Korsakoff’s syndrome, alcoholism and capacity

The Court of Protection in X v A Local Authority 2014  were considering the case of a man who had Korsakoff’s syndrome, this is a disease of the brain almost exclusively seen in very serious alcoholics and it is where the drinking itself has damaged the structure of the brain, one of the manifestations being the difficulty in forming new memories.  This particular man, X, had been a lawyer prior to his problems, and had been a bright, intelligent and articulate man  (despite this, he chose to become a lawyer…)

http://www.bailii.org/ew/cases/EWCOP/2014/B25.html

In this particular case, the issue was whether the Court of Protection should decide that X lacked capacity to make decisions for himself, including about where he was to live, and to go on to make decisions for him in his best interests. One of the concerns was that if X were allowed to make his own decisions, he would fall back into alcoholism and cause himself further damage.

There was a dispute between professionals as to whether X lacked capacity

I move to section 3, the so-called functional test which, in my judgment, is the key point in this case. Section 3(1) says this: “For the purpose 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 that decision, whether by talking, using sign language or any other means.” So the test is decision specific and time specific. So if I am to authorise X’s further detention, in other words in effect his deprivation of liberty, then he must currently lack capacity to make a decision as to residence, et cetera.
 

Now the issue is not entirely straight forward with this case. Sadly, his current treating psychiatric consultant, Dr. Al-Kaissy, is absent abroad and so I was unable to hear from her. I have seen, however, an undated mental capacity assessment by her and taken on board what she says in that she is quite sure that he lacks the appropriate executive functioning capacity. It is her view in that report, and also that of the social worker, who has known him for the duration of his illness, Ms Kingdom, that he continues to lack capacity; or rather I do not have an updated report from Dr. Al-Kaissy but the social worker remains of the view that he continues to lack that capacity. By contrast, Dr. Loosemore does not accept that he now lacks the appropriate capacity, a view supported by Lucy Bright, the social worker who, together with Dr. Loosemore, assessed him for deprivation of liberty purposes. I did not hear from Miss Bright but nonetheless I have read what she has to say and I notice that she said that he continues to have a poor short term memory and that he needs prompting in connection with washing and dressing. But she made a number of observations which I shall read. At D108 in the bundle she said this: “Both Dr. Loosemore and I had a lengthy interview with X and as a result of this interview Dr. Loosemore concluded that X has capacity to consent to his care and treatment at the V Care Home. I agree with this finding and, whilst I am aware that [X’s] capacity may fluctuate, it would be difficult to conclude that he lacks capacity from the information he gave and understanding that he displayed during the interview.” She continued to say this: “Given the conclusion reached by Dr. Loosemore that [X] has capacity to consent to his accommodation, care and treatment at the V Care Centre, he is not eligible for the Deprivation of Liberty safeguards and so this process now stops. I am aware others may challenge this finding and, given the variable way in which [X] can present, it may be worth a second opinion being sought, but the Mental Capacity Act is clear that someone’s capacity should be assessed when they are at their best”, and she goes on: “I would suggest that a way forward would be the care providers to draw up a voluntary contract with [X] about his length of stay at the unit including any support that they assess he needs accessing the community and how it can be provided with [X]’s consent. Efforts also need to be made swiftly to identify [X]’s long term accommodation needs and a suitable care package when he moves on from the rehabilitation unit.”
 

Dr. Loosemore reported in the same way and in his conclusion at D86 he says this: “I thought that Mr. [X] had capacity to decide on receiving care and treatment at the V Care Home. Although he did not like the experience of residing in the care home he is willing to stay for a period of assessment. If he were to be formally deprived of his liberty I think he would become distressed and aggrieved.” His conclusion was very plain that X does not lack capacity with regard to residence, et cetera.
 

In the course of oral evidence on Wednesday Dr. Loosemore firmly held to the view that X does not meet the statutory test, the functional test, under section 3 of the Act. He had seen X, he thought, for an hour, though Miss Bright wrote it was in fact 90 minutes. He by coincidence knew him when he was sectioned under section 2 of the Mental Health Act in December 2013 and certainly then he was very unwell. He conceded that X’s capacity could fluctuate, but he observed, as does Miss Bright, that he needs to look at him at his best and he remained of the view throughout cross-examination that X does not lack capacity to make decisions as to residence, et cetera. He did not accept that, because there was a risk that X would resume drinking, that implied a lack of capacity. He had not spoken to the treating psychiatrist, Dr. Al-Kaissy, nor to the key social worker, in the course of forming his independent opinion, nor had he explicitly in the course of the document he completed referred to the factors set out in section 3 of the 2005 Act, but he nonetheless was of the view that X had appropriate understanding and that he can retain information as necessary, and he had completed his analysis on that basis with that conclusion. Although the completed document he had to fill in for the assessment purposes does not permit detailed analysis, nonetheless he was of the view that section 3 does not apply in this case. He conceded of course he did not refer to the section in his report but pointed out that the form F6 does not provide for the section 3 criteria to be referred to. He was satisfied that X can give an account of where he is residing, what his role there and what the benefits of residing there are. X knew he was not about to leave but averred that he did not get on well with the other residents. He was sure that X’s mental state was improving and that he did not require detention at the V Care Home. He agreed that X had seemed reluctant to give up all drinking and enjoys a social drink, as he indicated also in evidence to me; but he also had said that he would abstain entirely if he had to. He conceded that it is always difficult to gauge with those who drink to excess as to the veracity of their promises. People who have a drinking problem make specious promises, he noted. He had not seen the current brief assessment of Dr. Al-Kaissy to which I have referred but he remained of the view that X now has capacity. He accepted of course Dr. Al-Kaissy has seen X regularly but it was his view that he was dealing now with a man very changed from the poor state in which he was presenting on 19th December of last year. Moreover, X had told him he was willing to stay voluntarily for a while and his view is that X is no longer disorientated, confused as to the date, et cetera, and, although he is a little repetitive, he is no longer rambling in his presentation. He described X as not fitting in with the rest of the ward but described him as rational and reasonable, logical in his thought processes. He had now the capacity to reflect on how he was and he agreed with the typed assessment of Miss Bright when considering the standard authorisation. He was shown the report of a neuropsychologist for 7th May but this did not alter his conclusions. I have to say that I found Dr. Loosemore to be a very persuasive witness. His view that X now has capacity was compelling.
 

