Family Law

Private Client analysis: Ella Anderson, barrister at Spire Barristers, discusses the practical implications of the judgment in Re FX [2017] EWCOP 36 – the first ever reported decision to consider questions of capacity in the context of Prader-Willi syndrome, a rare genetic disorder which causes a range of physical, learning and behavioural difficulties.

What are the practical implications of this case?

• a person must be assumed to have capacity unless it is established that he or she lacks capacity (MCA 2005, s 1(2))
• the person must understand the salient information—it is not necessary for them to comprehend all peripheral detail (LBL v RYJ [2010] EWHC 2665 (COP), [2011] All ER (D) 290 (Feb) and CC v KK and STCC [2012] EWCOP 2136, [2012] All ER (D) 53 (Oct))
• the bar (ie the test of capacity), including in relation to issues such as residence, must not be set too high—to do so would run the risk of discriminating against persons suffering from a mental disability (Baker J in PH v A Local Authority and Z Ltd [2011] EWHC 1704)
• a person is not to be treated as unable to make a decision merely because he or she makes an unwise decision (MCA 2005, s 1(4))
• caution must be applied against being drawn to an outcome that is more protective of the person, leading to a failure to carry out a ‘detached and objective’ capacity assessment (see A Local Authority v TZ (No 2) [2014] EWHC 973 (COP))
• capacity and best interests must not be conflated (see CC v KK and STCC)

A word on expert evidence

What was the background?

What did the court decide?

• there had been a failure to conduct a proper analysis of the presumption of capacity;
• the basis of Professor Holland’s opinion was one-third assessment time with FX, one-third general knowledge of PWS and one-third from records provided to him, which were over a year old. Professor Holland himself acknowledged the limitations this placed on his assessment and indicated his preference would have been to spend more time with FX;
• Professor Holland had set the bar quite high during his assessment of FX (again, acknowledged by Professor Holland himself);
• Professor Holland’s obvious knowledge of PWS and great commitment to improving the lives of those who suffer from it had led him to conflate best interests with capacity;
• there was no consideration of whether any of FX’s reported actions were unwise decisions rather than indications of lack of capacity.

• had the advantage of being able to meet more extensively with FX (four face-to-face meetings and two telephone calls);
• was able to have more productive discussions with him;
• conducted her assessment from the correct starting point of presuming that FX had capacity and applying the relevant statutory framework and guidelines.