A Court of Protection case for our times

Family Law|April 19th 2016

Occasionally the opening paragraphs of a law report will pique the interest, and encourage you to read on. So it was with the Court of Protection judgment in Re Z and Others.

Mr Justice Cobb’s judgment in the case begins as follows:

“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. The central issue which arises in this case is whether risks taken by a 20-year old young woman with autism represent ‘unwise’ decision-making, or evidence her lack of capacity.”

It fell to Mr Justice Cobb to decide whether the young woman, ‘Z’, did indeed lack capacity.

Z, as mentioned, is on the autistic spectrum with a diagnosis of Asperger’s Syndrome, and has borderline learning disability (she has an IQ of between 70 and 75). In June 2014 the local authority issued proceedings in the Court of Protection seeking declarations as to Z’s capacity to choose her residence, to make contact with others, to deal with her care and to litigate in the proceedings.

The events which led to the issuing of the proceedings are really a tale of our times. Z keenly wishes to be a singer and a celebrity, and in 2012 she appeared in a televised talent show. Sadly, it was not a success, but her performance was available to view on the internet, and she was deluged with contacts through web-based social media, mainly from men. She met with some of those who contacted her, some of whom allegedly abused or exploited her. She became sexually disinhibited, and it became apparent that she did not always show insight into the risks of her behaviours, and continued to place herself at risk. Further, as Mr Justice Cobb states:

“Like many young people, Z occupies her time on different forms of social media. Unlike many, at one time she removed all the privacy settings on her account, and was alleged to post up provocative material about herself.”

Concerned about Z’s behaviour, and her mental health, the local authority issued proceedings.

Unfortunately, the proceedings were seriously delayed, and the hearing did not take place until December 2015. As a consequence, the original psychiatric assessment of Z was more than a year old, and obviously events had occurred in Z’s life, which could have a bearing upon the capacity issue. There was a further brief psychiatric assessment prior to the hearing, which indicated that Z’s risk-taking behaviour had improved since the original assessment, but the conclusion was the same: that whilst it was a very difficult case, Z lacked capacity in respect of the matters under consideration by the court.

Mr Justice Cobb agreed that the case was very difficult, and finely balanced. However, he reached the conclusion that Z did have capacity as at the time of the hearing, although he was inclined to the view that she probably did lack capacity at the time when the proceedings were issued. Since then she had matured, and had learned from her experiences. She was able to use or weigh information about risk to herself, and her ability to keep herself safe in independent living, and in her social contacts. She may make unwise and unsafe decisions, but that did not indicate lack of capacity – many young people make unwise decisions, and it is right that they should be free to do so.

In short, Z was a vulnerable young person who deserves support. However, as Mr Justice Cobb said, whilst it may be tempting for the court to take a paternalistic, perhaps overly risk-averse, approach to Z’s future, such an approach would be unprincipled and wrong.

The full judgment can be read here.

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