Court Of Protection Make Hard Decision Against The Protected Party Despite Experts Finding That The Protected Party Retains Capacity

When making a decision the Court of Protection will often rely on key evidence from experts, being evidence predominantly revolving around the Protected Party’s capacity and the Protected Party’s wishes.

Any evidence prepared by experts for the purpose of Court proceedings shall be prepared for the Court in accordance with CPR rule 35 and will act as guidance only. This means an expert report will not be binding, albeit the Court tend to place significant weight on expert reports on the basis the experts are independent from the parties. This has recently created some controversy with comments being made that the Court of Protection may find themselves straying into making their own findings on the Protected Party’s capacity, particularly when they find against an expert’s opinion.

A Local Authority v ZX

Case background

In the recent case of A Local Authority v ZX (By His Litigation Friend, the Official Solicitor, the expert’s findings faced much scrutiny. The case revolved around whether or not ZX retained the capacity to engage in sexual activity. ZX had a complex history regarding his sexual activity and from a young age was exposed to sexual abuse and potentially, was a perpetrator of sexual abuse. At the time of the hearing, ZX was 18 years of age. ZX was also in a relationship with a young woman aged 15, critically being below the age of consent.

A joint expert was instructed during the course of proceedings and assessed ZX’s capacity to engage in sexual activity, amongst other things. The expert initially found ZX to retain capacity with regard to sexual activity, on the basis he could understand the nature of sexual intercourse, the requirement for consent and the implications and risks involved.

On further enquiries and following the expert’s review of ZX’s brother’s case, the expert reached a different conclusion in that ZX lacked capacity. This was explored at length during the Court hearing and the expert was challenged about his change of opinion. The expert explained that whilst ZX demonstrated that he may meet the criteria to retain capacity at face value, when considering his impulsive nature, it is likely ZX would at times lack capacity. With ZX displaying a history of impulsive behaviour, the expert believed that during such occasions he would be unable to weigh up the relevant information and make an informed decision. During the course of sexual activity, therefore, if the other person were to withdraw their consent, there was a risk that ZX would be unable to comprehend this.

Decision

The Judge considered the expert’s evidence overall and agreed that ZX was unable to use and weigh up relevant information relating to sexual activity, and therefore found the Protected Party lacked capacity. The Judge commented that in reaching a decision he was aware he was not to tailor his formulation of capacity towards a desired outcome. Whilst most Court of Protection decisions relate to the protection of the Protected Party themselves, this case impacted the protection of others who may have potentially become victims of ZX had he proceeded to commit an offence.

This case demonstrates the Court’s in-depth consideration of the expert’s report and how the expert’s opinion is used by them to reach a decision. The case also acts as a reminder that the Court of Protection is involved in relation to a Protected Person’s capacity and their best interests only, regardless of the potential consequences for others. The Judge in this case commented that this was a “somewhat perverse use of the MCA”.