Judge: Baker J.
Citation: CC v KK and STCC
Summary: KK was an 82-year old woman with Parkinson’s Disease, vascular dementia, and paralysis down her left side. Following the death of her husband, she moved and settled in a rented bungalow. However, incapacity and best interests determinations had resulted in her being placed in a nursing home between July and October 2010 and from July 2011. Her deprivation of liberty was authorised under Schedule A1 of the MCA from 12 August 2011 which she challenged under MCA s.21A on 2 September 2011.
Trial home visits commenced in November 2011 and subsequent requests for a DOL authorisation under Schedule A1 were refused on the basis that there was no deprivation of liberty. The s.21A challenge was dismissed and interim declarations granted as to her incapacity and best interests. By the time of the final hearing in May 2012, she was having daily home visits.
Mr Justice Baker was called upon to determine: (1) whether KK had capacity to make decisions about her residence and care, and (2) whether she had been, and or was being, deprived of her liberty. His Lordship concluded that she had residential capacity and had not been, and was not being, deprived of her liberty.
In the face of the unanimous views of both the independent expert psychiatrist and all of the professionals, KK asserted that she had capacity to make decisions concerning her residence. The court received evidence from her, not only in a written statement but also orally in court. Before weighing the competing evidence, his Lordship helpfully set out the approach to be taken by the Court when addressing questions of capacity (paras 17-25). The following summarises some of the key points arising from the judgment (including the citations thereto):
(a) Para 24: The roles of the court and the expert are distinct and it is the court that makes the final decision as to the person’s functional ability after considering all of the evidence, and not merely the views of the independent expert (A County Council v KD and L  EWHC 144 (Fam) paras 39, 44).
(b) Para 25: Professionals and the court must not be unduly influenced by the “protection imperative”; that is, the perceived need to protect the vulnerable adult (Oldham MBC v GW and PW  EWHC 136 (Fam); PH v A Local Authority, Z Ltd and R  EWHC 1704 (Fam)).
“25…[T]here is a risk that all professionals involved with treating and helping that person – including, of course, a judge in the Court of Protection – may feel drawn towards an outcome that is more protective of the adult and thus, in certain circumstances, fail to carry out an assessment of capacity that is detached and objective. On the other hand, the court must be equally careful not to be influenced by sympathy for a person’s wholly understandable wish to return home.”
(c) Para 22: The person need only comprehend and weigh the salient details relevant to the decision and not all the peripheral detail. Moreover, different individuals may give different weight to different factors (LBL v RYJ  EWHC 2664 (Fam) paras 24, 58). At para 65 Baker J held:
“…There is, I perceive, a danger that professionals, including judges, may objectively conflate a capacity assessment with a best interests analysis and conclude that the person under review should attach greater weight to the physical security and comfort of a residential home and less importance to the emotional security and comfort that the person derives from being in their own home. I remind myself again of the danger of the “protection imperative” identified by Ryder J in Oldham MBC v GW and PW (supra). These considerations underpin the cardinal rule, enshrined in statute, that a person is not to be treated as unable to make a decision merely because she makes what is perceived as being an unwise one.”
(d) Para 68: Capacity assessors should not start with a blank canvas: “The person under evaluation must be presented with detailed options so that their capacity to weigh up those options can be fairly assessed” (para 68).
KK was found to be clear, articulate, and betrayed relatively few signs of the dementia which afflicted her. She understood that she needed total support and carers visiting four times a day. Whilst she may have underestimated or minimised some of her needs, she did not do so to an extent that suggests that she lacked capacity to weigh up information (para 64). After citing passages from Munby LJ’s lecture, ‘Safeguarding and Dignity: Protecting Liberties – When is Safeguarding Abuse?’ (including “What good is it making someone safer if it merely makes them miserable?” – Baker J held (in passages sufficiently important to merit reproduction almost in full):
“67. In this case, I perceive a real danger that in assessing KK’s capacity professionals and the court may consciously or subconsciously attach excessive weight to their own views of how her physical safety may be best protected and insufficient weight to her own views of how her emotional needs may best be met.
