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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.

 

In England, justice is open to all, like the Ritz Hotel

Is there a difference in family justice provided to middle-class parents? A discussiony paranoidy rant…

As you may know, the title of this piece is drawn from a remark by an English Judge, Sir James Mathew and was made in the Victorian era. It is intentionally barbed.

It had quite a flurry of revival in popularity  last year, as the Government debated and then implemented legal aid cuts that removed free legal advice from large chunks of the most vulnerable in society.

Private law

In terms of private law dispute, my initial question is likely to be true, sadly, as we go past April 2013.  After that time, a parent who is denied contact is going to struggle to get their case off the ground and into court unless they are (a) literate (b) articulate or (c) a person of financial means.      One might be cynical and say that the three things are interwoven, and that having three possibilities isn’t much use if they mostly capture the same group.

Of course, a person can represent themselves in court proceedings and a great many people do very well at it.  (I’d recommend Lucy Reed’s book “Family Courts without a lawyer”  for anyone who wants to do this  http://www.amazon.co.uk/Family-Courts-without-Lawyer-Litigants/dp/0956777406/ref=sr_1_1?ie=UTF8&qid=1359383824&sr=8-1 )

But even then, the litigant in person will either need to pay the Court fee for a contact application, which will be £200, or (if they are of limited means) navigate the byzantine system by which you can avoid paying the Court fee if you can satisfy an unsatisfiable bureaucracy of your entitlement to do so, a task which exhausts many private law solicitors who are well accustomed to trying.

[A bit like the Groucho Marx line that banks will lend money to people who can prove beyond doubt that they don’t need it]

Moving beyond that, you will as a wealthy or moderately wealthy person, have an option, a choice, which is denied to the non-middle class.  You can decide whether to represent yourself or have a specialist used to navigating the courts, who speaks the same language as the judge, who can advise you.  That’s a choice that won’t be open to someone who is not middle-class.  [using middle-class as shorthand for someone who has a professional job which pays them average or better income, regardless of family background and such  – of course there are plenty of plasterers who earn more than bank clerks.   Perhaps the class debate is better expressed as ‘haves or have nots’ but is a shorthand for this piece]

If you are faced with allegations of violence or abuse, you won’t get a lawyer to represent you and defend you against them unless you have money. The other parent, the one making them, might well get a lawyer, even if the allegations are false.

More and more private law cases these days are descending into these sorts of allegations, and probably more and more will in the future, as the funding system says that making them gets you a lawyer, whereas defending yourself against allegations that you say are false, doesn’t. 

Care proceedings

What about care proceedings though? The law says that if you are a parent and the State might be intervening in the way you bring up your child and might be contemplating your child no longer living with you, you would be entitled to free legal advice.

Everyone is on a level playing field then.  Family justice is like the Ritz, it is open to everyone.

But how true is that, really?

Here are some names that you will have seen in care proceedings, often many times, if you work in this field  – Zac, Jordan, Chantelle, Destiny.

Here are some names you have probably NEVER seen in care proceedings, Oliver, Crispin, Sophia, Harriet.

You might well say, and you’d be partially right, that a large tranche of care proceedings relate to neglect, and neglect in part springs from poverty.  So, a middle-class family don’t face the same social problems as a poor family, since they have choices and options.

A middle-class parent who struggles with managing household tasks has an option to get a cleaner, or to have someone do the ironing, they don’t have to prioritise between food and electricity, or gas or a toy for their child.

I would argue that not all poor families end up neglecting their children, and that it is possible, and indeed the vast majority of poor families do it, to get their children brought up in clean, safe and loving environments despite a lack of resources.

But it is certainly true that you’re at far greater risk of living in neglect if money is very tight than if you are affluent.

