London Borough of Tower Hamlets v PB (by his litigation friend, the Official Solicitor)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hayden |
| Judgment Date | 03 July 2020 |
| Neutral Citation | [2020] EWCOP 34 |
| Docket Number | Case No: 13444937 |
| Date | 03 July 2020 |
| Court | Court of Protection |
[2020] EWCOP 34
IN THE COURT OF PROTECTION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Hayden
VICE PRESIDENT OF THE COURT OF PROTECTION
Case No: 13444937
Ms Catherine Rowlands (instructed by the London Borough of Tower Hamlets) for the Applicant
Ms Fenella Morris QC & Mr Peter Mant (instructed by Bindmans LLP) for PB
Hearing dates: 12 th March 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mr Justice Hayden
The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the names and addresses of the parties and the protected person must not be published. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
This application concerns PB who is a 52-year-old man with a lengthy history of serious alcohol misuse. He has developed alcohol related brain damage and is assessed as meeting the criteria for a ‘dissocial personality disorder’. Unfortunately, PB has a range of physical comorbidities, including Chronic Obstructive Pulmonary Disease (COPD), Hepatitis C and HIV.
On 17 th January 2020 this application was listed before DJ Eldergill. At that hearing it was considered that the case presented a number of complex issues which might have wider resonance. Most immediately, there are two central issues for the Court to determine, namely:
i. Whether PB has capacity to conduct this litigation and/or make decisions relating to where he lives and the care he receives;
ii. If PB lacks capacity whether his current care and accommodation provision are in his best interests (in this context it is important to highlight that the restrictions with these arrangements are aimed at preventing PB from gaining access to alcohol, which he strenuously resents).
Manifestly, the resolution of these issues turns on their particular facts. District Judge Eldergill and the advocates before him considered that the issues presented by this case provided an opportunity for the Court to look more widely at the scope and ambit of the restrictions placed on those who are dependent on alcohol and have lost capacity in key areas of decision making. The order identifies the following:
i. How the Court should approach the assessment of capacity of individuals who are alcohol dependent;
ii. Whether 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.
The circumstances presented by this case are not uncommon and engage, paradigmatically, some of the fundamental principles which underpin the twin pillars of the MCA i.e. mental capacity and best interests.
The MCA provides a specific statutory definition of mental capacity which is termed to be “decision specific”, predicated on a “functional approach”, evaluated in the framework of a “diagnostic threshold”. Thus, 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. Fundamentally, the Act emphasises the right of the individual, in exercising his or her personal autonomy, to make bad decisions even extending to those with potentially catastrophic consequences (see: Barnsley Hospital NHS Foundation Trust v MSP [2020] EWCOP 26).
It is necessary here to emphasise the cardinal principles of the Act. The presumption of capacity, Section 1(2), is the bench mark for decision makers in this sphere. To my mind it is every bit as important as the presumption of innocence in a criminal trial. The Act reinforces this by requiring that a person is not to be treated as unable to make a decision unless “all practicable steps to help him to do so have been taken without success”. The scope of these unambiguous provisions requires fully to be recognised and vigilantly guarded. The philosophy informing the legal framework illuminates the point that this case highlights, namely ‘a person is not to be treated as unable to make a decision merely because he makes an unwise decision’. This statutory imperative reflected extensive common law jurisprudence, prior to the Mental Capacity Act, recognising that the law does not insist that a person behaves “in such a manner as to deserve approbation from the prudent, the wise or the good”: Bird v Luckie (1850) 8 Hare 301. It is the ability to take the decision, not the outcome of it which is in focus: CC v KK and STCC [2012] EWHC 2136 (COP); Kings College Hospital NHS Trust v C & V [2015] EWCOP 80.
McFarlane LJ made the following observation in PC v City of York [2013] EWCA Civ 478 at [54], which strikes me as capturing and distilling the true essence of this principle:
“there is a space between an unwise decision and one which an individual does not have the mental capacity to take and … it is important to respect that space, and to ensure that it is preserved, for it is within that space that an individual's autonomy operates”.
It is important to identify and define the issue in question, see: PC v NC and City of York Council [2013] EWCA Civ 478 at [35], there the Court of Appeal stated that:
“The determination of capacity under MCA 2005, Part 1 is decision specific…. all decisions, whatever their nature, fall to be evaluated within the straightforward and clear structure of MCA 2005, ss 1 to 3 which requires the court to have regard to ‘a matter’ requiring ‘a decision’. There is neither need nor justification for the plain words of the statute to be embellished.”
Equally as important is the responsibility, properly to evaluate the relevant information most likely to inform the decision in focus. In LBX v K, L and M [2013] EWHC 3230 (Fam) at [48], Theis J identified the following information as relevant to a person's decision about their care: “what areas he needs support with; what sort of support he needs; who will be providing him with support; what would happen if he did not have any support or he refused it; that carers might not always treat him properly and that he can complain if he is not happy about his care.”
It is important to set out Section 3 MCA, which provides:
“3. Inability to make decisions
(1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable—
(a) to understand the information relevant to the decision,
(b) to retain that information,
(c) to use or weigh that information as part of the process of making the decision, or
(d) to communicate his decision (whether by talking, using sign language or any other means).
(2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).
(3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.
(4) The information relevant to a decision includes information about the reasonably foreseeable consequences of—
(a) deciding one way or another, or
(b) failing to make the decision.”
Paragraph 4.30 of the Code of Practice also requires to be considered:
“Information about decisions the person has made based on a lack of understanding of risks or inability to weigh up the information can form part of a capacity assessment – particularly if someone repeatedly makes decisions that put them at risk or result in harm to them or someone else.”
Intrinsic to assessing capacitous decision taking is the ability to weigh and sift the relevant information. In PCT v P [2011] 1 F.L.R. 287, AH and The Local Authority [2009] COPLR Con Vol 956 at [35] Hedley J, with characteristic conciseness, analysed the capacity to use or weigh information thus:
“the capacity actually to engage in the decision-making process itself and to be able to see the various parts of the argument and to relate one to another”.
It is not necessary for a person to use or weigh every detail of the respective options available to them to demonstrate capacity, the salient factors are key: see CC v KK and STCC [2012] EWHC 2136 (COP) at [69]. Importantly, it must always be recognised that though a person may be unable to use or weigh some of the information objectively relevant to the decision in question, they may nonetheless be able to use or weigh other elements sufficiently well so as, ultimately, to be able to make a capacitous decision, see: Re SB [2013] EWHC 1417 (COP). It is not necessary to have every piece of the jigsaw to see the overall picture.
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...
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