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WBC v Z and others: Susanna Rickard appears for the Official Solicitor in difficult capacity case

26th January 2016

This case involved a young person with autism and borderline learning disability who had had a troubling public experience on reality TV.  Afterwards, she suffered a period of very risky behaviour during which it was believed she had been abused and sexually exploited, culminating in a short period of detention under the Mental Health Act.  The local authority asked the Court of Protection to determine her capacity to make decisions about her residence, care and contact with others.  If she lacked capacity, they proposed to house her in accommodation that would be alarmed so that the care agency would know her movements. She did not want this level of control over her. The central issue was whether risks she had taken represented “unwise” decision-making, or whether they were demonstrative of a lack of capacity.

Finding that the local authority had not rebutted the presumption of capacity, Mr Justice Cobb said: “Risk taking is often unwise. It is also an inherent, inevitable and perhaps necessary part of adolescence and early adulthood”. In so finding, the court departed from the opinion of the independent expert psychiatrist who had been appointed to assist the Court, who had described it as one of “the most complex cases she had been involved in”. Concluding his judgment, Mr Justice Cobb said “It is tempting for the court to take a paternalistic, perhaps overly risk-averse, approach to Z’s future; but this would be unprincipled and wrong”.

The case has received considerable media interest.

Click here to read the full judgment

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