Lancashire & South Cumbria NHS Foundation Trust & Lancashire County Council v AH

Summary

This case considered whether AH, who had diabetes and a diagnosis of a mild learning disability, had capacity to make decisions about residence, care, sharing information concerning her physical and mental health and care, and to conduct these proceedings.

AH was 46 years old and lived independently in the community. In late 2021, she was admitted to hospital suffering from acute confusion and high blood glucose. It had historically been difficult to ensure she managed her Type 1 diabetes care: AH has made it difficult for District Nurses to provide her insulin; [18] and AH’s rigid thinking had led to difficulties with multiagency information sharing. [19] Issues of capacity were considered to be complex [20] and it was queried whether in addition to her established diagnoses, she may also have a personality disorder and autism.

The initial application by the statutory bodies was for AH to be admitted to a care home placement for assessment. A single expert report was obtained from Dr Camden-Smith, which concluded that AH had an:

38...inability to understand that the care package she wishes to be supplied to her in her flat is simply not possible. [AH] is further incapable of using and/or weighing the information that she does understand due to her extreme egocentricity and rigidity and refusal to take reality or other views into account. She clings determinedly to her wishes even when these are quite simply impossible. This is due to a combination of her learning disability and personality traits (potentially autism as well) and has been a consistent factor throughout the years that she has been known to local solicitors and her care team. Learning disability and autism are lifelong immutable conditions, whilst personality disorder can be amenable to therapy, but this has not been effective in [AH’s] case. For these reasons it is my opinion that [AH] will not gain capacity in this area.”

Dr Camden-Smith also took the view that AH does not understand ‘that she had emotional, psychological and mental health needs’ [39] and that AH lacks capacity to 'make decision about information sharing, restrictions that amount to a deprivation of liberty and to litigate in these proceedings'. [41]

HHJ Burrows found that the approach taken by Dr Camden-Smith is a ‘clear example of the expert moving away from treating capacity decisions in “silos”, but rather considering how making decisions about different subjects interact with each other’.[49] Her report 'considered the correct relevant information in her assessment, including crucially the reasonably foreseeable consequences of making the decision one way or another- as has most recently been made clear in A Local Authority v JB.’ [50] The court accepted the evidence and made declarations accordingly.

HHJ Burrows identified the disconnect between the findings on capacity by the DOLS assessors and the expert evidence before the court. During the pendency of the case, AH had not been made subject to a standard authorisation (despite being a detained care home resident) due to conflicts between the DOLS assessors. The court had made a finding of lack of capacity for the purposes of s.48 and made orders accordingly. The proceedings could not be reconfigured under s.21A MCA and AH was not entitled to non-means tested Legal Aid [56]. HHJ Burrows expressed the view that ‘where a court appointed expert reports on a case in which capacity is in dispute, and that expert concludes that capacity to make decisions as to residence and care are absent, that should be sufficient for the mental capacity requirement of Schedule A1 to be met without more.’[57] This position, however, was recognised to be unenforceable [58].

HHJ Burrows explored what the supervisory body can do when an assessor concludes that P has capacity.

[60]…The assessors are, of course, independent of the supervisory body. That is necessary in order to make the process compliant with Article 5 of the ECHR. It would be unfortunate as well as very costly, if the supervisory body had to judicially review one of their assessors because that assessor reached a view that conflicted with a decision of the Court (see analogously, albeit within the context of the Mental Health Act where a Responsible Clinician challenged his own Hospital Managers in respect of the discharge of a patient: South Staffordshire and Shropshire Healthcare NHS Foundation Trust & Whitworth v The Hospital Managers of St Georges Hospital [2016] EWHC 1196 (Admin).)

[61] It would be sensible, it seems to me, if the Local Authority as supervisory body agrees that P lacks capacity, that the author of the report ought to carry out the assessment for the purposes of the DOLS, if that is possible. Alternatively, I would expect any mental health or mental capacity assessor to have access to the report and any judgment such as this that has dealt with the issue of capacity.

HHJ Burrows gave permission for the contents of Dr Camden-Smith’s report and any judgment to be disclosed to any mental health or capacity assessor in respect of AH. Although not mentioned in the judgment, an option open to the supervisory body would have been to use that report as an equivalent assessment for the purposes of a standard authorisation.