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You are here: BAILII >> Databases >> England and Wales Court of Protection Decisions >> London Borough of Tower Hamlets v PB [2020] EWCOP 34 (03 July 2020) URL: http://www.bailii.org/ew/cases/EWCOP/2020/34.html Cite as: (2020) 176 BMLR 104, [2020] COPLR 791, [2020] 4 WLR 94, [2020] WLR(D) 392, [2020] EWCOP 34 |
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Strand, London, WC2A 2LL |
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B e f o r e :
VICE PRESIDENT OF THE COURT OF PROTECTION
____________________
London Borough of Tower Hamlets |
Applicant |
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- and – |
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PB (By his litigation friend, the Official Solicitor) |
Respondent |
____________________
Ms Fenella Morris QC & Mr Peter Mant (instructed by Bindmans LLP) for PB
Hearing dates: 12th March 2020
____________________
Crown Copyright ©
Mr Justice Hayden :
i. Whether PB hascapacity
to conduct this litigation and/or make decisions relating to where he lives and the care he receives;
ii. If PB lackscapacity
whether his current care and accommodation provision are in his best interests (in this context it is important to highlight that the restrictions with these arrangements are aimed at preventing PB from gaining access to alcohol, which he strenuously resents).
i. How the Court should approach the assessment ofcapacity
of individuals who are alcohol dependent;
ii. Whether or in what circumstances theMental Capacity
Act 2005 (MCA) should be used coercively to prevent people who are alcohol dependent from gaining access to alcohol.
"there is a space between an unwise decision and one which an individual does not have themental capacity
to take and … it is important to respect that space, and to ensure that it is preserved, for it is within that space that an individual's autonomy operates".
"The determination ofcapacity
under MCA 2005, Part 1 is decision specific…. all decisions, whatever their nature, fall to be evaluated within the straightforward and clear structure of MCA 2005, ss 1 to 3 which requires the court to have regard to 'a matter' requiring 'a decision'. There is neither need nor justification for the plain words of the statute to be embellished."
"3. Inability to make decisions
(1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable—
(a)to understand the information relevant to the decision,
(b)to retain that information,
(c)touse
or
weigh
that information as part of the process of making the decision, or
(d)to communicate his decision (whether by talking, using sign language or any other means).
(2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).
(3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.
(4) The information relevant to a decision includes information about the reasonably foreseeable consequences of—
(a)deciding one way or another, or
(b)failing to make the decision."
"Information about decisions the person has made based on a lack of understanding of risks or inability toweigh
up the information can form part of a
capacity
assessment – particularly if someone repeatedly makes decisions that put them at risk or result in harm to them or someone else."
"thecapacity
actually to engage in the decision-making process itself and to be able to see the various parts of the argument and to relate one to another".
"It is important to note that s 3(1)(c) is engaged where a person is unable touse
and
weigh
the relevant information as part of the process of making the decision. What is required is that the person is able to employ the relevant information in the decision-making process and determine what weight to give it relative to other information required to make the decision. Where a court is satisfied that a person is able to
use
and
weigh
the relevant information, the weight to be attached to that information in the decision-making process is a matter for the decision maker. Thus, where a person is able to
use
and
weigh
the relevant information but chooses to give that information no weight when reaching the decision in question, the element of the functional test comprised by s 3(1)(c) will not be satisfied. Within this context, a person cannot be considered to be unable to
use
and
weigh
information simply on the basis that he or she has applied his or her own values or outlook to that information in making the decision in question and chosen to attach no weight to that information in the decision making process."
Background
Capacity
i. PB has an impairment of the functioning of the mind or brain, caused by alcohol related brain damage and a dissocial personality disorder;
ii. PB hascapacity
to make decisions concerning his care and residence;
iii. PB had fluctuatingcapacity
to conduct proceedings.
i. Minimisations, rationalisations and justifications despite all evidence to the contrary are typical of people with substance dependence who are not generally considered to lackcapacity
;
ii. [PB] did not exclude the possibility he could die and defended his decision to continue drinking on grounds of autonomy ("it's my life") and fatalism ("I've not got long to live");
iii. His answers showed "sufficient understanding and acceptance of the risks to his health and well-being that would result from a decision to go back to drinking". Although [PB's] aim to keep drinking in moderation was unrealistic, "he was using the information that returning to more excessive drinking would be dangerous."
