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Cite as: [2014] EWCOP 29

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Neutral Citation Number: [2014] EWCOP 29
Case No. 1249769T

IN THE COURT OF PROTECTION

Birmingham Civil Justice Centre
33, Bull Street, Birmingham
13th June 2014

B e f o r e :

HIS HONOUR JUDGE CARDINAL
____________________

X Applican
-and-
A LOCAL AUTHORITY
AN N.H.S. TRUST Respondents

____________________

Transcribed by Cater Walsh Reporting Limited
(Official Court Reporters and Audio Transcribers)
1st Floor, Paddington House, New Road, Kidderminster. DY10 1AL
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and
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____________________

Appearances:
For X: Mr Malcolm Chisholm
For the Local Authority: Ms Anna Bicarregui
For the NHS Trust: Ms Sarah Knight, solicitor

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    JUDGE CARDINAL:

  1. X is a retired lawyer who has suffered, or appears to have suffered, from Korsakoff's syndrome, a mental illness related to the over-consumption of alcohol. Indeed, he would admit to drinking to excess since the breakdown of his second marriage to his wife, P, although records show excessive alcohol consumption well before that date. He presently resides at the V Care Home in Y area where he has resided since on or about 28th May of this year. He had been admitted to the L Ward in Z Area on 18th December last year and made subject to a section under section 2 of the Mental Health Act 1983 as amended. From there he was transferred to the M Centre at A Area and detained under section 3 of the 1983 Act on 9th January of this year. He was discharged from this six month section on 24th April but has remained in hospital. An urgent authorisation was obtained on 1st May and a standard authorisation to detain him on 13th May. He moved to his present accommodation pursuant to my Order of 27th May 2014, a place better suited for his particular difficulties.
  2. X appealed that standard authorisation, hence the case being listed before me in late May. I made directions and sought a medical opinion from his treating doctor pursuant to section 49 of the 2005 Mental Capacity Act. However, by moving he needed a new standard authorisation and one was sought which was refused as a result of assessments by Dr. Loosemore and Miss Wright, the social worker. The capacity assessment prepared upon him says that X does not now lack capacity to make decisions as to his residence, medical and care needs; so I am faced with the difficulty of still not receiving the section 49 report. Nonetheless, it is appropriate to deal with whether X should continue to be detained.
  3. This court has power under section 15 of the 2005 Act to make declarations as to X's capacity to make decisions as to residence, et cetera, and the law is set out clearly in section 48 of the Act as to whether or not I should deem that he should be detained in the interim.
  4. The leading case on that is the decision of Her Honour Judge Marshall in the case of Re: F [2009] E.W.H.C. B30, a decision followed by myself in S.M.B.C. v W.M.P. [2011] E.W.C.O.P. B13. In that latter case, referring to the former, I said this: "I approach the matter by respectfully concurring with the learned judge's remark that, 'What is required is simply evidence to justify a reasonable belief that P may lack capacity in the relevant regard' and again 'If lack of capacity is clear the point will never be debated. If it is not but is genuinely in doubt then that is just the case in which the court should be able to intervene promptly to enable a fast and efficient determination of the issue.'".
  5. X's medical notes are lengthy but the issue as to his capacity can be dealt with by reference to the evidence that has been adduced before me. I have heard in the application on Wednesday of this week from Dr. Loosemore, who conducted the mental capacity assessment for the supervisory body for the deprivation of liberty application by the managing authority at the V Care Home. I have also heard from the key social worker, Ms Andrea Kingdom and informally from X himself, and of course relevant documentation has been drawn to my attention.
  6. I note at this early stage that X is plainly a very intelligent man. He is a man who is of course familiar with civil cases in the courts, but it is clear that intelligence and education do not necessarily equate to capacity, although it needs to be said this is not a case of learning difficulties but whether mental illness has deprived X of the appropriate capacity.
  7. It is right and proper that I should remind myself of the relevant principles underlying the 2005 Act. Section 1(2), "A person must be assumed to have capacity unless it is established that he lacks capacity" 1(3) "A person is not to be treated as unable to make a decision unless all practical steps to help him to do so have been taken without success" and subsection (4) "A person is not to be treated as unable to make a decision merely because he makes an unwise decision". Section 1(2) places the burden of proving the lack of capacity upon he who seeks to do so, in other words the burden is on the local authority in this case.
  8. So what of X's alleged lack of capacity? The tests as to capacity are set out in sections 2 and 3 of the 2005 Act. Section 2 is the so-called diagnostic test and section 2(1), I remind myself, says, "For the purpose of this Act a person lacks capacity 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 disturbance in the functioning of the mind or brain." I have heard nothing in this application that casts doubt on the fact that this Applicant, X, has suffered and to a degree still is suffering from a form of mental illness. That is what Dr. Loosemore, the consultant psychiatrist who examined him, has to say, although he also said that he was well on the road to recovery. There is no doubt between the advocates in this case that X lacks litigation capacity but the issue I have to determine is whether he lacks capacity to make decisions as to residence, treatment and care plan, for the law is decision specific.