68. This danger is linked, in my view, to a further problem with the local authority’s approach in this case…. I find that the local authority has not identified a complete package of support that would or might be available should KK return home, and that this has undermined the experts’ assessment of her capacity. The statute requires that, before a person can be treated as lacking capacity to make a decision, it must be shown that all practicable steps have been taken to help her to do so. As the Code of Practice makes clear, each person whose capacity is under scrutiny must be given ‘relevant information’ including ‘what the likely consequences of a decision would be (the possible effects of deciding one way or another)’. That requires a detailed analysis of the effects of the decision either way, which in turn necessitates identifying the best ways in which option would be supported. In order to understand the likely consequences of deciding to return home, KK should be given full details of the care package that would or might be available. The choice which KK should be asked to weigh up is not between the nursing home and a return to the bungalow with no or limited support, but rather between staying in the nursing home and a return home with all practicable support. I am not satisfied that KK was given full details of all practicable support that would or might be available should she return home to her bungalow.
69. When considering KK’s capacity to weigh up the options for her future residence, I adopt the approach of Macur J in LBJ v RYJ (supra), namely that it is not necessary for a person to demonstrate a capacity to understand and weigh up every detail of the respective options, but merely the salient factors. In this case, KK may lack the capacity to understand and weigh up every nuance or detail. In my judgment, however, she does understand the salient features, and I do not agree that her understanding is ‘superficial.’ She understands that she needs carers four times a day and that is dependent on them for supporting all activities in daily living. She understands that she needs to eat and drink, although she has views about what she likes and dislikes, and sometimes needs to be prompted. She understands that she may be lonely at home and that it would not be appropriate to use the lifeline merely to have a chat with someone. She understands that if she is on her own at night there may be a greater risk to her physical safety.
70. In weighing up the options, she is taking account of her needs and her vulnerabilities. On the other side of the scales, however, there is the immeasurable benefit of being in her own home. There is, truly, no place like home, and the emotional strength and succour which an elderly person derives from being at home, surrounded by familiar reminders of past life, must not be underestimated. When KK speaks disparagingly of the food in the nursing home, she is expressing a reasonable preference for the personalised care that she receives at home. When she talks of being disturbed by the noise from a distressed resident in an adjoining room, she is reasonably contrasting it with the peace and quiet of her own home.”
The fact that KK had used the lifeline emergency call service no fewer than 1097 times between January and July 2011 had been an important factor in the decision to move her back into the nursing home and remained a significant factor in the professionals’ assessment of her capacity:
“71. … To my mind, however, the local authority has not demonstrated that it has fully considered ways in which this issue could be addressed, for example by written notes or reminders, or even by employing night sitters in the initial stage of a return home. I also note that during KK’s daily home visits it has not been reported that she has used the telephone in ways similar to her previous use of the lifeline, although in the latter stages of her period at home prior to admission to care in July 2011 she was apparently using the lifeline excessively during the day as well as at night. Ultimately, however, I am not persuaded that calling an emergency service because one feels the need to speak to someone in the middle of the night, without fully understanding that one has that need or the full implications of making the call, is indicative of a lack of capacity to decide where one lives.
72. Another factor which features strongly in the local authority’s thinking is KK’s failure to eat and drink. Here again, however, I conclude that more could be done to address this issue by written notes and reminders, and by paying greater attention to KK’s likes and dislikes. KK is not the only older person who is fussy about what she eats and drinks.
73. I do not consider the fact that KK needs to be helped about overusing the lifeline, or reminded to eat and drink regularly, carry much weight in the assessment of her capacity. Overall, I found in her oral testimony clear evidence that she has a degree of discernment and that she is not simply saying that she wants to go home without thinking about the consequences. I note in particular that for a period earlier this year she elected not to go on her daily visits to the bungalow because of the inclement weather. This is, to my mind, clear evidence that she has the capacity to understand and weigh up information and make a decision. Likewise, I consider her frank observation that ‘if I fall over and die on the floor, then I die on the floor’ demonstrates to me that she is aware of, and has weighed up, the greater risk of physical harm if she goes home. I venture to think that many and probably most people in her position would take a similar view. It is not an unreasonable view to hold. It does not show that a lack of capacity to weigh up information. Rather it is an example of how different individuals may give different weight to different factors.
74. This case illustrates the importance of the fundamental principle enshrined in s. 1(2) of the 2005 Act – that a person must be assumed to have capacity unless it is demonstrated that she lacks it. The burden lies on the local authority to prove that KK lacks capacity to make decisions as to where she lives. A disabled person, and a person with a degenerative condition, is as entitled as anyone else to the protection of this presumption of capacity. The assessment is issue-specific and time specific. In due course, her capacity may deteriorate. Indeed that is likely to happen given her diagnosis. At this hearing, however, the local authority has failed to prove that KK lacks capacity to make decisions as to where she should live.”