"(A) if he is allowed to go out unsupervised he will drink to excess
(B) drinking alcohol to excess will result in him developing extreme challenging behaviour with aggression which will likely result in him not being able to access support and becoming homeless
(C) drinking alcohol to excess will result in him developing life-threatening physical problems, including aspiration of his own vomit with repeated hospitalisations and a high probability of dying"
"23. Despite finding that [PB] could understand anduse
all of this information, Dr Costafreda nonetheless concluded that he lacked
capacity
to make decisions about his residence and care on the grounds that [PB] did not accept that recent episodes have demonstrated "beyond doubt" that he is unable to control his drinking, so that it is in fact "certain" that he will continue to drink to excess if he is not supervised."
"In Sheffield City Council v E [2004] EWHC 2808 (Fam) (a case concerning thecapacity
to marry decided before the implementation of the 2005 Act) Munby J (as he then was) said (at paragraph 144):
"We must be careful not to set the test ofcapacity
to marry too high, lest it operate as an unfair, unnecessary and indeed discriminatory bar against the mentally disabled".
Although that observation concerned thecapacity
to marry, I agree with the submission made by Miss Morris on behalf of the Official Solicitor in this case that it should be applied to other questions of
capacity
. In other words, courts must guard against imposing too high a test of
capacity
to decide issues such as residence because to do so would run the risk of discriminating against persons suffering from a
mental
disability. In my judgement, the carefully-drafted detailed provisions of the 2005 Act and the Code of Practice are consistent with this approach."
"[PB] is unable, in his decision-making, touse
the fact that he does not have control over his drinking. Instead of the true fact of his lack of control over alcohol, his thinking is informed by the belief that he will be able to contain his drinking within relatively safe limits. I think this is due to a combination of his alcohol dependence, with lack of insight in his inability to control his drinking, as well as executive dysfunction caused by alcohol-related brain damage, which causes impairment in the planning and monitoring of his own behaviour, so he is unable to learn from the repeated failures to control his drinking. (counsel's emphasis)"
"61. No person's choices should, as a matter of principle, be regarded as wholly predetermined. Every human being (whether mentally impaired or not) has potential to develop and change. That a person retains an optimistic view of their own future potential (in the face of past experience) cannot, in itself, be a proper basis for finding a lack ofcapacity
.
62. An approach that seeks to ascertain facts about how a person will behave in the future, and assesses theircapacity
against their acceptance of those facts, is not only unprincipled it is also impractical. The vicissitudes of life are so many and varied that no person can predict with certainty what another person, or he himself, will do in a particular set of circumstances. Professionals could reasonably hold very different views on the topic."
These rather metaphysical observations may well be correct, but the point is a simpler one, in my judgement. Section 3(4) (set out at paragraph 10 above) makes it plain that the material relevant to a decision includes information about the reasonably foreseeable consequences of deciding one way or another, or failing to make the decision. In his earlier reports Dr Costafreda was quite clear that PB was able to see the reasonably foreseeable consequences of his decision. That is the applicable test, recently endorsed in B (by her Litigation Friend the Official Solicitor) v A Local Authority [2019] EWCA Civ 913 and set out at paragraph 4.16 of the Code of Practice. 'Reasonably foreseeable consequences' are, self-evidently, quantitively and qualitatively different to the 'certainties' contemplated in Dr Costafreda's elevated criteria.
The approach tocapacity
.
"The local authority submits that the Official Solicitor is approaching this question from the wrong slant. The question is not whether PB will drink to excess: the question is whether he lackscapacity
to make decisions about his residence and care. The question of whether he will drink to excess is part of that. However, the question should be approached in a structured way.
The first question, therefore, is whether PB has an impairment of mind, or disturbance in the functioning of the mind or brain, temporary or permanent, as a result of which he is unable to make decisions. The second is to identify the relevant factors, and the third step is to consider the best interests of PB should the court consider that he does not havecapacity
."
"Nonetheless [the Local Authority], remains strongly of the view that PB does not havecapacity
to make decisions as to his residence and care having regard to alcohol consumption and in particular the consequences of alcohol consumption on his behaviour and thence on his care placement.
"a. PB has impairments of mind, namely a personality disorder and brain damage;
b. As a result of which he is unable to understand the relevant facts which are:
i. He is likely to drink to excess
ii. If he does he will be abusive and threatening
iii. And will therefore lose his accommodation.
c. It is in his best interests to reside at [F unit] and to receive care there in a way which prevents him from drinking to excess."
