Warrington Borough Council v Y (by her Litigation Friend, the Official Solicitor)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hayden |
| Judgment Date | 28 June 2023 |
| Neutral Citation | [2023] EWCOP 27 |
| Court | Court of Protection |
| Docket Number | Case No: 13715813 |
[2023] EWCOP 27
Mr Justice Hayden
Case No: 13715813
COURT OF PROTECTION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Louis Browne KC and Ms Rebecca Clark (instructed by a Local Authority) for the Applicant
Ms Victoria Butler-Cole KC and Mr Neil Allen (instructed by Simpson Millar LLP) for the First Respondent
Mr Joseph O'Brien KC and Mr Ben McCormack (instructed by EMG Solicitors) for the Second and Third Respondents
Hearing dates: 27 th and 28 th April 2023
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mr Justice Hayden
The judge has given leave for this version of the judgment to be published.
This application concerns Y, who is in her early twenties. Y is a natal male who identifies as female. Though she was initially taking hormone medication, which she was purchasing on the internet, she has now been referred to a gender specialist and is taking prescribed female hormone medication. Y was diagnosed with autistic spectrum disorder as a child. Her education records reveal difficulties with learning but she remained in mainstream education and was provided with support. She passed NVQ Level 1 and 2 in Engineering. In the summer of 2018, when Y was a very young adult, she sustained serious injuries in a road traffic accident. She was riding a motorbike and was involved in a collision with a car. The accident generated personal injury proceedings which are ongoing. Liability is not in issue in those proceedings, it has been admitted. Y was not at fault. Quantum of damages remains to be assessed. In those proceedings, Y's father (F) is her litigation friend.
Y has retained a team which includes a neuropsychologist. Her support package is overseen by a clinical lead. Establishing the package of support was challenging, complicated by the destabilising influence of Y's mother and, inevitably, exacerbated by the restrictions of the pandemic. Following an unsettled period where Y was moving between various hotels, seemingly, at her mother's direction, she eventually moved to a rehabilitation unit in Sheffield. The stability she achieved there was important and enabled her to move, in April 2022, to a rented bungalow in the North West, with a support package. Care and support is commissioned by her Deputies and managed by a case manager.
Prior to the issue of this application, Y's Deputies commissioned a report from Dr David Todd, Consultant Neuropsychologist. In his report Dr Todd assessed Y as lacking capacity to make a range of decisions but found that she had the capacity to engage in sexual relationships. As there was evidence that Y lacked capacity to make decisions as to her residence and care arrangements, her living arrangements served effectively to deprive her of her liberty. Authorisation for this, pursuant to sections 4A and 16 of the Mental Capacity Act 2005 (‘MCA’) was subsequently given by orders made by the Court of Protection, upon the application by the Local Authority. After receipt of Dr Grace's report it was no longer disputed that the Y had the capacity to decide to take cross-sex hormones and to use the internet.
There is no doubt that Y sustained life changing injuries in her motorbike accident. She sustained a brain injury which is classified as moderate-severe and is associated with either permanent or transient changes in cognition, behaviour, and emotional regulation. Mr Browne KC, Counsel for the Local Authority, has emphasised that alongside the brain injury was a very serious injury to her left arm. The injury is to the brachial plexus. The brachial plexus is formed from five nerves that originate in the spinal cord at the neck. The plexus connects these five nerves with the nerves that provide sensation (feeling) to the skin and permit movement in the muscles of the arm and hand. The damage has been so significant that Y has no control at all of her left arm. Mr Browne has described the arm as “dead”. This injury caused a protracted period of intense pain which required significant pain relief. Y continues to have chronic pain.
The central issue in this case is whether Y has the capacity to take decisions in relation to her care and residence. Opinion on this is divided between Dr Janet Grace, Consultant Neuropsychiatrist, and Dr Todd. The two bring differing specialisms to bear. Whilst there are important areas of common ground, their ultimate conclusions are very significantly different. Mr O'Brien KC, Counsel for the Deputies, has described this as a “particularly complex and finely balanced case”. I agree that it is complex but I do not think it can properly be described as “finely balanced”. Dr Todd is very clear that Y lacks capacity to make decisions as to where she resides and the care and support, she requires. Dr Grace forcefully articulates the opposite opinion. Ultimately, the question for the Court is which of the two views is to be preferred.