 

[Subsequent to writing this, I came across an excellent blog post in Community Care on why more poverty does not mean more neglect :- http://www.communitycare.co.uk/blogs/childrens-services-blog/2013/01/poverty-does-not-equal-neglect-benefit-cuts-will-not-see-more-children-taken-into-care.html   and is an interesting counterpoint to this debate. I don’t think we are miles apart, though I think if you increase the basic numbers of families in poverty, you may well increase the numbers of those families who don’t manage that sort of poverty well enough]

[This is reminding me of one of my favourite books, George Orwell’s “Down and Out in Paris and London”

It is altogether curious, your first contact with poverty. You have
thought so much about poverty–it is the thing you have feared all your
life, the thing you knew would happen to you sooner or later; and it, is
all so utterly and prosaically different. You thought it would be quite
simple; it is extraordinarily complicated. You thought it would be
terrible; it is merely squalid and boring. It is the peculiar LOWNESS of
poverty that you discover first; the shifts that it puts you to, the
complicated meanness, the crust-wiping….

 

And there is another feeling that is a great consolation in poverty. I
believe everyone who has been hard up has experienced it. It is a feeling
of relief, almost of pleasure, at knowing yourself at last genuinely down
and out. You have talked so often of going to the dogs–and well, here
are the dogs, and you have reached them, and you can stand it. It takes off
a lot of anxiety.

I have been, in case you doubt, exceedingly poor, as both a child, and as an adult, and recognise what Orwell says, particularly in his passages about how when you are truly truly hungry, nothing else in the world much exists than that hunger, that preoccupation with food and filling your belly with something.

So, perhaps the care proceedings net doesn’t cast over the “Haves” because neglect isn’t much of an issue in the “Haves” world.

But what about violence, what about sexual abuse, what about alcohol abuse?

I’m fairly certain that the disease of alcoholism, and the effect that it has on parenting, is not a class issue – it can take anyone.   In fact, I have worked, in the past, with people who drank a bottle of wine a night or more, and who would on that basis fail the sort of psychiatric examinations that we were sending parents to.

I have also encountered paedophiles from all walks of life – yes, very many were from damaged and impoverished backgrounds, but many others were teachers, professionals, doctors.

And I fail to believe that it is only poor people, only ‘common’ people, only ‘rough’ people, who reach the end of their tether, lose control and do something to a child that they should never have done.

There’s sort of a feeling, an unspoken one, in the Court rooms of this country, that child abuse is not done by people like us, that it belongs to a different world, another one, that we can look at, and judge, but not one that we truly belong in. There’s very little “there but for the grace of god” in child abuse cases.

As we know, and must remind ourselves, “The plural of anecdote is not data” and therefore it is of only  limited (or indeed no) evidential value that most of the times I have seen parents with middle-class jobs, accents, bearing and relations, facing allegations of physical mistreatment of children, a reason has been found as to why the medical evidence is wrong, and why they can be exonerated.

Efforts seem, again anecdotally to me, to be found by a mixture of professionals  (and again, I don’t claim that this is a conscious or deliberate action) to be more amenable to accepting that people like us couldn’t have done these dreadful things, than when similar things are alleged of people who live in a different sort of world to our own.

I don’t know how one could do the research on whether the outcomes for middle class parents are better for them than those for other parents – there’s no box on the application form for “Is the parent a bit posh?”    or “Do they shop at Asda or Waitrose?”   “Do they say napkin or serviette?”   but I’d like to see some, if someone wants to set out to do it.

So there is  at least the possibility of an unconscious bias of favouring or being more amenable to accepting the evidence given by people like us.

Can it go even further than that? To the overt stage, where actual cash, actual financial resources buys you a greater opportunity in a family case?

I don’t mind bribery, obviously. I don’t think that bribery plays any part in English justice. Call me naive if you want, I just honestly don’t believe that.

I had recently a conversation which prompted me to think about this piece, about a case (not one I was involved in, even tangentially and not necessarily a recent one) of suspected non-accidental injury, where the parents wanted to get a further piece of medical evidence, a fresh report. The Judge refused it, for good reasons about delay and proportionality.

The parents then pipe up that they could pay for the report themselves, rather than through legal aid, and lo and behold, there’s a reconsideration and the report is directed.

The justification, perhaps not unreasonably, is that the report is likely to be accelerated, expedited, on-time, if the expert knows that people are paying for it privately.  So the delay might not be so long, and the expert report will probably not hold the case up so much.  And of course, in the world we operate in, the Judge knows that the parents writing a cheque saves at least 2-3 weeks of messing around with the Legal Services Commission and prior authority, so the report probably will get done quicker.

