A race through KK v STCC 2012 – on deprivation of liberty, capacity and Court of Protection.
The judgment is on Baiili, here:- http://www.bailii.org/ew/cases/EWHC/COP/2012/2136.html
It is a High Court decision, dealing with an 82 year old woman, KK, who had found herself in a nursing home STCC. It was, by all accounts a good nursing home, and meeting her needs. But KK wanted to go back to her home. The case obviously therefore grapples with interesting issues of capacity and where the State can or should assume responsibility for making decisions about a person’s life.
KK developed Parkinson’s disease and also had an admission to hospital following a fall. This left her disoriented and muddled and a psychiatrist who assessed her decided that she lacked capacity to make decisions. A best interests meeting (and I can already hear many of you saying “best interests? whose best interests?”) decided that she could not return home and should move to a nursing home. She made some improvements there and went back to her bungalow. There was an out of hours emergency support line, and the LA report KK having used it over a thousand times in a six month period, leading them to review whether she could remain at home.
(This has interesting echoes of the Supreme Court case involving the woman who was incontinent at night and wanted workers to help get her out of bed, but was instead given effectively adult nappies – leading to the debate about whether provision of social care services ought to involve a duty of dignity, as opposed to just meeting the needs in the most cost-effective way.
R (on the application of ELAINE MCDONALD) v KENSINGTON & CHELSEA ROYAL LONDON BOROUGH COUNCIL (2011) UKSC 33 – it was one where the Court were split, and fervently so, but finally ruled that this method of meeting her needs did not violate her human rights. Frankly, although the budgetary implications of the decision going the other way, and there being a right to be treated in a dignified way were enshrined in law would be a massive change, I wish personally that the decision had gone the other way. I don’t feel comfortable with the idea that this is not a breach of human rights – and this is something that the mainstream press completely overlooked in all their human rights bashing – denying people in their old age proper humane treatment is far worse than all the ‘not deported because he had a cat’ nonsense)
The STCC made a DOLS decision that KK was being deprived of her liberty, and followed the correct legal process. The case found itself in Court and to be challenged.
There is a nice summary of the law on capacity, which I’ll quote in full, as it is a good starting point for grappling with these issues
Capacity – the law
- A person may be deprived of their liberty under the DOLS if the six qualifying requirements under Schedule A1 of the 2005 Act are satisfied. In those circumstances, the supervisory body, (in this case CC), may, on the application of the managing authority (in this case STCC), issue a standard authorisation for the deprivation of liberty, and, prior to the determination of an application for a standard authorisation, the managing authority may issue an urgent authorisation. The six qualifying requirements include, under paragraph 12(1)(c) of the schedule, the “mental capacity requirement”. Paragraph 15 of the schedule provides that: “the relevant person meets the mental capacity requirement if he lacks capacity in relation to the question of whether or not he should be accommodated in the relevant… care home for the purpose of being given the relevant care or treatment”.
- When a standard authorisation has been made by a supervisory body, s. 21A(2) empowers the Court of Protection to determine any questions relating to, inter alia, whether P meets one or more of the qualifying requirements. In particular, once the court determines the question, it may make an order varying or terminating the standard authorisation: s. 21A(3)(a). But once an application is made to the Court under s. 21A, the Court’s powers are not confined simply to determining that question. Once its jurisdiction is invoked, the court has a discretionary power under s. 15 to make declarations as to (a) whether a person has or lacks capacity to make a decision specified in the declaration; (b) whether a person has or lacks capacity to make decisions on such matters as are described in the declaration, and (c) the lawfulness or otherwise of any act done, or yet to be done, in relation to that person. Where P lacks capacity, the court has wide powers under s. 16 to make decisions on P’s behalf in relation to matters concerning his personal welfare or property or affairs.
- First, a person must be assumed to have capacity unless it is established that she lacks capacity: s. 1(2). The burden of proof therefore lies on the party asserting that P does not have capacity. In this case, therefore, the burden of proof lies on CC to prove that KK lacks capacity. The standard of proof is the balance of probabilities: s. 2(4).
- Secondly, the Act provides that 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 disturbance in the functioning of, the mind or brain: s. 2(1). Thus the test for capacity involves two stages. The first stage, sometimes called the “diagnostic test”, is whether the person has such an impairment or disturbance. The second stage, sometimes known as the “functional test”, is whether the impairment or disturbance renders the person unable to make the decision. S. 3(1) provides that, for the purposes of s. 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. Important guidance as to the assessment of capacity generally, and the interpretation and application of the four components of the functional test in particular, is set out in section 4 of the Mental Capacity Act 2005 Code of Practice.
