Warrington Borough Council v Y & Ors  EWCOP 27. This application concerned Y, who was in her early twenties. Y had been diagnosed with autistic spectrum disorder as a child. Her education records reveal difficulties with learning but she remained in mainstream education and was provided with support. In consequence of a road traffic accident, she had serious injuries, including brain injuries. She was cared under care arrangements commissioned by her deputies and managed by a case manager. A question of no doubt vital importance to Y, namely as to her capacity to decide to take cross-sex hormones, was resolved without the need for judicial determination, as was the question of whether she had capacity to access the internet. Hayden J had to resolve the question of Y had capacity to take decisions in relation to her care and residence. O pinion on this was divided between Dr Janet Grace, Consultant Neuropsychiatrist, and Dr David Todd, Consultant Neuropsychologist. Whilst there were areas of common ground, helpfully teased out in an experts’ meeting, Dr Todd was “very clear” that Y lacked capacity to make decisions as to where she resided and the care and support she required. Dr Grace “forcefully” articulated the opposite opinion.
In essence, Dr Todd considered that Y presented with Dysexecutive Syndrome, consequent on traumatic brain injury, and highlighted the operation of “the frontal lobe paradox,” that those with frontal lobe damage can perform well in interview and test settings, despite marked impairments in everyday life. By contrast, Dr Grace considered that, whilst Y was “impulsive, difficult to contain and risk taking,” this was largely confined to occasions in which she was “clearly hyper-aroused.” Dr Grace considered that that these patterns of behaviour were present pre-injury and believed that they are not a consequence of the brain injury but due to a combination of anxiety and autistic spectrum disorder (ASD) traits. Dr Grace’s evidence was that “in common with the rest of the population, she is at risk of making decisions that are potentially harmful when she is anxious or angry.”
Much of the judgment of Hayden J consisted of an analysis of the views of the two experts, in circumstances where he considered it was important that “this is not a case where the two experts have been sucked into an ideological battle in which both have retreated to a defence of their amour propre. There is a genuine difference of opinion in which both have engaged in an intellectually honest dialectic” (paragraph 35). Of wider relevance, perhaps were Hayden J’s observation at paragraph 45 that:
Executive dysfunction and frontal lobe paradox is, as Ms Butler-Cole correctly submits, not to be regarded as synonymous with the functional test for mental capacity. 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.
On the facts of the case, Hayden J considered that Dr Todd not fallen into these “rudimentary errors”:
It must be emphasised that severe traumatic brain injury has been identified neuroradiologically in this case and that this is not challenged. 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. These, he considers are frequently associated with frontal lobe damage. Again, whilst recognising the variability of these behaviours, I do not understand this central premise to be in dispute. The consequence, Dr Todd contends, is to impair the 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. To my mind, that establishes both the functional and diagnostic test. Moreover, for the reasons I have already explained, I consider that the accounts given by F very much reinforce Dr Todd’s views and do not sit as comfortably with those expressed by Dr Grace. It is Dr Todd’s opinion which unifies most of (though by no means all) the features of what is undoubtedly a complex evidential matrix.
Ultimately, therefore, Hayden J considered that Dr Todd’s opinion was to be preferred, although he made clear that he was “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.”
Returning to a familiar theme, Hayden J concluded that:
47. The presumption of capacity is the central tenet of the MCA. It is a powerful safeguard of civil liberty. It requires to be rebutted on cogent evidence, nothing else will ever do. The principle was well embodied in the case law that preceded the MCA. It is both a guard against the power of the state and a gateway to State support where needed. It is woven into the professional DNA of practitioners and Judges in this important and evolving sphere of the law. I feel confident that every Judge, evaluating a question of capacity, approaches the test with a resolve to find that an individual has capacity and arrives at a contrary conclusion only when the evidence demands it.
In this spirit, Hayden J continued:
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. That evidence, at present, has a degree of fragility which causes me to draw back from any more confident assertion. What it indicates, however, is 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. It may well be that in the months to come, the landscape might change and require my decision to be revisited. I suspect, though I may be entirely wrong, that some of Dr Grace’s reservations may also reflect my own sense from the evidence that Y’s situation remains an evolving one.
The considered and thoughtful disagreement between Drs Grace and Todd set out in the judgment is one which repays careful scrutiny by those working in this area. Hayden J’s clear reminder that the clinical phenomenon of executive dysfunction needs to be addressed by reference to the specific criteria of the MCA 2005 in relation to the facts of any individual case is of wider importance. For those who want to get a further – interdisciplinary – insight into the issues, we recommend this webinar from the National Mental Capacity Forum.