London Borough of Tower Hamlets v PB

Judge: Hayden J

Citation: [2020] EWCOP 34

Summary

This decision deals with the thorny question of capacity in the context of alcohol dependence. The central issue was whether PB, a 52 year old man with a history of serious alcohol misuse, had capacity to make decisions about his care and residence.

The facts

PB suffered from alcohol-related brain damage and had been diagnosed with a dissocial personality disorder. In addition, he had diagnoses of chronic obstructive pulmonary disease, hepatitis C and HIV. He had become homeless and was then accommodated by the local authority in a supported living placement with a care package designed to prevent him from accessing alcohol (for example, PB was not allowed to leave the placement without an escort). The resulting deprivation of liberty was authorised, but PB objected to it. Specifically, PB asserted that he wished to stay at the placement but to be able to drink alcohol in moderation. However, a trial period of PB being allowed to drink broke down when PB returned drunk on various occasions and was abusive to staff.

The evidence

Expert evidence from a consultant psychiatrist initially found that PB had capacity to make decisions about his residence and care. In short, this conclusion was reached on the basis that, although PB seriously underestimated his ability to keep his alcohol dependence under control (recognised to be a common tendency of those suffering from substance abuse), he was able to explain coherently why he thought drinking in moderation would be possible (with the support of a stable placement and not being around other alcoholics) and, crucially, PB understood and accepted the risks to his health and well-being that would result from continued heavy drinking. This included an appreciation of the fact that he could die.

However, the expert subsequently changed his view, finding that in fact PB lacked capacity to make decisions about his care and residence. The rationale for this was that in weighing up information, PB was unable to appreciate that he did not have control over this drinking.

The court’s approach

Hayden J rejected the expert’s approach, and instead returned to first principles in his assessment of capacity. In so doing, he restated the provisions in s.1 and s.3 of the MCA 2005 and reviewed the case law on capacity. In light of this, Hayden J explained: “at the core of the Act is a central distinction between the inability to make a decision and the making of a decision which, objectively, would be regarded by others as unwise” (paragraph 5). Further:

14. Even where an individual fails to give appropriate weight to features of a decision that professionals might consider to be determinative, this will not in itself justify a conclusion that P lacks capacity. Smoking, for example is demonstrably injurious to health and potentially a risk to life. Objectively, these facts would logically indicate that nobody should smoke. Nonetheless, many still do. In Kings College NHS Foundation Trust v C and V [2015] EWCOP 80 at [38] MacDonald J stated:

“It is important to note that s 3(1)(c) is engaged where a person is unable to use 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.”

Hayden J went on to explain that the relevant question for determination here was not, in fact, whether PB had the capacity to make decisions upon alcohol.  Rather, it was, as the local authority proposed, “whether PB has the capacity to decide on where he should live and the care to be provided from him. That assessment requirements consideration of many of the factors identified by Theis J in LBX v K, L and M […] It also requires an evaluation of whether PB understands the impact on his residence of care arrangements of his continuing to drink, potentially to excess” (paragraph 41). Hayden J went on to answer this question in the affirmative, noting PB’s various statements in which he recognised the likely risks and consequences of continued heavy drinking (including the risk of death). Hayden J noted that:

42. Whilst I agree entirely with the Local Authority’s structured approach to the test to be applied, I do not agree with its conclusion on the evidence. On the contrary, PB’s analyses his dependency on alcohol in a way which is both articulate and rational. He is also clear as to the dire consequences of his drinking to excess. He makes the association between the consequences of drinking to excess and the impact on his care arrangement. He reconciles the two in his own mind by his conclusion that he should stay where he is but moderate his drinking to reasonable limits. There is within his plan an inherent recognition that drinking to excess and the sustainability of the placement are irreconcilable. There is much evidence from PB’s history that he is unlikely to be able to achieve this, but the potential gulf between his aspiration to moderation and the likely reality, does not negate the thought processes underpinning his reasoning. In any event I do not consider that there is evidence here which is sufficiently choate to rebut the presumption of capacity. The plan that PB identifies may not be sustainable long term but that does not permit an inference that he is unable to foresee the consequences of drinking to excess on the sustainability of the placement.

Hayden J declined to provide general guidance applicable to all substance abuse cases on the basis that each case must be carefully considered on its facts.  He also declined to give guidance on the second issue that DJ Eldergill had identified, namely, “[w]hether or in what circumstances the Mental Capacity Act 2005 (MCA) should be used coercively to prevent people who are alcohol dependent from gaining access to alcohol.”  However, he noted that he was:

50. […] uncomfortable with the terminology used in the order. […] Coercion has pejorative implications, it implies persuasion by use of force or threats. As such it has no place in the Court of Protection and jars entirely with the applicable principles of the MCA. Moreover, the question only arises when the issue of capacity has been determined. If P has capacity then manifestly the Act does not apply. If P lacks capacity, facilitating compliance with a regime to which he is opposed will always involve the lightest possible touch, the minimal level of restraint or restriction and for the shortest period of time.

Hayden J concluded at paragraph 51 with a statement of general principles, including the useful reminder that, “[w]hatever 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 the Mental Capacity Act 2005 establishes a uniquely fact sensitive jurisdiction,” and that “[t]he 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.”

Comment

On the facts of the case before Hayden J, it appears that the conclusion that PB had capacity to make decisions about his residence and care arrangements would have no actual impact, because, as Hayden J noted, he was “perfectly happy to remain where he was,” and it appears that, albeit rather by default than by design, he was able to leave the placement and drink.  Oddly, therefore, it might be said PB’s case was rather easier than the majority of cases in which alcohol dependence is in play, where the consequence of a conclusion that, notwithstanding the impact of that dependence, the person retains the capacity to make decisions about their residence and care arrangements is that the relevant public bodies feel that they are required to watch a vulnerable individual self-destruct, seemingly powerless to protect them from themselves.

Although Hayden J declined to give general guidance, the approach that he took to the question of alcohol dependence highlights two key points.

The first is that questions of capacity do not arise in isolation: in most situations the question of whether or not a person has capacity to make decisions about drinking is not, in and of itself, likely to be of critical importance.  Rather, it is the impact of their potential drinking upon their capacity to make other relevant decisions (here, as often about matters relating to residence and care) that is going to be of significance.  In other words, the proper approach will be to consider whether P is able to understand, retain, use and weigh relevant information for purposes of another decision, the consequences of their alcohol dependence (for instance breakdown of the placement, homelessness or even death) being part of that relevant information.

In some cases, it may be that (1) P cannot understand, retain, use or weigh those risks; and (2) the reason why they cannot do so is because of the impact of sustained alcohol and/or drug abuse.  In such a case, it can logically be said that that P’s alcohol dependence means that they do not have capacity to make decisions about their residence and care arrangements.  In other cases, this being one, if P can understand those risks (and there is no other relevant information that they cannot process) then they will not lack capacity to make decisions about their residence and care arrangements.  This is the case even where P is unrealistic about their ability to limit or moderate their substance abuse, so long as that lack of realism does not equate to inability to process the risks of that abuse. While the latter may be illustrative of unwise decision-making, it does not lead to the conclusion that P actually lacks the ability to make the relevant decision.

Mental capacity - Assessing capacity 03rd July 2020