LM v NHS Sussex Integrated Care Board

Summary

This was a s.21A application issued by the Accredited Legal Representative (‘ALR’) for a man identified as LM, challenging the standard authorisation in respect of LM’s residence at a care home for people with acquired brain injury. A three day hearing was listed to determine the issue of LM’s capacity to make a variety of decisions. The evidence centered around the fact that the brain injury sustained by LM (in the words of HHJ Khan) “gives rise to a frontal lobe paradox (FLP).”  As explained by HHJ Khan, this was the discrepancy between LM’s ability to perform well on assessment and cognitive testing and his struggle to make decisions in every day life. This is often described as a person who  can talk the talk but not walk the walk.

By the time the matter came before the court, the parties had agreed that LM lacked the capacity to make decisions about his care and support, and that he had capacity to make decisions about engaging in sexual relations. Following the conclusion of the evidence, the parties agreed that HHJ Khan did not need to decide whether LM had capacity to use the Internet and social media, or have contact with others. They also agreed that the mental capacity requirement in Schedule A1 to the MCA 2005 was met. Thus the only issues for determination were whether LM had capacity to conduct proceedings and to make decisions about his residence.

Oral evidence was heard from a case manager (TW), Dr Radcliffe as the jointly instructed expert and Dr L, a clinical psychologist employed by LM’s placement. Both Dr L and Dr Radcliffe had concluded that LM had capacity to make decisions about his residence.

Notwithstanding the fact that the case had been brought under s.21A, HHJ Khan was persuaded that it was appropriate to make a s.15 declaration about LM’s capacity to make decisions about his residence. He went on to reject Dr Radcliffe’s and Dr L’s evidence about LM’s capacity and concluded that LM lacked the capacity to make decisions about his residence. He did so on the basis that the issues of care and accommodation could not realistically be separated and LM’s inability to “appreciate his need for intensive support directly affects his ability to make a meaningful decision about accommodation.”

Comment

The case serves as (yet another) reminder that there will be circumstances in which it is simply not possible to disentangle capacity to make decisions about care from capacity to make decisions about residence.

There are two further points of note. First, HHJ Khan expressed both surprise and disquiet regarding the trial timetable provided for one of the witnesses of fact to give evidence in chief – given that the issues that the local authority wished that witness to cover were known to the witness at the time the statement was made and had not arisen since the making of the statement. As HHJ Khan remarked, “a party who serves an incomplete witness statement runs the risk of the other party being prejudiced by being taken by surprise by additional evidence being given in chief, with a consequence of the inevitable adjournment.”  Court of Protection judges are often prepared to give more latitude to a party wishing to adduce evidence in chief than in other courts, but it is important to bear in mind the risks of this approach as articulated by HHJ Khan.

Secondly, it appears that the parties did not seek a finding in respect of LM’s capacity to make decisions about contact and social media and the internet on the basis that the assumption of capacity should remain in place, with staff being able to utilise the provisions of s.5 MCA 2005 if appropriate. It may be that the rationale for taking this approach (despite there being ‘no doubt’ that LM was vulnerable when he accessed social media and the internet), was the difficulties that would ensue if steps were taken to restrict or remove LM’s access to social media and the internet.  This is in line with what may be seen as emerging as a new orthodoxy (or, perhaps, a reversion to what Parliament actually intended), namely that s.5 should be the first line of consideration in relation to acts of care and treatment.  That does not mean, however, that judgment calls as to whether decisions about (for instance) contact are ‘merely’ unwise or incapacitous will necessarily be easy; above all, they will require sound ethical instincts.