"I think it is useful to emphasise first that there is significant overlap between the manifestations of dissocial personality disorder and those of alcohol-related brain damage. I had briefly discussed this overlap in the initial report. Two important areas of overlap are executive dysfunction and behavioural abnormalities related to the frontal lobes, which can occur in both conditions.
In summary, while it is clear in my view that PB presents with both disorders, it can be difficult to establish whether a specific deficit or behaviour is due to one or the other disorder, or a combination of both, precisely because of this overlap.
Deficits in self-monitoring as part of PB's executive dysfunction due to alcohol-related brain damage are therefore likely to compound the difficulty in learning from negative experiences characteristic of dissocial personality disorder, and, in PB, their combined effect is likely to further impair his insight regarding alcohol drinking. PB's personality disorder therefore is likely to contribute to his inability touse
the information regarding his lack of control for drinking."
"2. People who lackcapacity
(1) For the purposes of this Act, a person lackscapacity
in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
(2) It does not matter whether the impairment or disturbance is permanent or temporary.
(3) A lack ofcapacity
cannot be established merely by reference to—
(a)a person's age or appearance, or
(b)a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about hiscapacity
.
(4) In proceedings under this Act or any other enactment, any question whether a person lackscapacity
within the meaning of this Act must be decided on the balance of probabilities…"
51. The difficulty in the case thus arises from the potential for the understandable professional concern about a vulnerable woman going to live with NC to impact upon themental capacity
assessment under MCA 2005 in a case where the degree of
mental
impairment lies in the borderline area. In such a case Mr Bowen is right to assert that the structure and provisions of the MCA 2005 are to be applied with clarity and care in order to ensure that the autonomy of the individual is not eroded by the court in a case which, in reality, does not come within the statutory provisions.
52. Against the background that I have described, the need for the Court of Protection to adhere to the structure established by MCA 2005, Part 1 is all too clear. In particular:
a. a person is not to be treated as unable to make a decision merely because he makes an unwise decision (s 1(4)); and
b. for the Court to have jurisdiction to make a best interests determination, the statute requires there to be a clear causative nexus betweenmental
impairment and any lack of
capacity
that may be found to exist (s 2(1))
53. Mr Butler's reference to Baroness Hale's description of the approach that underpins the MCA 2005 is timely; the court's jurisdiction is not founded upon professional concern as to the 'outcome' of an individual's decision. There may be many women who are seen to be in relationships with men regarded by professionals as predatory sexual offenders. The Court of Protection does not have jurisdiction to act to 'protect' these women if they do not lack themental capacity
to decide whether or not to be, or continue to be, in such a relationship. The individual's decision may be said to be 'against the better judgment' of the woman concerned, but the point is that, unless they lack
mental capacity
to make that judgment, it is against their better judgment. It is a judgment that they are entitled to make. The statute respects their autonomy so to decide and the Court of Protection has no jurisdiction to intervene.
Conclusions
i. The obligation of this Court to protect P is not confined to physical, emotional or medical welfare, it extends in all cases and at all times to the protection of P's autonomy;
ii. The healthy and moral human instinct to protect vulnerable people from unwise, indeed, potentially catastrophic decisions must never be permitted to eclipse their fundamental right to take their own decisions where they have thecapacity
to do so. Misguided paternalism has no place in the Court of Protection;
iii. Whatever factual similarities may arise in the case law, the Court will always be concerned to evaluate the particular decision faced by the individual (P) in every case. The framework of theMental Capacity
Act 2005 establishes a uniquely fact sensitive jurisdiction;
iv. The presumption ofcapacity
is the paramount principle in the MCA. It can only be displaced by cogent and well-reasoned analysis;
v. The criteria for assessingcapacity
should be established on a realistic evaluation of what is required to understand the ambit of a particular decision by the individual in focus. The bar should never be set unnecessarily high. The criteria by which
capacity
is evaluated on any particular issue should not be confined within artificial or conceptual silos but applied in a way which is sensitive to the particular circumstances of the case and the individual involved, see London Borough of Tower Hamlets v NB (consent to sex) [2019] EWCOP 27. The professional instinct to achieve that which is objectively in P's best interests should never influence the formulation of the criteria on which
capacity is assessed;
vi. It follows from the above that the weight to be given to P's expressed wishes and feelings will inevitably vary from case to case.