Mental capacity and expert evidence

The Court of Appeal recently overturned a capacity ruling in a complex case. The ruling highlights the need for careful consideration of expert evidence, writes Catherine Rowlands.

On Monday 2 December 2024, in Cornerstone Barristers Court of Protection Masterclass on capacity, silos and fluctuating capacity (which you can watch here), I referred to the judgment of HHJ Burrows in A Local Authority v ZX [2024] EWCOP30 (T2) – a case in which he referred back to the judgment of the Court of Appeal in Local authority A v ZZ [2024] EWCOP 21 overturning his own earlier decision.

I commented on the clarity of the Judge’s explanation of what is meant by “working in silos”:

By this term, I understand a reference to becoming stuck with a list of “relevant information” for one particular decision without taking into account what needs to be known from other lists concerning other, overlapping decisions.

I thought his judgment was particularly helpful in describing the pitfalls of “siloisation”.

Imagine my chagrin, then, two days later, sitting on the train reading the latest case reports as I headed into London, to see that the Court of Appeal had, once again, and with regret, overturned the judgment of HHJ Burrows.

Their judgment is here ZX (Capacity to Engage in Sexual Relations) [2024] EWCA Civ 1462 (03 December 2024)

The facts of ZX are distressing and do not need to be repeated here. Coping with ZX’s complex presentation is not easy for those concerned with his care.

The grounds of appeal were:

(1) The learned judge applied the wrong legal test to the decision, and in doing so erroneously lowered the standard and quality of evidence that is required to rebut the presumption of capacity enshrined in s.1 MCA.

(2) The judge was wrong to conclude to that ZX lacks capacity to consent to sexual relations by reason of being unable to use or weigh information “in the moment”.

(3) The Judge was wrong to consider wider issues relating to the protection of the public and the non-availability of mental health services and/or involvement of the criminal justice system when determining whether ZX has capacity to make the decision; and to accept the evidence of Dr Ince given Dr Ince’s reliance on these considerations.

Ground 1 was essentially a challenge to the evidence upon which the Judge had found that there was a causal connection between non-consensual sex, and ZX’s impairment of mind.

Ground 2 alleged that there was no evidence to support the finding that, when “in the throes”, ZX was unable to weigh up his partner’s consent, or lack thereof. Dr Ince (the psychiatrist) had not asked him about being impulsive in this context. The Judge, and the psychiatrist, had proceeded on the basis that ZZ changed the relevant law.

Under ground 3, it was submitted that there was clear evidence in the transcript of the hearing and the judgment, that the tail of welfare was being allowed to wag the dog of capacity. The question of whether ZX should be supervised, or prevented from forming sexual relationships, to avoid harm to third parties, is not part of the test of mental capacity under the MCA. The risk of sexual offending behaviour should be managed through the criminal justice system where the courts are well-versed in dealing with those who are vulnerable by virtue of a mental disorder and in balancing their needs and rights against the need to ensure public protection. It is inappropriate for the Court of Protection to step into the shoes of the criminal law.

The Court of Appeal allowed the appeal, with an expression of regret and a recognition of how difficult the question was.

The Court started by setting out the test:

The approach to be followed when assessing capacity in this area under sections 2 and 3 of the MCA is as prescribed by the Supreme Court in JB. It has not been materially amended by any subsequent decision. The decision in Re PN did not change the law. In some cases, … it may be appropriate to focus on whether P is able to use the relevant information “in the moment”, (i.e. when he is initiating, or about to initiate, sexual activity with another person) and, if not, whether that inability is due to an impairment of, or disturbance in, the mind or brain. The second limb of the information specified in JB includes not only “the fact that the other person must be able to consent to the sexual activity” but also that the other person “must in fact consent before and throughout the sexual activity”. That is consistent with a focus on whether P is able to use the information “in the moment”.

Dr Ince thought that ZZ had changed the law. Although HHJ Burrows did not, he failed to give weight to that, when he assessed Dr Ince’s evidence.

If Dr Ince had been right about his understanding of the law, the bar for capacity for sexual relations would be set too high. The Judge should have realised what Dr Ince was saying and put his evidence into context.

He also erred in relying on ZX’s history of offending as evidence that he was unable to understand about consent; he also failed to establish that, if ZX was unable to understand, that was because of an impairment of mind. The test is “because of”, but the Judge

proceeded on the basis stated in the judgment that “there must be a connection between the disturbance in the functioning of the mind or brain and using and weighing of the relevant information” (emphasis added). “A connection” is insufficient. The presumption of capacity can only be rebutted if there is a clear causative nexus between the inability to make a decision and an impairment of, or a disturbance in the functioning of, the mind or brain.

The appeal was allowed on grounds 1 and 2, but not on ground 3; the Court did not accept that the Judge had allowed the “protective principle” to enter into his views.

The Court remitted the case for reconsideration, concentrating particularly on the issue of whether ZX has capacity in relation to sex “in the heat of the moment”.

HHJ Burrows’ clear exposition of the meaning of “working in silos” and the problems that arise from that is not criticised by the Court of Appeal, and indeed, this judgment probably goes to emphasise the practical difficulties that arise when thinking about capacity too rigidly. The role of the Judge must include ensuring that the medical evidence approaches the question in a sufficiently holistic and person-centred way, as well as being properly evidence-based.

Catherine Rowlands is a barrister at Cornerstone Barristers. She has a practice which covers all aspects of public law, especially social housing, community care and welfare, property, and other civil litigation.

Catch up on the Court of Protection Masterclass here.