Judge: Hayden J
Citation:  EWCOP 34
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.
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.
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:
“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:
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:
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)  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.”
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.