Newcastle City Council v TP (by her litigation friend The Official Solicitor) (1st Respondent) FW (Capacity of TP) (2nd Respondent)
| Jurisdiction | England & Wales |
| Judge | Her Honour Judge Moir |
| Judgment Date | 21 December 2016 |
| Docket Number | Case No. 12800293 |
| Court | Court of Protection |
| Date | 21 December 2016 |
[2016] EWCOP B4
IN THE COURT OF PROTECTION
SITTING AT NEWCASTLE-UPON-TYNE
The Law Courts
The Quayside
Newcastle-Upon-Tyne
NE1 3LA
Her Honour Judge Moir
Sitting as a Nominated Judge of the Court of Protection
Case No. 12800293
In the matter of:
and
Counsel for the Applicant Local Authority: Mr McCormack
Counsel for the Official Solicitor: Ms Gardner
Solicitor for the First Respondent Cartwright King Solicitors
The Second Respondent did not attend and was not represented
JUDGMENT APPROVED BY THE COURT
I heard oral evidence yesterday from Dr Annette Hughes in relation to determining whether or not TP has capacity to make decisions or conduct this litigation. I have also had regard to the written documentation provided by Dr M (TP's GP), and Michael Beck, a social worker who was asked to complete an assessment in relation to a request for a standard authorisation.
The report provided Dr M is dated 10 th March 2016 and reaches the conclusion that TP did not have capacity to conduct the proceedings nor to decide about her community care and support needs. He expressed the belief that TP does not have the capacity to manage her own finances. He referred to TP's learning disability which he emphasised had not been formally diagnosed at that stage. Michael Beck in his report dated 9 th August 2016 considered TP lacked capacity to make decisions in relation to her accommodation in the care home where she is placed or in relation to her care or treatment.
The court made an interim order on 2 nd February 2016 declaring that pursuant to section 48 of the Mental Capacity Act 2005, the court had reason to believe that she lacked capacity to make litigate, to make decisions about social care and medical needs, about contact with others, and to manage her finances. The interim declarations have continued to date and have further included a declaration that TP lacks capacity to make decisions about where she should reside.
The court is now required to determine capacity on a final basis. It is for the applicant to prove, on the balance of probability, that TP lacks capacity in the relevant areas. Again, FW has not attended this hearing despite being aware that the court is considering the issues in relation to TP and providing this morning a further letter to the court.
The local authority did not seek to question Dr Hughes, but Ms Gardner on behalf of TP asked relevant questions in relation to the conclusions which Dr Hughes expressed in her reports. Dr Hughes prepared six reports dealing with various aspects of TP's abilities. Dr Hughes has seen TP on seven occasions between 17 th May 2016 and 17 th November 2016. Three of her reports are prepared in respect of assessment of capacity. Three of her reports are to comment upon best interests. Thus, Dr Hughes has had the opportunity to meet, talk to, and assess TP over a period of six months and has been able to form an overview of both TP's capabilities and needs from observation over a significant period of time. The court has been able to receive a professional view from someone whom I am satisfied has come to know TP, in Mr McCormack's words, "pretty well."
I have been referred to LBX v K & Ors [2013] EWHC 3230 (Fam) decided by Mrs Justice Theis on 19 th June 2013 in considering the legal framework in respect of the issue of capacity. The basic starting point, however, is set out very clearly in the opening sections of the Mental Capacity Act 2005. The following principles apply for the purposes of this Act:
"(2) A person must be assumed to have capacity unless it is established that he lacks capacity.
(3) 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.
(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
(5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
(6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action."
Section 2 deals with the preliminary position in relation to capacity:
"(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain."
Section 3 deals with the inability to make decisions and at section 3(1) it is set out:
"(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)."
At paragraph (3), it is set out that:
"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.
At paragraph (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."
At paragraph 13 in LBX, Mrs Justice Theis refers to the Code of Practice and states:
"In the Code of Practice that operates under the umbrella of the 2005 Act in relation to s.3, para. 4.16 states relevant information includes 'the nature of the decision', 'the reason why the decision is needed' and 'the likely effects of deciding one way or another, or making no decision at all'. As I have said, the burden of proof in relation to capacity is on the local authority and the required standard is the balance of probability."
Mrs Justice Theis went on to opine at paragraph 14:
"In relation to capacity, the cases state that there is little to add to the clear words of the statute."
However, while I bear this in mind, I remind myself of certain matters clearly set out within the authorities and statute. A person must be assumed to have capacity unless it is established that they lack capacity. If the evidence before me does not enable me to reach a decision on the balance of probability that the presumption is displaced, then this court has no further role to play as far as TP is concerned. The determination of capacity must always be decision-specific and each particular aspect of decision-making must be considered separately.
Mr Justice Peter Jackson, in the Heart of England NHS Foundation Trust v JB [2014] EWHC 342 (COP), at paragraph 7 made clear that a person is not to be treated as unable to make a decision merely because he or she makes a decision that is unwise. It is important in this regard to recall the words of Peter Jackson J in Heart of England:
"The temptation to base a judgement of a person's capacity upon whether they seem to have made a good or bad decision, and in particular upon whether they have accepted or rejected medical advice, is absolutely to be avoided. That would be to put the cart before the horse or, expressed another way, to allow the tail of welfare to wag the dog of capacity. Any tendency in this direction risks infringing the rights of that group of persons who, though vulnerable, are capable of making their own decisions. Many who suffer from mental illness are well able to make decisions about their medical treatment, and it is important not to make unjustified assumptions to the contrary."
Professionals, as well as the court, must not conflate a capacity assessment with a best interests assessment. At paragraph 34, MacDonald J in King's College Hospital NHS Foundation Trust v C and Another [2015] EWCOP 80, reminds the court that:
"Within this context, it is important to remember that for a person to be found to lack capacity there must be a causal connection between being unable to make a decision by reason of one or more of the functional elements set out in s 3(1) of the Act and the 'impairment of, or a disturbance in the functioning of, the mind or brain' required by s 2(1) of the Act."
Finally, in relation to considering the generality of the law which I must apply, MacDonald J in the King's College Hospital case reminds me that it is for the court to make the decision upon capacity. Cleary, the evidence of professionals is likely to be determinative of the issue of whether or not there is impairment of the mind for the purposes of section 2(1), but it is for the court to consider all the relevant evidence which has been placed before it before reaching a decision upon capacity.
Ms Gardner in her position statement draws my attention to the fact that Dr Hughes has given evidence and is relied upon as a witness of fact as the relevant professional in offering a clinical opinion as to TP's capacity and also in relation to TP's bests interests. That, in those circumstances, the temptation to conflate a capacity assessment with a best interests assessment must be a live risk and also when a clinician has worked with the patient, TP, and there is a good professional relationship, there must be also a risk as set out at paragraph 39 in the King's College case where MacDonald J...
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