Many, including, me, who read the judgment of Poole J in SW v Nottingham City Council & Anor [2025] EWCOP 53 (T3) were very interested to see whether there would be a published sequel. That judgment concerned a (rather complicated) situation in which findings of fact had been made ahead of the court’s determination of capacity, a course of action that Poole J indicated that he was not entirely convinced by. However, he dismissed the appeal against the conclusions reached at that fact-finding hearing by HHJ Rogers, and remitted it to him. In doing so, Poole J gave heavy hints that he was far from convinced that the so-called diagnostic element of the capacity test was met, given that the “intellectual function” of the person in question, JW, was “at the 8th percentile and so higher than many individuals who have mental capacity to make the decisions facing her;” and also “[w]hether the causal nexus is established given the significant role of coercion and control and the need to identify a causal nexus between the inability to make a decision and an impairment or disturbance in the functioning of the mind or brain.”
Sitting in retirement, HHJ Rogers has now handed down a very detailed judgment on JW’s capacity ([2026] EWCOP 13 (T2)], concluding that she had capacity in all relevant domains. Much of the judgment addresses issues with written and oral evidence of the expert which, whilst expressed with scrupulous courtesy, repay reading by anyone who is instructed to give expert evidence on capacity. For present purposes, however, I want to focus on HHJ Rogers’ observations in relation to the two issues set out in the opening paragraph. Whilst, as he noted, they strictly did not fall for consideration because JW was found, functionally, to be able to make the decisions in question, and HHJ Rogers’ observations must therefore be read in that light, they are nonetheless of sufficient wider interest to merit setting out in some detail.
Borderline intellectual functioning
The expert, Dr Todd, assessed JW as having “borderline intellectual functioning.” HHJ Rogers noted that:
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.”
HHJ Rogers observed that:
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 16where 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 8thpercentile. 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[9]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[10] 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.
63. 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.
Causative nexus
HHJ Rogers’ concerns did not stop there. He was equally troubled about whether the causative nexus was satisfied:
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[11]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.
Some might well wonder having read thus far whether this was not a case which should continue under the High Court’s inherent jurisdiction. HHJ Rogers identified, without giving further reasons, that he did not consider it appropriate to hear argument on that point, and expressly expressed no view on this issue (paragraph 75).
Comment
It is unusual for a reported judgment to contain such detail on either of the second and questions that arise in the context of capacity (after the question of whether the person can – with appropriate support – functionally make the decision(s)). HHJ Rogers’ observations about whether JW’s condition gave rise to a “qualifying diagnosis” for purposes of the Act did make me wince slightly, as (as the Court of Appeal emphasised in the Thirumalesh case) there is no requirement for a formal diagnosis to satisfy the ‘mental disability’ limb). However, his underlying point is a profound one, reminding us that, ultimately, the test contained in the MCA 2005 is a social construct by which we have delineated whether a person’s ‘yes’ or ‘no’ is determinative. For reasons explained in more detail here, this does not mean that it is an illegitimate test, but in ‘edge’ cases, it is all the more important that those applying the test are aware of the implications either way.
As regards the operation of the causative nexus, and whilst HHJ Rogers was ultimately able to find that it was clearly not established, it is fair to point that – as discussed more here – the landscape is still very unsettled as regards how we are supposed to address the situation of a person with a mild impairment caught in a spider’s web.
