Risky Behaviour – WBC v Z
Articles | Tue 3rd May, 2016
The judgment in WBC v Z, X and Y  EWCOP 4 (18 January 2016) provides some useful guidance on determining whether anindividual lacks capacity under the Mental Capacity Act 2005 (‘MCA’).
Z was a 20 year-old woman. She was autistic, with a diagnosis of Asperger Syndrome and borderline learning disability. She was, in many ways, typical of a young person of her age. She was fascinated by celebrity status and her bedroom was ‘in complete disarray’. However, Z had also taken risks in the way that she lived her life and made relationships. In particular, there was evidence that, in 2013 and 2014, she had been involved in risky and promiscuous behaviour online. In June 2014, the local authority issued proceedings in the Court of Protection seeking declarations as to Z’s capacity to choose her residence, make contacts with others, and deal with her care. A psychiatric report was obtained which concluded that Z was unable to assess risks to her safety, and that she over-estimated her ability to keep herself safe.
Cobb J refused to grant the declarations. Although the local authority had been perfectly justified in bringing the original proceedings, it had failed to rebut the presumption of Z’s capacity at the time of the hearing. There was no dispute that Z suffered from an impairment of the mind. The issue focused on the functional element of the capacity test, namely Z’s ability to ‘use or weigh’ information. It was apparent that Z did understand the essential implications of living at home or alone. Evidence was available that time and increased maturity, and the benefit of learning from experience, had improved Z’s ability to assess risk. She had to some extent ‘learned how to make decisions’.
The case is a further reminder of the high evidential threshold for rebutting the presumption of capacity under s. 1(1) MCA.
Four key principles can be extracted from Cobb J’s judgment.
First: There must be a ‘solid evidential foundation’ to justify a finding that a person lacks capacity. The local authority in WBC v Z invited the court to ‘infer’ that Z was unable to weigh information, in the absence of up-to-date evidence. This was rejected by Cobb J who, applying PC v City of York Council  EWCA Civ 478, considered that an inference could barely be described as an evidential foundation, let alone a ‘solid’ one, on which to rest a decision as to capacity.
Second: Risky behaviour does not, by itself, establish a lack of capacity. This follows from s. 1(4) MCA which requires that a person must not be treated as unable to make a decision merely because he or she makes an ‘unwise’ decision. It is also consistent with common sense. We all take risks in our lives. Just because you might be a keen marathon runner, sky-diver, sunbather or city banker, it does not follow that you therefore lack capacity in any sense. Moreover, the propensity to make unwise decisions is perhaps particularly pertinent in the context of young individuals. Not only is this a normal feature of growing up, but it is arguably one which is desirable. It is sometimes said that experience is the name that we give to our mistakes. Similar sentiments were endorsed by Cobb J who acknowledged that: ‘It is well known that young people take risks. Risk-taking is often unwise. It is also an inherent, inevitable, and perhaps necessary part of adolescence and early adulthood experience’.
Third: Capacity is a fluid concept which may evolve over a short period of time. In Z’s case, Cobb J accepted that she had probably lacked capacity in June 2014. However, by the time of the final hearing in 2015, this was no longer the case. This illustrates the critical importance of keeping capacity under review.
Fourth: The issue of capacity is ultimately for the Court to decide. At paragraph 69, Cobb J acknowledged that he was differing from the conclusions of the expert witness. However, he identified that the role of the expert and the Court were distinct: ‘the expert advises and the court decides’. Although the opinion of an independently instructed expert was likely to be of very considerable importance, the issue of capacity was a judgment for the Court, weighing the expert evidence against its findings.
Article by Tom Rainsbury.