Private Client analysis: Ella Anderson, barrister at Spire Barristers, discusses the practical implications of the judgment in Re FX  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?
This was an interesting case, which provides an important reminder of the necessity of faithfully applying the tests and principles contained within the Mental Capacity Act 2005 (MCA 2005) and developed through case law.
The tests and principles include:
- 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  EWHC 2665 (COP),  All ER (D) 290 (Feb) and CC v KK and STCC  EWCOP 2136,  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  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)  EWHC 973 (COP))
- capacity and best interests must not be conflated (see CC v KK and STCC)
After a decade of MCA 2005, the application of these principles seems obvious, but it is not uncommon for assessors to ‘fall down’ in this regard, by failing to properly consider and apply them or by failing to evidence that they have done so by way of a proper analysis.