(2) Deprivation of liberty?
His Lordship noted that, pending the determination by the Supreme Court of the Official Solicitor’s appeals in P and Q v Surrey County Council  EWCA Civ 190 and Cheshire West and Chester Council v P  EWCA Civ 1257, there was “some uncertainty on the future interpretation of the deprivation of liberty provisions under the 2005 Act. It is obviously of great importance to all professionals practising in this field that this uncertainty is resolved promptly” (para 81). A summary of the present law is then provided at paras 83-96. In relation to the comparator approach adopted by the Court of Appeal in Cheshire West, his Lordship noted:
“95. I anticipate that this aspect of the decision in Cheshire West will receive particular scrutiny in the Supreme Court. It has been the subject of academic criticism on the grounds that, insofar as it may permit some people to be denied a declaration of deprivation of liberty in circumstances where others would be entitled to such a declaration, it may be discriminatory. The decision of the Court of Appeal is, of course, binding on this court.”
Insofar as the relevance of purpose is concerned, Baker J cited the European Court of Human Rights’ decision in Austin and others v United Kingdom  ECHR 459 and the following passage from Munby LJ’s lecture (supra):
“Where does this leave us? And where in particular does it leave the decisions in P and Q and Cheshire West? It is early days and you will understand that I must be careful what I say. A provisional and very tentative view might be that questions of reason, purpose, aim, motive and intention are wholly irrelevant to the question of whether there is a deprivation of liberty; that anything in the domestic authorities (and particular in Cheshire West) which suggests otherwise needs to be reconsidered; that in all other respects P and Q and Cheshire West stand as good law; that none of this affects the correctness of the actual decisions in the two cases; and that none of this is likely to have any decisive effect on the outcome in the general run of cases of the kind with which we are concerned.”
Pending the appeals to the Supreme Court, Baker J. held (at para 96) that “the right course is to have regard to the purpose for a decision as part of the overall circumstances and context, but to focus on the concrete situation in determining whether the objective element is satisfied”. In deciding that KK had not been and was not deprived of her liberty, his Lordship’s reasoning merits full citation:
“98. On any view, staff at STCC exercise a large measure of control over KK’s care and movements. The fact that she is disabled means that she is completely dependent on others for her care and treatment. When one considers the “relevant comparator”, it is clear that anybody with KK’s disability would experience a significant physical restriction on the life that they are able to lead. In this case, however, there is no suggestion that the manner in which KK is looked after at STCC is significantly more restrictive than it would be were she to live at home in her bungalow. As in all nursing homes, KK’s needs have to be accommodated alongside the needs of other residents. No doubt she sometimes has to wait before her care needs are attended to. But the evidence suggests that staff are appropriately attentive to her as far as possible given the other demands on their time. KK has a number of grumbles about the food, and the level of noise in the nursing home. Overall, however, I do not detect any significant level of complaint by KK about the way in which she is treated at STCC.
99. There is, of course, no doubt that KK does object strongly to her residence at STCC. As Wilson LJ observed in P and Q (supra) her objections are a factor pointing towards deprivation of liberty. KK has a strong wish to live at home and the fact that this wish is frustrated undoubtedly causes her a degree of stress and distress. On at least one occasion, when she said that she did not wish to return home after a visit, her wishes were ignored. Clearly that was an example of her objections being overridden. Earlier difficult behaviour has subsided and there is now little evidence that her overruled objections lead to a significant degree of conflict. I have not been told of a pattern of regular or significant arguments between KK and the staff at the care home. On the contrary, the evidence suggests that KK does not repeatedly raise the topic of returning home in everyday conversations with staff. In my judgment, staff at STCC are dealing with KK’s wish to go home with tact and sensitivity.
100. On the other side of the scale, there are a number of factors pointing away from a finding of deprivation of liberty. There is no suggestion that restraint is ever used. Equally, there is no suggestion that sedation is used. KK’s door is not locked. With the assistance of members of staff, she is able to go elsewhere in the nursing home, in particular to the lounge, if she so chooses. She is consulted about her day to day care and treatment. There are no restrictions placed on her contacts with other people. Overall, the arrangements for her care could not, in my view, be described as one of “continuous control”. I do not, therefore, consider that KK has lost a significant level of personal autonomy as a result of her residence at the nursing home.
