Judge: HHJ Cardinal
Citation:  EWCOP 29
A very intelligent retired lawyer suffered from Korsakoff’s syndrome as a result of excessive alcohol consumption. Having previously been detained in hospital under the Mental Health Act 1983, Mr X now found himself detained in a care home. The issue for HHJ Cardinal was whether he lacked capacity to make decisions as to residence, treatment and care. His social worker and treating psychiatrist, who had known him throughout his illness, believed he lacked capacity. Whereas the DoLS assessors considered that Mr X had capacity. In determining the issue, the judge also heard unsworn evidence from Mr X.
His social worker felt that he had difficulty retaining information and was able to mask his cognitive difficulties that only manifested themselves after spending around two hours with him. She felt he had unrealistic expectations as to the future, constantly saying he hoped to remarry his first wife and to live with her. Having sought drink and been found standing dangerously near a busy trunk road during a previous period of leave, she was concerned that he had no real idea as to where he was going to live upon discharge. His psychiatrist, who was absent abroad at the date of the hearing, was also sure that he lacked the appropriate executive functioning capacity.
The psychiatrist appointed for the purposes of the DoLS authorisation spent between 60 and 90 minutes assessing his capacity. He also coincidentally knew of Mr X whilst he was previously detained in hospital. The psychiatrist considered his understanding and retention but not Mr X’s ability to use and weigh the relevant information. He conceded that his capacity could fluctuate but observed that he needed to look at him at his best. He did not accept that a risk that he would resume drinking implied a lack of capacity. He was satisfied that he could give an account of where he was residing, what his role there was, and what the benefits of residing there were. Mr X told him he was willing to stay voluntarily for a while. The best interests assessor concluded that Mr X continued to have poor short-term memory, required prompting for washing and dressing, and that his capacity may fluctuate with variable presentation.
In giving evidence, Mr X showed a tendency to repeat himself: he told the judge the information about his ex-first wife four times. He wished to stay in the care home until he could obtain either a home with her or rented property and said he would make contact with agents to try and find a place to live. Separated from his second wife, he described how his excessive drinking and sectioning had been a bitter experience. He was unable to explain why he was found standing by a main road, why he bought alcohol on leave and why he had sought alcohol on another occasion. Whilst his plans for a reconciliation with his first wife were vague and perhaps overly optimistic, there was a degree of realism because he said he could not leave the home yet and would stay there until he found a place to go. The judge went on to conclude:
“[T]his is a man who now can take decisions as to where he should live, what care he should have and as to his medical treatment. He is able to identify the factors relevant to making the decisions. He has identified the decision he needs to make, finding a rented property with the help of an agent or living with his ex-wife, even though that may be unrealistic. He understands what he has to do, even if his plans are not yet concrete. He was not able to identify the precise details of what he needs to do but that is not a legal requirement that he would do so. He understands the salient details, which is the L.B.C. test. I conclude, too, that, although he suffers from short term memory problems, he retains sufficient information to be able to deal with planning. I do note that at times in speaking he is hesitant and he plainly forgets some information but he keeps notes and keeps them carefully which will assist him. His thought process before me was reasonably logical. He has no problem in communicating a decision. He understands, in my judgment, the reasonably foreseeable consequences of his decisions and, above all else, he plainly fears the consequences of another mental breakdown and a visit to hospital.
He may drink to excess again, but that, in my view, is an unwise decision rather than a sign of continuing incapacity. I accept, as I have said, his short term memory problems are still there but, if one applies the Re: F decision and the S.M.B.C. v. W.M.P. decisions to which I have referred then I cannot find sufficient evidence to justify a reasonable belief that he lacks capacity in the relevant regard. True enough, Dr. Loosemore saw him for only a short time but, in my judgment, that was sufficient.”
It followed that his compulsory detention under DoLS would come to an end as he had capacity to consent, and was consenting, to remaining in the care home. HHJ Cardinal accepted that High Court judges retain power under the inherent jurisdiction to deal with those who were vulnerable but otherwise capacitous but this would require a separate application to be made.
The issue of fluctuating capacity has received relatively little judicial attention since the MCA 2005 emphasised the time-specific nature of capacity. Fluctuating cases seem to be addressed either through the use of interim declarations, using the lower incapacity threshold of “reason to believe that P lacks capacity”, or the court focuses on capacity at the time the decision has to be made. Neither way brings comfort to practitioners grappling with the situation where the person’s inability to decide varies on perhaps a daily, or even hourly, basis.