- Third, capacity is both issue-specific and time specific. A person may have capacity in respect of certain matters but not in relation to other matters. Equally, a person may have capacity at one time and not at another. The question is whether at the date on which the court is considering the question whether the person lacks capacity in question, in this case to make decisions as to her residence and care.
- Fourthly, a person is not to be treated as unable to make a decision unless all practicable steps to help her to do so have been taken without success: s. 1(3). The Code of Practice stresses that “it is important not to assess someone’s understanding before they have been given relevant information about a decision” (para 4.16). “Relevant information” is said in paragraph 4.19 to include “what the likely consequences of a decision would be (the possible effects of deciding one way or another) – and also the likely consequences of making no decision at all”. Paragraph 4.46 of the Code of Practice adds that “it is important to assess people when they are in the best state to make the decision, if possible”.
- Fifth, I bear in mind and adopt the important observations of Macur J in LBL v RYJ  EWHC 2664 (Fam) (at paragraph 24), that “it is not necessary for the person to comprehend every detail of the issue … it is not always necessary for a person to comprehend all peripheral detail .…” At paragraph 58 of the judgment, Macur J identified the question as being whether the person under review can “comprehend and weigh the salient details relevant to the decision to be made”. A further point – to my mind of particular importance in the present case – was also made by Macur J at paragraph 24 in that judgment: “…it is recognised that different individuals may give different weight to different factors.”
- unwise decisions … and
- decisions based on a lack of understanding of risks or inability to weigh up the information about a decision.
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.”
- Finally, in assessing the question of capacity, the court must consider all the relevant evidence. Clearly, the opinion of an independently-instructed expert will be likely to be of very considerable importance, but in addition the court in these cases will invariably have evidence from other clinicians and professionals who have experience of treating and working with P, the subject of the proceedings. Often there will be evidence from family and friends of P. Occasionally, as in this case, there will be direct evidence from P herself. In A County Council v KD and L  EWHC 144 (Fam)  1 FLR 851 at paras 39 and 44, Charles J observed “it is important to remember (i) that the roles of the court and the expert are distinct and (ii) it is the court that is in the position to weigh the expert evidence against its findings on the other evidence… the judge must always remember that he or she is the person who makes the final decision”. That case concerned an application for a care order under Part IV of the Children Act 1989, but the principles plainly apply to proceedings under the Mental Capacity Act in general and the assessment of the functional test under s. 2 in particular. In other words, when assessing the ability of P to (a) understand the information relevant to the decision (b) retain that information, and (c) use or weigh that information as part of the process of making the decision, the court must consider all the evidence, not merely the views of the independent expert. In many cases, perhaps most cases, the opinion of the expert will be confirmed by the other evidence, but inevitably there will be cases where the court reaches a different conclusion. When taking evidence from P herself, the court must plainly be careful about assessing the capacity to understand, retain and use and weigh up information, but, whilst acknowledging the important role for expert evidence, the assessment is ultimately a matter for the court.
- There is a further point, to which I alluded in an earlier decision in PH v A Local Authority, Z Ltd and R  EWHC 1704 (Fam). In assessing the evidence, the court must be aware of the difficulties which may arise as a result of the close professional relationship between the clinicians and professionals treating and working with, P. In PH, I drew attention to a potential risk, identified by Ryder J in Oldham MBC v GW and PW  EWHC136 (Fam)  2 FLR 597, another case brought under Part IV of the Children Act 1989, that the professionals and the court may be unduly influenced by what Ryder J called the “child protection imperative”, meaning “the need to protect a vulnerable child” that, for perfectly understandable reasons, may influence the thinking of professionals involved in caring for the child. Equally, in cases of vulnerable adults, there is a risk that all professionals involved with treating and helping that person – including, of course, a judge in the Court of Protection – may feel drawn towards an outcome that is more protective of the adult and thus, in certain circumstances, fail to carry out an assessment of capacity that is detached and objective. On the other hand, the court must be equally careful not to be influenced by sympathy for a person’s wholly understandable wish to return home.
Very nicely put, in my humble opinion, and it identifies one of the main pitfalls in this area – that of the State taking a very paternalistic approach of ‘we know best’.