101. I turn finally to the question of the ‘relative normality’ of KK’s life. She is in what some might describe as ‘an institution’ rather than her own home, but on the spectrum identified by Wilson LJ [in] P and Q, it seems to me to be far removed from type of institution associated with a deprivation of liberty. It is, in the words of McFarlane J (as he then was) in LLBC v TG, JG and KR  EWHC 2640  1 FLR 414 ‘an ordinary care home where only ordinary restrictions of liberty apply’. By all accounts, it is a well run nursing home which puts the needs of its residents first. I bear in mind that KK’s disability itself imposes a degree of restriction on her life. I do not consider that the circumstances of her placement at STCC significantly add to that restriction.
102. KK is now spending part of everyday at home at her bungalow. In my experience, this is unusual compared to most other residents of nursing homes. Considerable time and effort is devoted to enabling KK to experience a greater degree of freedom by returning home. Just as Wilson LJ in P and Q considered the fact that a child or young adult attends school or college or a day centre or other form of occupation to be a sign of normality which would indicate that the circumstances do not amount to a deprivation of liberty, so I find the fact that KK, with a degree of planning and notice, goes home on most days is a sign of normality indicating that her circumstances do not amount to a deprivation of liberty. In addition, she is also able to leave the nursing home on other occasions accompanied by her friend EB and her IMCA, JM.
103. I therefore conclude that KK’s circumstances do not amount to a breach of her rights under Article 5. In my judgment, she was not being deprived of her liberty before the introduction of the home visits in November 2011. Now that KK is able to go home on a daily basis, I find that the circumstances in this case fall well short of a deprivation of liberty.”
Capacity – This judgment provides a very useful and detailed analysis of the approach to be taken to determining the functional limb of the capacity test. It is no doubt one of the relatively few cases in which the Court has disagreed with the consensus of expert and professional opinion. Had KK not been enabled to provide written and oral testimony, matters might have been very different. Indeed, we would suggest that taking all practicable steps to involve the subject of the proceedings conforms with the philosophy of the MCA and their right to a fair trial under Article 6. The particular steps will of course differ in each case. Examples we have come across include attendance notes, videos of P, IMCA reports, supporting the person to attend court, and judicial visits to the person’s place of residence.
Identifying both the relevant decision and the information relevant to it can be a somewhat subjective exercise, with a real danger of capacity assessments being conflated with the assessor’s views on best interests. Detachment and objectivity is key. Approaching matters on the basis that the closer the person’s views are to those of the assessor the more likely they are to have capacity has always been a forbidden line of reasoning which this judgment has reinforced. The wisdom and practicable steps principles in MCA s.1 are designed to guard against this danger. And Baker J’s emphasis on the need to take such steps – in this case, identifying the full details of the domiciliary care package that would or might be available to KK – is extremely important. For nobody can make an informed decision without being made aware of the salient details.
Deprivation of liberty – As noted by Baker J, the situation is at present deeply unsatisfactory. The indication that we have at present is that the (joined) appeals in Cheshire West and P and Q will not be heard by the Supreme Court until well into next year, such that we are unlikely to have a judgment for (at least) a year’s time. Subsequent to the decision in Cheshire West, the ECHR has had cause to consider the questions of deprivation of liberty not just in Austin but also in Stanev v Bulgaria (Application No. 3760/06, decision of the Grand Chamber of 17.1.12); and DD v Lithuania (Application No. 13469/06, decision of 14.2.12).
As indicated by Baker J – and apparently accepted by Munby LJ – there is a mismatch in at least one fundamental respect between the approach taken in Cheshire West and the approach now taken by Strasbourg. As Alex is exploring in work being done on his sabbatical, the decisions in both Stanev and DD would also appear to cast further doubt upon the approach taken in Cheshire West, and might – indeed – to suggest that (at least as regards the objective element) we may have entangled ourselves in unnecessary Gordian knots by moving away from what may have been a very simple question posed in Bournewood: namely whether Mr L was free to leave. [Footnote: Alex would emphasise that this view is not necessarily shared by other members of the editorial team, or indeed other members of the 39 Essex Street Court of Protection team].
Especially given the terms of s.64(5) MCA 2005 (linking the definition of a deprivation of liberty for purposes of the Act to Article 5(1) ECHR, suggesting that linkage is to the Article as interpreted by Strasbourg, rather than our courts), any mismatch between the approach taken in the two jurisdictions makes it extremely difficult for those advising upon what is or is not a deprivation of liberty, as well as for those seeking to implement the provisions of Schedule A1 upon the ground.
