https://www.bailii.org/ew/cases/EWCOP/2023/27.html
This application concerned Y, a female in her early twenties. Y had been diagnosed with autism in her childhood but despite difficulties with learning, she had remained in mainstream education.
In 2018, as a result of a motorbike accident, Y sustained brain injuries termed as ‘moderate-severe’ and had a care package commissioned by her deputies and managed by a case manager.
Y had previously been determined as having the capacity to decide to take cross-sex hormones and to access the internet without the need for judicial determination. Here, the matter for determination by Hayden J was whether Y had capacity to make decisions in relation to her care and residence. Despite their many shared areas of agreement, Dr. David Todd, Consultant Neuropsychologist, and Dr. Janet Grace, Consultant Neuropsychiatrist, held divergent views derived from their respective analyses of Y’s presentation.
Hayden J described Dr Todd as “very clear” that Y lacked capacity to make decisions as to her residence and the care and support she required, but that Dr Grace had “forcefully” articulated the opposite stance. Dr Todd’s view was constructed upon the observation and hypothesis that Y presented with Dysexecutive Syndrome as a result of her traumatic brain injury, an opinion which rested upon examination of the operation of “the frontal lobe paradox”. This describes how those with frontal lobe injury commonly perform well in interview or test type conditions but still experience notable deficits in everyday life. Whereas Dr Grace, who considered Y to be “impulsive, difficult to contain and risk taking,”, noted this occurred almost entirely at times of hyper-arousal and that such behaviours had been present in Y pre-injury, were not a consequence of her brain injury and instead arose as part of her anxiety and autism. Dr Grace noted that in common with the entire population Y was “at risk of making decisions that are potentially harmful when she is anxious or angry.”
Having defined the applicable law in the case as set out in the MCA 2005 and summarised in A Local Authority v H [2023] EWCOP 4, Hayden J set about the correct ordering of the questions to be considered in determining capacity as set out in A Local Authority v JB [2021] UKSC 52. He went on to reference several further instructive cases regarding capacity determinations, including CC v KK and STCC [2012] EWHC 2136 (COP) which outlined that it is not necessary for a person to use and weigh every detail of the potentially relevant information, the merely salient factors being sufficient. Hayden J then embarked upon a detailed analysis of the views of the two experts, about whom he noted there was “a genuine difference of opinion in which both have engaged in an intellectually honest dialectic”.
In this case, Hayden J described the issues as complex, but not in the end, finely balanced.
Of particular relevance was an examination of the facets of executive dysfunction and frontal lobe paradox which he noted should be distinguished from the functional test for mental capacity given that “The former derives from clinical practice, the latter is the test prescribed by MCA. Neither is ‘insight’ to be viewed as equating to or synonymous with capacity. To elide those two would be to derogate from personal autonomy, every adult from time-to-time lacks insight into an issue or indeed into themselves.”
Accordingly, Hayden J outlined his conclusion that Dr Todd had not fallen into such “rudimentary errors” and that Y’s brain injury, which had been “identified neuroradiologically”, was not challenged. Also, in keeping with typical frontal lobe damage, “Dr Todd considers that Y has cognitive, emotional and behavioural manifestations which are not confined to periods of heightened arousal but are pervasive and reductive of capacity for problem solving” such that this undisputed central premise had the effect of impairing one’s “ability to think consequentially and ultimately, to be able satisfactorily to understand, retain or weigh information in order to make a decision about care needs and accommodation.”
This, Hayden J noted, established both the functional and diagnostic test and consequently led him to prefer Dr Todd’s opinion whilst, at the same time, remaining “particularly alert to [Dr Grace’s] entirely proper warning that a dissociation between knowing or understanding and a failure to follow through or convert to action, is not, axiomatically, pathological.”
In conclusion, Hayden J noted that, “The presumption of capacity… requires to be rebutted on cogent evidence, nothing else will ever do… It is both a guard against the power of the state and a gateway to State support where needed … having concluded that Y lacks capacity to make decisions relating to her care and accommodation, it is important always to remember that the MCA constructs an ongoing obligation to promote capacity, in effect, to build a pathway to capacity where there is a prospect of it. There is evidence that Y is making progress cognitively and more broadly [which]… indicates… the importance of the obligation to provide a scaffolding of support for Y in order that she is availed of the very best opportunity to reassert her autonomy in these two very important spheres of decision taking.”