  9. So I move to section 3, the so-called functional test which, in my judgment, is the key point in this case. Section 3(1) says this: "For the purpose 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) to use or weigh that information as part of the process of making the decision, or (d) to communicate that decision, whether by talking, using sign language or any other means." So the test is decision specific and time specific. So if I am to authorise X's further detention, in other words in effect his deprivation of liberty, then he must currently lack capacity to make a decision as to residence, et cetera.
  10. Now the issue is not entirely straight forward with this case. Sadly, his current treating psychiatric consultant, Dr. Al-Kaissy, is absent abroad and so I was unable to hear from her. I have seen, however, an undated mental capacity assessment by her and taken on board what she says in that she is quite sure that he lacks the appropriate executive functioning capacity. It is her view in that report, and also that of the social worker, who has known him for the duration of his illness, Ms Kingdom, that he continues to lack capacity; or rather I do not have an updated report from Dr. Al-Kaissy but the social worker remains of the view that he continues to lack that capacity. By contrast, Dr. Loosemore does not accept that he now lacks the appropriate capacity, a view supported by Lucy Bright, the social worker who, together with Dr. Loosemore, assessed him for deprivation of liberty purposes. I did not hear from Miss Bright but nonetheless I have read what she has to say and I notice that she said that he continues to have a poor short term memory and that he needs prompting in connection with washing and dressing. But she made a number of observations which I shall read. At D108 in the bundle she said this: "Both Dr. Loosemore and I had a lengthy interview with X and as a result of this interview Dr. Loosemore concluded that X has capacity to consent to his care and treatment at the V Care Home. I agree with this finding and, whilst I am aware that [X's] capacity may fluctuate, it would be difficult to conclude that he lacks capacity from the information he gave and understanding that he displayed during the interview." She continued to say this: "Given the conclusion reached by Dr. Loosemore that [X] has capacity to consent to his accommodation, care and treatment at the V Care Centre, he is not eligible for the Deprivation of Liberty safeguards and so this process now stops. I am aware others may challenge this finding and, given the variable way in which [X] can present, it may be worth a second opinion being sought, but the Mental Capacity Act is clear that someone's capacity should be assessed when they are at their best", and she goes on: "I would suggest that a way forward would be the care providers to draw up a voluntary contract with [X] about his length of stay at the unit including any support that they assess he needs accessing the community and how it can be provided with [X]'s consent. Efforts also need to be made swiftly to identify [X]'s long term accommodation needs and a suitable care package when he moves on from the rehabilitation unit."
  11. Dr. Loosemore reported in the same way and in his conclusion at D86 he says this: "I thought that Mr. [X] had capacity to decide on receiving care and treatment at the V Care Home. Although he did not like the experience of residing in the care home he is willing to stay for a period of assessment. If he were to be formally deprived of his liberty I think he would become distressed and aggrieved." His conclusion was very plain that X does not lack capacity with regard to residence, et cetera.
  12. In the course of oral evidence on Wednesday Dr. Loosemore firmly held to the view that X does not meet the statutory test, the functional test, under section 3 of the Act. He had seen X, he thought, for an hour, though Miss Bright wrote it was in fact 90 minutes. He by coincidence knew him when he was sectioned under section 2 of the Mental Health Act in December 2013 and certainly then he was very unwell. He conceded that X's capacity could fluctuate, but he observed, as does Miss Bright, that he needs to look at him at his best and he remained of the view throughout cross-examination that X does not lack capacity to make decisions as to residence, et cetera. He did not accept that, because there was a risk that X would resume drinking, that implied a lack of capacity. He had not spoken to the treating psychiatrist, Dr. Al-Kaissy, nor to the key social worker, in the course of forming his independent opinion, nor had he explicitly in the course of the document he completed referred to the factors set out in section 3 of the 2005 Act, but he nonetheless was of the view that X had appropriate understanding and that he can retain information as necessary, and he had completed his analysis on that basis with that conclusion. Although the completed document he had to fill in for the assessment purposes does not permit detailed analysis, nonetheless he was of the view that section 3 does not apply in this case. He conceded of course he did not refer to the section in his report but pointed out that the form F6 does not provide for the section 3 criteria to be referred to. He was