Is that okay, or does that feel wrong?

It feels wrong to me that a person gets the chance to have a report not because of the merits of their case or the circumstances of the case, but because they, unlike someone else, can write a cheque and get it done.

[I couch all of this with the caveat that it wasn’t my case, I wasn’t there, I don’t know the detail – there may well have been very compelling reasons I am unaware of to have taken that course of action, but even just looking at it in the theoretical sense, would it be right in this hypothetical case below to allow the report?

 

Doctor says “I can do the report in 12 weeks, on public funding, but if it is paid for at my private rates, which are higher, I can do it in 5” 

 

If the Judge was going to refuse the report on basis that 12 weeks delay was too long, should she allow it in 5, if the parents are able to pay for it privately?    Or, is refusing it, if 5 weeks is considered reasonable delay, unfair just to preserve equality with some notional other parents who couldn’t pay the private fees?]

 

 

Can you go off and pay for your own expert without the Court’s permission?

Well, there have been some important decisions about that.  Firstly, you need leave of the Court to give the papers to the expert, and then  if you get leave of the court to instruct an expert, you have to cough up the report even if it is not favourable to you (unlike in crime)   [Re L : A Minor : Police Investigation : Privilege 1996 1 FLR 731 and then Re V (Care Proceedings : Human Rights Claims 2004 1 FLR 944]

 

If you don’t get leave of the Court and go off and get the report anyway, it still has to be disclosed.

[If there are ongoing criminal proceedings, the parent can keep those reports secret and even refuse to say if there are any expert reports and who has written them, and can keep legal privilege when discussing those reports with their care lawyer  S County Council v B 2000 2 FLR 161]

One clever way around this was tried in RE J (Application for shadow expert) 2008 1 FLR 1501

Where the applicant sought permission not to obtain a report that would have to be disclosed whether it was positive or negative, but instead an expert to basically advise the lawyer and formulate good questions for cross-examination and be a sounding board for the barrister’s theories. 

The Court felt that this was not appropriate and would not be granted. And of course, it would only have been a course open to someone paying for the report privately.

Can you get a better barrister by paying money?

A parent relying on a barrister who is being paid with public funding (or what all sane people call “Legal Aid”) will get proper advice, from someone who works hard and does their best and is bright.  All barristers who have experience in care proceedings do legal aid work, so you can’t get some better barrister, better advice by paying privately.  There’s not a Premier League of barristers who know about care but don’t do legal aid work.

I would NOT, for a second, suggest that the average barrister works harder or better on a case that they are earning more money on, I don’t think money comes into it. Honestly, I don’t.

But what you can get, potentially, is a QC.  If you are willing to pay for it, you can get a QC in a case that the LSC (legal services commission, or what sane people call the legal aid board) would not let you have one for free. 

That QC is the best of the best, and may give you an edge in the case.  Though some barristers who don’t have QC after their name are better advocates than some QCs, in general, a QC is going to be better.

It may well send a subliminal message to the Court about your case and the quality of it. Certainly there’s always an impression that the Court treats a QC with more respect than a run of the mill advocate.

Or you may not even need to go that far. Suppose you think about your barrister doing your case for public funding – they will work hard at your case, and put in effort. But they have another case the week before where they are doing that, and another the week after.

Might you get better representation from the same barrister, if you were willing to pay them to take two or three days off the week before your case to prepare?

We can’t know for certain, but I’d suggest that we all work better when we’re not shattered.

That’s an option available to those who have money that doesn’t exist for those who don’t.

Ring your solicitor up and say “I think my barrister should really only work on my case and nothing else the week before the hearing”, and you’ll get this answer if you have no money “That’s a nice idea, but I’m afraid it doesn’t work like that”   – and if you have lots of money, this answer  “They don’t normally do that, but we could see if they would – it would be very expensive though, you’d be paying for seven days of their time instead of five. Do you want me to speak to them about it?”

So, is English family justice really like the Ritz, or am I just crackers?