KK gave evidence herself in Court, and the summary again is set out in full – there’s one particularly telling line at the end, when she was asked what would happen if at home in her bungalow, she were to fall and be unable to get up. She said, that if she fell on the floor and died on the floor, she would rather die in her own home than live somewhere else.
- In her oral evidence KK repeated that she wanted to live in her bungalow. She said: “Everything I’ve got is in that bungalow. My whole life. Everything there is familiar to me. I’ve got my hobbies. I’ve got all sorts of things. I am doing a model village. It is in my bedroom in the bungalow.” I asked KK how she got to her bungalow from the court. In reply, she correctly said that you have to go over a bridge, but gave the wrong name for the bridge. When I asked how long it would take to get there, she immediately replied “it depends on the traffic – a good half hour”. She told me that she could see everything in the village from her bungalow window – the church and the tower, the whole village. She collects porcelain dolls. She goes to the bungalow every day and spends several hours there before returning to STCC for the afternoon where she tends to sit in her room. Taxis take her to and from the bungalow. She has a special taxi, able to take the wheelchair. She now goes home three hours everyday.
“When left at my bungalow with food I have struggled in being able to reach the food that is left on my table as my table has been filled with lots of different things and often the food gets pushed nearer the back. I have also struggled to drink some of the drinks left out as it has been difficult lifting the drink and moving the straw as my right hand has a tremor. If I was to return to my bungalow I would look forward to planning my meals and writing a shopping list with carers. The cooks at STCC try hard to make meals which I will enjoy, whilst I appreciate their efforts I generally do not like what they cook. I drink “Ensure” nutrition drinks to supplement my diet. I like the taste of these drinks and have asked to be put back on to them. … I get frustrated that STCC’s staff mash my food up and give me a spoon to eat it with. I do not need my food mashed up or a spoon to eat with. I do not think that my diet would be any worse if I returned to the bungalow as I would have meals of choice prepared for me and carers present to assist me with eating.”
- I asked her about her food intake during her oral evidence. She said that she could have what she liked for breakfast but usually just had a glass of milk. She repeated in oral evidence that the food was not very good at STCC – “like baby food”. She said that her favourite food was salad. She said that she could make a cup of tea for herself but she does not do so because her legs “are not too good”.
“I have considered what level of care that I would need whilst at home. I acknowledge that I need assistance in washing including myself, toileting, preparation of food and day-today chores. I anticipate that this could be adequately provided for with four, one hour care visits a day. It may be considered that I need an increased package. I am willing to discuss a suitable package with care professionals. I get on well with my social worker JL and respect his view and opinions. I do not believe that I would need care overnight. Usually I go to bed at 1900hrs and wake at 6 o’clock. Prior to my transfer to STCC I was put to bed by carers at approximately 1900hrs and was visited again at approximately 6 o’clock at which time they would wash and dress me and put me in my recliner chair. This worked well. This routine is similar to that which is in place at STCC.”
In her oral evidence, KK repeated that she would need four visits a day from two carers.
- In cross-examination Mr. Dooley asked KK about the cases when she had declined to go on the home visits. She said that on a couple of occasions she had not fancied going back because of the weather. There is a long path up to the bungalow. She was concerned that it might be slippery and that she might be blown over in her wheelchair.
- In her statement, KK acknowledged that whilst at the bungalow she used the lifeline alarm excessively. She adds: “I understand why this was inappropriate and consider my behaviour in using it so much to have been silly.” In oral evidence, she reiterated that she accepted that she had been using the lifeline in a wrong way. She said “I was nervous”. She added, however, “but I have learnt my lesson.” She was asked what would happen if she fell over. She replied: “If I die on the floor, I die on the floor. I’d rather die in my own bungalow, I really would.”
The opinion of all of the professionals was that KK did not have capacity to make decisions – however, the Court rightly identified that it is a factual matter that falls to be determined by the Court and those opinions (even if significant weight must attach) are not determinative.
The Court (and I find myself cheering a little as I type this) determined that KK did have capacity, and that therefore the State did not have the power to make her stay in the nursing home if she did not wish to do so.
- When considering KK’s capacity to weigh up the options for her future residence, I adopt the approach of Macur J in LBJ v RYJ (supra), namely that it is not necessary for a person to demonstrate a capacity to understand and weigh up every detail of the respective options, but merely the salient factors. In this case, KK may lack the capacity to understand and weigh up every nuance or detail. In my judgment, however, she does understand the salient features, and I do not agree that her understanding is “superficial”. She understands that she needs carers four times a day and that is dependent on them for supporting all activities in daily living. She understands that she needs to eat and drink, although she has views about what she likes and dislikes, and sometimes needs to be prompted. She understands that she may be lonely at home and that it would not be appropriate to use the lifeline merely to have a chat with someone. She understands that if she is on her own at night there may be a greater risk to her physical safety.