satisfied that X can give an account of where he is residing, what his role there and what the benefits of residing there are. X knew he was not about to leave but averred that he did not get on well with the other residents. He was sure that X's mental state was improving and that he did not require detention at the V Care Home. He agreed that X had seemed reluctant to give up all drinking and enjoys a social drink, as he indicated also in evidence to me; but he also had said that he would abstain entirely if he had to. He conceded that it is always difficult to gauge with those who drink to excess as to the veracity of their promises. People who have a drinking problem make specious promises, he noted. He had not seen the current brief assessment of Dr. Al-Kaissy to which I have referred but he remained of the view that X now has capacity. He accepted of course Dr. Al-Kaissy has seen X regularly but it was his view that he was dealing now with a man very changed from the poor state in which he was presenting on 19th December of last year. Moreover, X had told him he was willing to stay voluntarily for a while and his view is that X is no longer disorientated, confused as to the date, et cetera, and, although he is a little repetitive, he is no longer rambling in his presentation. He described X as not fitting in with the rest of the ward but described him as rational and reasonable, logical in his thought processes. He had now the capacity to reflect on how he was and he agreed with the typed assessment of Miss Bright when considering the standard authorisation. He was shown the report of a neuropsychologist for 7th May but this did not alter his conclusions. I have to say that I found Dr. Loosemore to be a very persuasive witness. His view that X now has capacity was compelling.
  13. Ms Andrea Kingdom is a very experienced and very concerned social worker. I have read her statement of 21st May which of course has been overtaken by events. Contrary to Dr. Loosemore's opinion she thought X continues to lack capacity. There is no doubt of course that she knows him well and is very concerned about him, and I entirely accept that in law I am quite able to reject Dr. Loosemore's opinion and find that X lacks capacity for the purposes of section 48 so I can make an interim order. She still feels that X has difficulty in retaining information and she was concerned, because he is a highly intelligent man, that he is able to mask his cognitive difficulties. She felt he had unrealistic expectations as to the future, constantly saying he hopes to live again with his first wife and even remarry her and live with her. She was concerned too because he has no real idea as to where he is going to live upon discharge. She is concerned because when he had had leave in the past he has sought to drink on one occasion and then been found standing dangerously near a busy trunk road. On an occasion, when he went out to A House, he sought to obtain alcohol and kept asking for it. She felt Dr. Loosemore had seen X but briefly and that it is after about two hours with him that his present difficulties continue to manifest themselves. She did not accept that X's insight into his condition has appropriately increased and knew that he would not give up drinking. She was quite worried about him damaging himself. I listened very carefully to Ms Kingdom. I thought her evidence was very kindly and well intentioned. I make no criticisms of her professionally. I accept that there are many matters to be concerned about with regard to X but it is my view that he has shown rather more insight than she attributes to him. Of course she is used to patients who revert to mental illness and difficulties, but I do not accept that she has established the section 3 criteria to my reasonable satisfaction.
  14. X gave evidence unsworn at the suggestion of all the advocates in the case. In the course of his brief evidence to me he indicated, first, a wish to live with and, if possible, remarry his first wife. He told me she has been in regular contact with him since he has been hospitalised and, to his surprise and gratification, he thinks their relationship is in the course of being re-kindled, though he does not wish to rush things. He showed a tendency to repeat himself. He told me the information about his ex-first wife four times during the course of his evidence. He told me that he had decided he wishes to stay in the V Care Home until he can obtain either a home with his first wife or rented property and he would need a garden, he said. I felt this was a somewhat incomplete plan but, in fairness to him, he then went on to say that he would make contact with agents to try and find a place to live. He told me he is separated from P, his second wife, and told me that his excessive drinking and then hospitalisation and sectioning had been a "bitter experience". He was unable to explain why he was found standing by the main road, why he bought alcohol on leave and why he had sought alcohol when he visited A House. Now, I entirely accept that his plans for a reconciliation with his first wife and finding a home with her are vague and perhaps overly optimistic; but for all of that there was a degree of realism in what he said for he said he could not leave the home yet and would stay there till he found a place to go. His concept of his needs was plainly a little vague and I had to put to him that he would need visits from a C.P.N. and social workers to assist him to plan for his life. But I was left with the impression that this is not a man who is masking his illness or his cognitive capacity. His evidence, in my judgment, is more than that of just a man used to presenting a case in court and putting it simply in the best light for its own sake.
