Capacity Assessment of Pregnant Woman with Learning Disability: Presumption Upheld in Landmark Case

Citation: [2024] EWCOP 4
Judgment on


The case [2024] EWCOP 4 before Mrs Justice Knowles concerned an application for personal welfare orders regarding DY, a young woman with a learning disability, who was expecting her first child. The court had to determine whether DY had the capacity to make decisions about her residence, care, and contact with others under the Mental Capacity Act 2005 (“MCA”).

Key Facts

DY has a history of chromosomal duplicities, foetal alcohol spectrum disorder, moderate learning disability, and a background of trauma and abuse. Previous proceedings determined her lack of capacity in various domains. The present proceedings were initiated due to her improved presentation and circumstances, particularly her pregnancy, and the corresponding need to reassess her capacity.

The legal framework for the case was grounded in the MCA, emphasizing the principles that a person is presumed to have capacity unless established otherwise (s.1(2)), and that a person is not to be treated as unable to make a decision unless all practicable steps have been taken without success (s.1(3)). Another principle highlighted was that an unwise decision does not necessarily mean a person lacks capacity (s.1(4)).

Capacity assessments are time and matter-specific as outlined in s.2(1) MCA. The court relied on North Bristol NHS Trust v R [2023] EWCOP 5, summarizing the approach to capacity assessment post the Supreme Court decision in A Local Authority v JB [2021] UKSC 52, affirming that capacity assessments consider the person’s ability to understand, retain, weigh, and communicate the relevant information for the decision at hand.

The case of LBX v K, L and M [2013] EWHC 3230 (Fam), applied to this case, set out the specific information relevant to decisions on residence, care, and contact. AMDC [2020] EWCOP 58 was referenced for the standards required of expert assessors in providing clear evidence for their conclusions on capacity.


The court found that DY demonstrated a sufficient level of understanding and engagement to have capacity in respect of her residence, care needs, and contact with others currently. However, the court recognized the possibility that DY’s capacity could be compromised in the future, particularly in response to the birth of her baby and the accompanying stresses. The court observed improvements in DY’s behavior, engagement with support structures, and acknowledgment of her vulnerabilities since her pregnancy.


The court concluded that the statutory presumption of capacity remained unchallenged with respect to DY’s ability to make decisions about her residence, care, and contact with others. The court’s decision underscores the importance of adhering closely to the principles and framework provided by the MCA, which are critical in assessing and affirming an individual’s capacity. Mrs Justice Knowles also emphasized the dynamic and potentially changing nature of DY’s capacity, noting the court’s readiness to reassess if circumstances significantly alter following the birth of DY’s child. The case establishes the pertinence of the capacity assessment process being current-focused, including reassessments when there is a significant change in the individual’s circumstances, reinforcing the fluidity of capacity within the legal context.