- In weighing up the options, she is taking account of her needs and her vulnerabilities. On the other side of the scales, however, there is the immeasurable benefit of being in her own home. There is, truly, no place like home, and the emotional strength and succour which an elderly person derives from being at home, surrounded by familiar reminders of past life, must not be underestimated. When KK speaks disparagingly of the food in the nursing home, she is expressing a reasonable preference for the personalised care that she receives at home. When she talks of being disturbed by the noise from a distressed resident in an adjoining room, she is reasonably contrasting it with the peace and quiet of her own home.
- The local authority has attached considerable importance to KK’s excessive use of the lifeline in the first half of 2011. I infer that this was an important factor in the decision to move her back to STCC. It remains a significant factor in the professionals’ assessment of her capacity. To my mind, however, the local authority has not demonstrated that it has fully considered ways in which this issue could be addressed, for example by written notes or reminders, or even by employing night sitters in the initial stage of a return home. I also note that during KK’s daily home visits it has not been reported that she has used the telephone in ways similar to her previous use of the lifeline, although in the latter stages of her period at home prior to admission to care in July 2011 she was apparently using the lifeline excessively during the day as well as at night. Ultimately, however, I am not persuaded that calling an emergency service because one feels the need to speak to someone in the middle of the night, without fully understanding that one has that need or the full implications of making the call, is indicative of a lack of capacity to decide where one lives.
- Another factor which features strongly in the local authority’s thinking is KK’s failure to eat and drink. Here again, however, I conclude that more could be done to address this issue by written notes and reminders, and by paying greater attention to KK’s likes and dislikes. KK is not the only older person who is fussy about what she eats and drinks.
- I do not consider the fact that KK needs to be helped about overusing the lifeline, or reminded to eat and drink regularly, carry much weight in the assessment of her capacity. Overall, I found in her oral testimony clear evidence that she has a degree of discernment and that she is not simply saying that she wants to go home without thinking about the consequences. I note in particular that for a period earlier this year she elected not to go on her daily visits to the bungalow because of the inclement weather. This is, to my mind, clear evidence that she has the capacity to understand and weigh up information and make a decision. Likewise, I consider her frank observation that “if I fall over and die on the floor, then I die on the floor” demonstrates to me that she is aware of, and has weighed up, the greater risk of physical harm if she goes home. I venture to think that many and probably most people in her position would take a similar view. It is not an unreasonable view to hold. It does not show that a lack of capacity to weigh up information. Rather it is an example of how different individuals may give different weight to different factors.
The Court did, however, and this is illustrative of the problem I have blogged about before, of what the heck a deprivation of liberty really is, determine that KK’s liberty had not been deprived. So even though she did not want to stay at STCC and had had to do so, her liberty was not being deprived. I echo what’s previously been said by the Courts on the DOLS issue, that it is extremely unfortunate that a law intended to help the most vulnerable in society has now become so impenetrable that no lay person (or indeed many lawyers) can really look at a set of circumstances and call correctly whether there has been a deprivation of liberty or not.
- This case illustrates the importance of the fundamental principle enshrined in s. 1(2) of the 2005 Act – that a person must be assumed to have capacity unless it is demonstrated that she lacks it. The burden lies on the local authority to prove that KK lacks capacity to make decisions as to where she lives. A disabled person, and a person with a degenerative condition, is as entitled as anyone else to the protection of this presumption of capacity. The assessment is issue-specific and time specific. In due course, her capacity may deteriorate. Indeed that is likely to happen given her diagnosis. At this hearing, however, the local authority has failed to prove that KK lacks capacity to make decisions as to where she should live.
- It will now be for the local authority and KK to discuss what happens next. It is not a matter for me to determine or even advise. One course may be for the local authority to put together a proposal for a series of trial overnight visits, with all necessary support, to enable KK to experience being back in the bungalow at night so that she can reach a decision whether she in fact wishes to move back. During that process, the local authority would doubtless be monitoring her capacity, and may of course return to this Court if it concludes that she no longer meets the functional test. But before doing so, it must be careful to ensure that it complies fully with the statute and Code of Practice, taking all practicable steps to enable KK to make decisions for herself.