Thus it can be seen that a proper assessment of capacity can impinge directly on the extent, nature and degree of inputs into a care plan under the Care Act, s117 or CHC framework.
Shortened – placed in R-up
This application concerned Y, a female in her early twenties diagnosed with autism in her childhood. In 2018, Y sustained brain injuries termed as ‘moderate-severe’. Y had previously been determined as having the capacity to decide to take cross-sex hormones and to access the internet without the need for judicial determination. Here, the matter for determination by Hayden J was whether Y had capacity to make decisions in relation to her care and residence. Two experts, Dr. David Todd, Consultant Neuropsychologist, and Dr. Janet Grace, Consultant Neuropsychiatrist, held divergent views derived from their respective analyses of Y’s presentation.
Hayden J described Dr Todd as “very clear” that Y lacked capacity to make decisions as to her residence and the care and support she required, but that Dr Grace had “forcefully” articulated the opposite stance. Dr Todd asserted that Y presented with Dysexecutive Syndrome as a result of her frontal lobe traumatic brain injury and was therefore influenced by “the frontal lobe paradox,”. This describes how those with such injuries commonly perform well in interview or test type conditions but still experience notable deficits in everyday life. Dr Grace considered Y to be “impulsive, difficult to contain and risk taking,” but noted these behaviours predominantly occurred at times of hyper-arousal, arose as part of her anxiety and autism and were not a consequence of her brain injury.
Having defined the applicable law in the case as set out in the MCA 2005 and summarised in A Local Authority v H [2023] EWCOP 4, Hayden J defined and the correct ordering of the questions to be considered in determining capacity as set out in A Local Authority v JB [2021] UKSC 52 before referencing several further instructive cases including CC v KK and STCC [2012] EWHC 2136 (COP). Hayden J then embarked upon a detailed analysis of the views of the two experts, about whom he noted there was “a genuine difference of opinion in which both have engaged in an intellectually honest dialectic” in this case, which Hayden J described as complex, but not finely balanced.
Of particular relevance in the delivery of Hayden J’s judgement, was an examination of the facets of executive dysfunction and frontal lobe paradox which he noted should be distinguished from the functional test for mental capacity as: “The former derives from clinical practice, the latter is the test prescribed by MCA. Neither is ‘insight’ to be viewed as equating to or synonymous with capacity. To elide those two would be to derogate from personal autonomy, every adult from time-to-time lacks insight into an issue or indeed into themselves.” Accordingly, Hayden J outlined his understanding that Dr Todd had not fallen into such “rudimentary errors” and that Y’s brain injury, which had been “identified neuroradiologically”, was not challenged. Also, in keeping with typical frontal lobe damage that, “Dr Todd considers that Y has cognitive, emotional and behavioural manifestations which are not confined to periods of heightened arousal but are pervasive and reductive of capacity for problem solving” to the effect of impairing “ability to think consequentially and ultimately, to be able satisfactorily to understand, retain or weigh information in order to make a decision about care needs and accommodation.” This, Hayden J noted, established both the functional and diagnostic test and consequently led him to prefer Dr Todd’s opinion whilst, at the same time, remaining “particularly alert to [Dr Grace’s] entirely proper warning that a dissociation between knowing or understanding and a failure to follow through or convert to action, is not, axiomatically, pathological.”
In conclusion, Hayden J noted that, “The presumption of capacity… requires to be rebutted on cogent evidence, nothing else will ever do… It is both a guard against the power of the state and a gateway to State support where needed…having concluded that Y lacks capacity to make decisions relating to her care and accommodation, it is important always to remember that the MCA constructs an ongoing obligation to promote capacity, in effect, to build a pathway to capacity where there is a prospect of it. There is evidence that Y is making progress cognitively and more broadly [which]… indicates… the importance of the obligation to provide a scaffolding of support for Y in order that she is availed of the very best opportunity to reassert her autonomy in these two very important spheres of decision taking.”