Dr Todd considers that Y presents with Dysexecutive Syndrome, consequent on traumatic brain injury. This presentation is associated with damage to the anterior frontal regions of the brain and/or to the various white matter networks connecting these regions with other areas of the brain. He draws my attention to what is termed “the frontal lobe paradox” (recognised in research papers e.g., George and Gilbert, 2018):
“Patients with frontal lobe damage can perform well in interview and test settings, despite marked impairments in everyday life. This is known as the frontal lobe paradox'. Failing to take account of this when conducting Mental Capacity Act assessments can result in disastrous consequences for patients. We suggest that neuropsychologists work collaboratively with local authority social workers and care managers, who often have the final say in such assessments, to raise awareness of this issue”.
Dr Todd highlights the recognised cognitive aspects of ‘dysexecutive syndrome’, which are non-exhaustive:
• Perseveration in [her] thinking style and behavioural responses
• Reduced generativity in thought
• Poor self monitoring of responses and inhibition of rule-break errors
• Difficulties in source memory, “fixing” newly learned information to where and when it was learned, and intrusive errors in memory recall
• Poor abstract reasoning ability
• Reduced capacity for novel problem-solving
• Reduced self-awareness, poor judgement
• Post hoc rationalization, blaming others for [her] own actions and behaviour
The emotional elements of [her] dysexecutive syndrome include:
• Shallow irritability and poor frustration tolerance
• Poorly regulated emotions such as anxiety and frustration
• Impaired mentalising of others emotional state and intentions, leading to vulnerability to exploitation
The behavioural factors of [her] dysexecutive syndrome include:
• Impulsivity
• Disinhibition — leading to blunt and rude comments
• Perseverative and compulsive behaviours
Dr Todd noted that in his initial conversation with Y, she displayed good verbal reasoning skills and presented as articulate, even “erudite” and revealed a good sense of humour. When Dr Todd met Y, she was not using female pronouns but given that she does now, I have concluded it would be respectful to her, as well as less confusing for the reader of this judgment, if I amended the earlier documentation in the way foreshadowed above. Dr Todd described Y as “superficially plausible in discussion” and skilled in presenting “a compelling narrative” but, based on his understanding of the nature of the brain injury and following a deeper, more detailed enquiry, Dr Todd considered that Y revealed difficulties in aspects of her cognitive function, including attention and memory. He considered that Y's relative strength in verbal reasoning were concealing “the most disabling aspects of her clinical presentation”, which he identifies as a “pervasive dysexecutive behaviour (an organic personality disorder) (my emphasis) as a “direct sequela” which “affects her cognitive abilities, emotional regulation and behavioural control”.
Dr Todd sets out a thorough account of his meeting with Y in which he identifies Y as having ‘gaps in memory’, ‘practical issues with care’; ‘showering, changing clothes, cooking’; ‘cognitive fatigue and loss of energy’. He considered that the incident in which Y dislocated and fractured her ankle, in consequence of a skateboard injury, revealed an “impulsivity placing her at risk of injury”, given that she has absolutely no use of her left arm. Dr Todd records Y as experiencing symptoms of anxiety and depression which Y said can manifest in “tearfulness”. Whilst in the rehabilitation unit, Dr Todd considered that the documentation suggested that Y did not engage in all the activities offered to her and withdrew from many of the therapeutic interventions. It is common ground that Y was unhappy in that unit and some thought has been given as to how her behaviour at that time should be interpreted. Dr Todd considers that Y displays an inability to organise and plan or to convert an expression of motivation into practice. In relation to the decision concerning where to live, Dr Todd considered that Y was highly suggestible and vulnerable to the expressed opinion of others.
Dr Grace portrays what, to my mind, is a distinctly different picture of Y's behaviour. Whilst she considers that Y is impulsive, difficult to contain and risk taking, she believes that to be largely confined to occasions in which she is “clearly hyper-aroused”. She asserts that these patterns of behaviour were present pre-injury and...
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