
 LBX v K and L  EWHC 3230 (Fam)
 LBX v K and L  EWHC 3230 (Fam)
 Re A (Capacity: Social Media and Internet Use: Best Interests)  EWCOP 2