Judge: Cobb J
Citation:  EWHC 990 (COP)
Summary: This case is a model of the approach to the assessment of the capacity to decide as to (1) ongoing medical treatment; (2) future residence and care; and (2) management of property and affairs.
IA was a 59 year old man suffering from Type 2 diabetes mellitus, who partially blind (due to diabetic retinopathy) and had limited mobility. He also had a serious kidney disease for which he required regular dialysis, and suffered from anaemia, as well as a number of serious complications as a result of his diabetes from which he was constantly at risk of severe infection.
In June 2007, IA was the subject of a violent criminal assault, being repeatedly kicked to the head; he sustained a serious head injury, involving skull fractures, brain haemorrhage and contusions to the right frontal area of the brain. As a result he suffered a degree of cognitive impairment for which he was treated at a specialist rehabilitation centre. The injury was said to have left IA with problems of memory, inflexibility of thought, impulsivity, and mood control. He had consequently exhibited deficits in executive functioning with reduced capacity to organise, judge and show control over decision-making.
IA had been an in-patient at a major London teaching hospital since November 2013, having been admitted as an emergency following an episode of diabetes-related hypoglycaemia. He was ready for discharge from hospital, and decisions were required as to his future care. The court had to determine whether IA had the capacity to make or contribute to the relevant decisions. There was before a care plan which provided proposals for post-discharge care which would either be delivered under the CCG’s ordinary statutory duties (IA had been assessed as eligible for NHS continuing healthcare in part due to non-compliance with care interventions and challenging behaviour), or as being as a plan representing his best interests under s.4 MCA 2005.
In directing himself as to the law, Cobb J made specific reference to (1) the need not to set the threshold in relation to capacity to understand unduly high; (2) the need that the person only understand the salient factors in relation to the respective options; and (3) the ‘clear guidance’ of the Court of Appeal in PC and NC v City of York in relation to the causative nexus (which Cobb J slightly curiously described as the ‘diagnostic test’).
Cobb J noted that IA’s capacity to take the material decisions had been ‘repetitively’ assessed over the course of 2 ½ years by a range of experts, a number of whom had not assessed IA personally because of his refusal to cooperate with appointments or assessments. As Dr Grace (a consultant neuro-psychiatrist instructed) noted, “assessment of capacity based on case notes is of necessity a relatively inadequate substitution for the complex assessments that occurs in a clinical interview.” A strong body of opinion had built up over that period that IA lacked the material decision-making capacity, but this was not entirely consistent.
Cobb J set out in detail the conclusions of those who had assessed IA’s capacity before continuing (at paragraph 52) that: “[g]iven that discrepancy of professional opinion, it was sensibly agreed, at court on 15 July 2013, that the parties be given permission jointly to instruct a further consultant neuro-psychiatrist to obtain a report on IA’s capacity to make the relevant decisions. There was a problem in actioning this instruction (IA did agree in principle to meet with a consultant psychiatrist, however of the fifteen experts suggested, only two were acceptable to IA; those two could not report in the prescribed time). At a subsequent hearing on 11 November 2013, TA agreed to identify two experts who would be acceptable to him, to assess IA’s capacity. This led to the joint instruction of Dr Anjum Bashir, Consultant Neuro-Psychiatrist, whose written evidence has been before the Court and tested orally at this hearing. Notably, IA has cooperated fully with Dr Bashir’s assessment.”
Dr Bashir concluded that IA had capacity in the material domains, giving a number of reports (individually and jointly with IA’s treating clinicians). His oral evidence was that IA had indeed suffered a serious brain injury in the 2007 assault, but did not accept that this is necessarily a static condition. He told Cobb J that he had direct experience of victims of such assaults improving in their decision-making capacity over a period of time.
“63. [Dr Bashir] indicated in terms (when cross-examined by Ms Scott [for the Official Solicitor on behalf of IA]) that IA is able to make a fully capacitous decision about choice of his future accommodation. He nonetheless emphasised the importance of a fully effective plan: he indicated that if IA was left on his own to do everything himself, he would be at risk of neglect. That is why he needs a carefully constructed care regime. Dr. Bashir confirmed that IA knows what his needs are (‘I asked him to specify his needs, and he did so. He does exhibit an understanding of his impairments’).”
Cobb J’s discussion of whether IA had the capacity in the relevant domains ran to 23 paragraphs of close analysis. In summary, however, he concluded:
“66. On the evidence reviewed above, and for the reasons fully set out below, I find that the assumption of capacity (section 1(2) MCA 2005) has not been displaced in respect of any of the three issues on which I am invited to adjudicate (§4(i)-(iii) above).
67. I am of the view that IA does have the capacity to make decisions about his medical treatment, future residential care, and property and financial affairs, and I shall so declare.
68. It seems to me that it has been of considerable benefit to IA that practical steps have been taken (including careful explanation by a trusted professional, Dr. Bashir) to assist him to reach these decisions, weighing up the information relevant to that decision; I trust that such assistance will be available to him in the future.
69. Although I am of the view that IA has made a number of unwise decisions in the past about his medical treatment and home living conditions, these
i) are not demonstrative of lack of capacity;
ii) are more reflective of his somewhat challenging personality; and
iii) in some respects in any event ante-date his acute brain injury and could not therefore be attributable to acquired cognitive deficit (see §46 above).
Moreover, there is reason to believe that his resistance to social work intervention is probably founded in a long-standing grievance about the compulsory purchase of his home, exacerbated by his suspicions about the plans of the authority for his future care.
70 There is a risk that he will make further unwise decisions in the future – hence the importance of effective support for him in the community, and a closely monitored care plan.”
Perhaps unsurprisingly, Cobb J noted that “[t]he plan for IA’s medical and other care will require very careful formulation and supervision. Appropriately trained care staff with experience of working with patients with brain injury will need to be engaged, with a proper level of expectation about IA’s personality. It would be of considerable assistance in my view if Dr. Bashir – a professional whom IA trusts and with whom he has co-operated well – can be directly involved in the transition plans for IA, so as to maximise the prospects that they will be accepted” (paragraph 95).
Comment: As noted at the outset, we would suggest that this decision is a model of careful capacity assessment, in particular in its careful delineation of the role played by IA’s “eccentric” personality in his decision-making – a factor clearly falling outside the scope of the MCA 2005. An unusual feature of the decision is that IA (despite being judged to lack litigation capacity) was given a role in the selection of the independent psychiatric expert – with whom it is then clear he was able to form a trusting and co-operative relationship. This is perhaps a slightly unconventional approach, but is one that sits very comfortably with perhaps the most ignored principle of the MCA (albeit the one that is most important for purposes of compliance with the CRPD), namely that it is only if all reasonable steps have been taken to help a person to take a decision, but without success, that a person can be treated as lacking capacity. The decision is also of note for its – entirely proper – recognition that the fact that IA had decision-making capacity in the relevant domains (or, to be precise, that those asserting that he did not had not established their case) did not mean that he should therefore be left without support; whilst applauding the decision of Cobb J on the facts, we are also equally clear that taking decisions in relation to IA’s future care will be no easy task for any of those involved.