  15. So having reviewed the evidence in a complex case and applying the legal principles that I have set out during the course of this Judgment, I come to these conclusions. I have no doubt that X suffers from mental impairment as a result of his alcohol related mental illness and that, therefore, section 2 is met, and I have no doubt that he wholly lacked mental capacity as to decisions regarding residence, et cetera, in late 2013. I do not criticise the findings even of Dr. Al-Kaissy but a few weeks ago or the worries of the social worker in the case. My second conclusion is that this is a man who now can take decisions as to where he should live, what care he should have and as to his medical treatment. He is able to identify the factors relevant to making the decisions. He has identified the decision he needs to make, finding a rented property with the help of an agent or living with his ex-wife, even though that may be unrealistic. He understands what he has to do, even if his plans are not yet concrete, He was not able to identify the precise details of what he needs to do but that is not a legal requirement that he would do so. He understands the salient details, which is the L.B.C. test. I conclude, too, that, although he suffers from short term memory problems, he retains sufficient information to be able to deal with planning. I do note that at times in speaking he is hesitant and he plainly forgets some information but he keeps notes and keeps them carefully which will assist him. His thought process before me was reasonably logical. He has no problem in communicating a decision. He understands, in my judgment, the reasonably foreseeable consequences of his decisions and, above all else, he plainly fears the consequences of another mental breakdown and a visit to hospital.
  16. I have carefully and, I hope, sympathetically borne in mind the findings and concerns of Ms. Kingdom. He may drink to excess again, but that, in my view, is an unwise decision rather than a sign of continuing incapacity. I accept, as I have said, his short term memory problems are still there but, if one applies the Re: F decision and the S.M.B.C. v. W.M.P. decisions to which I have referred then I cannot find sufficient evidence to justify a reasonable belief that he lacks capacity in the relevant regard. True enough, Dr. Loosemore saw him for only a short time but, in my judgment, that was sufficient.
  17. In her closing submissions and I was greatly helped by her Miss Bicarregui for the local authority invited me to consider a number of points, first of all, that the section 49 report from Dr. Al-Kaissy is not due until 17th June. It was directed for that date of course but, as she herself conceded, Dr. Al-Kaissy is in fact absent abroad and she will not be seeing X until 20th June. It is my view that I have to consider very carefully X's Article 5 rights and it would be inappropriate to postpone matters and not review his detention now. Secondly, she reminded me that, in the course of setting up the hearing for Wednesday, I ascertained that a Family Division judge is available on 23rd June (or was then when I inquired) to consider this matter. Of course I do not know this morning whether one still is available. I accept her point that a Family Division judge could consider the matter under the inherent jurisdiction for the High Court judges still retain power under the inherent jurisdiction to deal with those who are vulnerable but otherwise capacitous, but it seems to me that would require an application from the local authority which it can and must undertake if it considers it appropriate. Thirdly, Miss Bicarregui told me that Dr. Loosemore failed to look at the mental capacity requirements under section 15 of Schedule A1 to the 2005 Act. Now, whilst I accept of course, as did he, that he had not very specifically addressed the section 3 criteria in his report, nonetheless he had covered the relevant ground. Fourthly, Dr. Loosemore, she said, did not provide adequate evidence that X would not leave the home. It seems to me that he had asked sufficient for the purposes of his investigations and I do not criticise him. Fifthly, she drew my attention to the occupational therapy report that pointed out the lack of appropriate training for X about his drink problem and how he would manage in the future, but I am content in the light of the evidence I have heard to rely on his assurance that he will remain at the home whilst he finds somewhere to go and, frankly, the local authority and the hospital can arrange for any appropriate assistance before he moves on. Sixthly, she said, Dr. Loosemore did not see all the documents in the case. He did not, that is true, but neither have I had all of them referred to me, nor could I possibly read them all before compiling this Judgment. For all that, I consider that Dr. Loosemore has reviewed sufficient and that I have heard enough to draw an appropriate conclusion.
  18. So it is that I agree with the final submissions by Mr. Chisholm on behalf of the Official Solicitor. X now has capacity to make decisions as to residence, care and medical treatment and that has been amply demonstrated in the case. Even if he has other problems he can reflect and logically reason, and is much improved from the man he was last December. That does not mean he will not relapse. It does not mean that he will not be foolish enough to resume drinking but, in my judgment, in all the circumstances it would be inappropriate to make a declaration under section 48 and in those circumstances, in the absence of a standard authorisation, his compulsory detention comes to an end.


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