Louis Browne KC and Rebecca Clark represent a local authority in an important case under the Mental Capacity Act

July 4, 2023

Representing Warrington Borough Council, Louis Browne KC and Rebecca Clark from Exchange Chambers have recently acted in a significant case concerning capacity and executive dysfunction and authorisation of a deprivation of liberty arising from the package of care put in place for a claimant in ongoing personal injury proceedings.

Warrington Borough Council v Y & Ors [2023] EWCOP 27 concerned Y who was in her early twenties. As  a very young adult, Y sustained serious, life changing injuries in a  road traffic accident. The injuries included a brain injury and they gave rise to a claim for personal injury for which damages were yet to be finally assessed. Care and support for Y was commissioned by her Deputies and managed by a case manager. Establishing the package of support was challenging and Y had a very unsettled period before moving to a rented bungalow in the North West with a package of care. Y’s Deputies commissioned a report from Dr David Todd, Consultant Neuropsychologist and in his opinion, Y lacked capacity to make decisions as to her residence and care arrangements. As her living arrangements deprived her of her liberty, this required authorisation by the Court of Protection. The Deputies notified the local authority and the local authority brought the application.

At the start of the Court of Protection proceedings Y, a natal male who identifies as female,  was taking hormone medication that she purchased over the internet. The Court directed a jointly instructed report from Dr Grace Consultant Neuropsychiatrist. The question of whether Y had the 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. Y has since been referred to a gender specialist and is now taking prescribed female hormone medication.

The central issue in the case was therefore whether Y had the capacity to take decisions in relation to her care and residence.

Dr Grace gave evidence at a hearing in February and Hayden J found her evidence to be persuasive and well-reasoned. Dr Todd was contacted and he remained firm on his own conclusion.

The Court gave permission for the Deputies to call Dr Todd and directed a meeting to discuss the issues. Dr Todd and Dr Grace were able to narrow the issues between them. They agreed that Y’s injuries placed her towards the lower end of the Mayo moderate- severe brain injury classification.

Both experts agreed that the issues of care and residence were closely linked and Hayden J considered it was ‘virtually impossible to disentangle them.’

Although the evidence of a psychiatrist is likely to be determinative of the issue of whether there is an impairment of the mind for the purposes of S.2(1) Mental Capacity Act 2005, the issue of capacity remains a judgment for the court. Hayden J  heard from both doctors and considered all the evidence.

Dr Grace Consultant Neuropsychiatrist, the jointly instructed expert considered that Y had capacity to make decisions about her residence and care but was choosing to make ‘unwise choices ’ and frontal lobe paradox was not relevant to Y’s case.  Dr Todd  Consultant Clinical Neuropsychologist,  the clinician commissioned by the Deputies,  remained very clear in his opinion that that Y presented with Dysexecutive Syndrome consequent upon her traumatic brain injury, and it was important to consider ‘frontal lobe paradox’. He considered that Y lacked capacity to make decisions about her residence and care.

Hayden J ‘did not consider the case was ‘delicately balanced’ in the way that phrase is frequently used.’ He considered the decision was ‘essentially binary’ requiring him to determine which of the two carefully analysed opinions he considered likely to be accurate.

Ultimately, Hayden J considered that Dr Todd’s opinion was to be preferred, concluding 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. 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.

Personal injury practitioners will be accustomed to claiming heads of damage for future property and affairs costs for deputyship and the Court of Protection, but this case is an important  reminder not only for the need to authorise the deprivation of liberty arising from any current care arrangements but to include the costs of welfare proceedings, including future estimated costs in any schedule of damages.  In these proceedings the Deputies were legally represented and Y was separately legally represented with the Official Solicitor as her litigation friend.