Whilst it arguably would be possible for a first instance judge to use s.64(5) to proceed on the basis that: (a) the Strasbourg court has now further pronounced upon the definition of a deprivation of liberty; (b) that definition (binding for purposes of s.64(5) MCA 2005) is materially different to that given in Cheshire West; and hence (c) Cheshire West is on that basis not good law and does not need to be followed, it is fair to say that this would represent an extremely bold break with conventional principles. The approach adopted by Baker J in KK is therefore undoubtedly the one that is more likely to be adopted in the interim pending the determination by the Supreme Court of the appeals.
Against this backdrop, it is therefore particularly interesting that that the Scottish Law Commission has recently published a discussion paper upon Adults with Incapacity (available at http://www.scotlawcom.gov.uk/news/discussion-paper-on-adults-with-incapacity/). This paper presents a number of provisional views upon possible options for the Scottish Government to create a statutory regime to close the Bournewood gap north of the border (the consultation period upon the discussion paper closing on 31st October 2012). The paper makes required reading for anyone interested in deprivation of liberty matters, not least because it contains a clear-eyed and detached dissection of the jurisprudence in England, Scotland and Strasbourg, as well as a tour d’horizon of the approach taken in other jurisdictions.
One of the most interesting – provisional – conclusions of the paper is that Scotland should not seek to follow the route adopted by Parliament in Westminster by enacting s.64(5) MCA 2005, but should rather seek to enact a statutory definition of what constitutes (and does not constitute) a deprivation of liberty. This would avoid what the Scottish Law Commission provisionally identify as two of the main problems with the DOLS regime arising out of s.64(5):
“First, the result is a lack of guidance to those working in the area and, secondly, individual case-by-case assessment appears necessary, with lengthy hearings of evidence and consequent demands on resources.” (paragraph 6.41)
Quite what that statutory definition should include is the subject of some detailed consideration, outside the scope of this newsletter. It is, perhaps, worth noting that it would appear clear the Commission harbours some – polite – doubts about the approach that has been taken recently in England. As it drily notes:
“6.60 Were Scots law to develop provisions concerning deprivation of liberty which relied directly on concepts such as the purpose of a measure and the effect of a comparison with another person with similar disabilities in distinguishing deprivation of liberty from the provision of care, there would be a risk that such measures might not accord with Strasbourg case-law on Article 5.”
The paper is also of interest for suggesting that the ECtHR may have recognised in Stanev the principle that “valid replacement” of the wishes of the person with incapacity would prevent the regime under which he or she is living from being a deprivation of liberty at all (see the discussion at paragraph 6.73). If correct (and we – or least Alex – would respectfully suggest that it is doubtful that this is correct), this would undoubtedly put a very substantial cat amongst the DOLS pigeons and potentially would require a complete reworking of the statutory regime of Schedule A1 to identify when, how and by whom such “valid replacement” could take place. It would also give rise to questions as to how the ‘non-DOL’ could be reviewed to ensure that a once-for-all replacement of wishes could not lead to the incapacitated adult being deprived of any regular statutory oversight of their position going forward (and hence the Bournewood gap yawning open again in different form). Yet another reason why we entirely echo Baker J’s plea that the questions arising upon the appeals to the Supreme Court in Cheshire West and P and Q are resolved speedily…
Jurisdiction – As a final point, the judgment is also worth noting for the pragmatic (and we would suggest entirely correct) approach taken to s.21A in this case. Baker J noted that, prima facie, the Court’s powers under s.21A extend to determining the questions arising under that section and, if appropriate depending on its determination, making an order varying or terminating a standard authorisation. However,
“16…. But once an application is made to the Court under s. 21A, the Court’s powers are not confined simply to determining that question. Once its jurisdiction is invoked, the court has a discretionary power under s. 15 to make declarations as to (a) whether a person has or lacks capacity to make a decision specified in the declaration; (b) whether a person has or lacks capacity to make decisions on such matters as are described in the declaration, and (c) the lawfulness or otherwise of any act done, or yet to be done, in relation to that person. Where P lacks capacity, the court has wide powers under s. 16 to make decisions on P’s behalf in relation to matters concerning his personal welfare or property or affairs.”
Whilst it is clear (on this approach) that the Court will not consider itself narrowly bound by the confines of s.21A upon an application under its provisions, it is necessary to recall that the Legal Services Commission continues to take a very narrow view of the scope of s.21A for purposes of the non means-tested public funding available for such applications.