Ms Andrea Kingdom is a very experienced and very concerned social worker. I have read her statement of 21st May which of course has been overtaken by events. Contrary to Dr. Loosemore’s opinion she thought X continues to lack capacity. There is no doubt of course that she knows him well and is very concerned about him, and I entirely accept that in law I am quite able to reject Dr. Loosemore’s opinion and find that X lacks capacity for the purposes of section 48 so I can make an interim order. She still feels that X has difficulty in retaining information and she was concerned, because he is a highly intelligent man, that he is able to mask his cognitive difficulties. She felt he had unrealistic expectations as to the future, constantly saying he hopes to live again with his first wife and even remarry her and live with her. She was concerned too because he has no real idea as to where he is going to live upon discharge. She is concerned because when he had had leave in the past he has sought to drink on one occasion and then been found standing dangerously near a busy trunk road. On an occasion, when he went out to A House, he sought to obtain alcohol and kept asking for it. She felt Dr. Loosemore had seen X but briefly and that it is after about two hours with him that his present difficulties continue to manifest themselves. She did not accept that X’s insight into his condition has appropriately increased and knew that he would not give up drinking. She was quite worried about him damaging himself. I listened very carefully to Ms Kingdom. I thought her evidence was very kindly and well intentioned. I make no criticisms of her professionally. I accept that there are many matters to be concerned about with regard to X but it is my view that he has shown rather more insight than she attributes to him. Of course she is used to patients who revert to mental illness and difficulties, but I do not accept that she has established the section 3 criteria to my reasonable satisfaction.
 

X gave evidence unsworn at the suggestion of all the advocates in the case. In the course of his brief evidence to me he indicated, first, a wish to live with and, if possible, remarry his first wife. He told me she has been in regular contact with him since he has been hospitalised and, to his surprise and gratification, he thinks their relationship is in the course of being re-kindled, though he does not wish to rush things. He showed a tendency to repeat himself. He told me the information about his ex-first wife four times during the course of his evidence. He told me that he had decided he wishes to stay in the V Care Home until he can obtain either a home with his first wife or rented property and he would need a garden, he said. I felt this was a somewhat incomplete plan but, in fairness to him, he then went on to say that he would make contact with agents to try and find a place to live. He told me he is separated from P, his second wife, and told me that his excessive drinking and then hospitalisation and sectioning had been a “bitter experience”. He was unable to explain why he was found standing by the main road, why he bought alcohol on leave and why he had sought alcohol when he visited A House. Now, I entirely accept that his plans for a reconciliation with his first wife and finding a home with her are vague and perhaps overly optimistic; but for all of that there was a degree of realism in what he said for he said he could not leave the home yet and would stay there till he found a place to go. His concept of his needs was plainly a little vague and I had to put to him that he would need visits from a C.P.N. and social workers to assist him to plan for his life. But I was left with the impression that this is not a man who is masking his illness or his cognitive capacity. His evidence, in my judgment, is more than that of just a man used to presenting a case in court and putting it simply in the best light for its own sake.

These are difficult issues, and even perhaps philosophically difficult. Does a person who is an alcoholic have capacity to make proper informed decisions about whether or not to drink? Are they balancing up the pros and cons when considering it? Or are they acting under the influence of an addiction or craving more powerful than their will?  Of course, we don’t as a society try to declare that all alcoholics lack capacity to make decisions for themselves, but in that narrow issue – “Can they decide whether to eschew alcohol?”  it is arguable that they don’t have capacity.

But for the purposes of the declaration sought, the capacity issues were much broader, and in those regards, the Court was satisfied that X did have capacity – he might go on to exercise his autonomy badly, he might make poor choices, he might put himself in harms way, but if he has that autonomy, he has the right to make the decisions for himself and live with the consequences.

I have carefully and, I hope, sympathetically borne in mind the findings and concerns of Ms. Kingdom. 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.

X now has capacity to make decisions as to residence, care and medical treatment and that has been amply demonstrated in the case. Even if he has other problems he can reflect and logically reason, and is much improved from the man he was last December. That does not mean he will not relapse. It does not mean that he will not be foolish enough to resume drinking but, in my judgment, in all the circumstances it would be inappropriate to make a declaration under section 48 and in those circumstances, in the absence of a standard authorisation, his compulsory detention comes to an end.