Tag Archives: mental capacity act

Removal of a vulnerable adult from his home

Posted on August 22, 2013 by suesspiciousminds

The decision of the Court of Protection in Re A Local Authority v WMA 2013

http://www.bailii.org/ew/cases/EWHC/COP/2013/2580.html

This is not, I think, a development in the law, but it is a recent decision by the Court of Protection which authorised the removal of a vulnerable adult WMA from his home, authorised the LA to go into his home and remove him, authorised him to be placed somewhere he didn’t want to go, authorised a deprivation of his liberty and authorised if necessary the police to go into his home and remove WMA, all on the basis that this was in his best interests, WMA lacking capacity to make such decisions for himself.   It therefore raises interesting talking points.

What orders are necessary? I find that these are: a power for the local authority to enter the home if necessary; a power to the police to restrain WMA if necessary; an order that WMA be removed from his current home and taken to B where the local authority will have power to retain him if needs be; and the local authority will have the power, of course, in addition, to sign the tenancy agreement on his behalf. These measures are proportionate and necessary.

As such, it is a powerful reminder of the powers that the Court of Protection have; the impact such powers can have on vulnerable individuals and additionally a useful summary of the factors to be balanced and tests to be applied.

I have to say that my own take on the case (which is not that important, but I’ll give it) is that I felt WMA’s wishes were somewhat marginalised and that the case was substantially more finely balanced than it might appear from reading the judgment. I probably would have authorised WMA’s removal, if all efforts to improve things for him at home had failed, but I would have found it more difficult to do so.

  1. The case concerns the future of a twenty five year old man, WMA, and where he should live plus what help should be given to him. It raises complex issues about best interests and deprivation of liberty.
  1. WMA suffers from an autistic spectrum disorder. Although it is possible to have a conversation with him about his clearly expressed views, it is plain, and agreed by even his mother MA, that he lacks capacity in some important aspects to which I shall come. He has been diagnosed in these proceedings as having atypical autism and a pervasive development disorder. He presents with unpredictable behaviour on occasion.
  1. He leads an isolated and insular life with MA, who has also sight and mobility problems of her own. The local authority is concerned about the impact of isolation on WMA’s long term development and its social work team has reluctantly come to the conclusion that he needs to be moved into supported living accommodation, despite the difficulty of the initial move, because in the long term this will help WMA and MA to develop a more healthy relationship. It is argued that there is currently an unhealthy degree of interdependence. The local authority alleges too that MA is unable to care for WMA properly, she is likely to be harming his development and it is against his best interests to remain with her.

 

 

Part of the problem in the case was that although WMA wanted to be with his mother, MA; professionals felt that MA was (a) holding him back and impairing the progress and development that he could make and (b) not able to actually care for him, to the point where the home conditions were described as both ‘squalid’ and the sort of home conditions that would lead a child to be removed for neglect.  MA did herself no favours by the way she participated in the hearing, one has to say.

The LA put the case like this

 

  1. 67.   “It is my professional view that WMA is a twenty three year old man with the potential to lead a more fulfilling life. I am also of the view that MA is not deliberately abusive to him but rather has needs of her own that have not been assessed but which impact upon her ability to care for WMA effectively and to manage her own living environment. I think she is not aware that her behaviour towards him is abusive. She has little expectations of him and there is evidence of the frustration she experiences from undertaking his care, shouting at him, preventing him from leaving the property. MA has stated on many occasions she does not want local authority involvement with the family, blaming them for the lack of diagnosis of WMA as a child. She has been found to be neglectful through safeguarding adults procedures. I am concerned that WMA has been treated in an inhumane and degrading manner by MA and that his true potential has been unrecognised and stifled. In order for him to live safely and towards a more fulfilling life I think he should move on to supported accommodation whilst continuing to have contact with his mother.”

The first issue in the case, where WMA had capacity to make decisions for himself, was fairly straightforward. (I did note with some surprise that WMA’s IQ was assessed at being 64, rather higher than one might have believed reading some of the descriptions of him, but of course with autistic spectrum disorder IQ itself isn’t the only measure of capacity)

  1. WMA’s significantly learning disability as a result of his autism meet the criteria of section 2 for he has an impairment of functioning of the mind or brain. Dr. Carpenter has made this quite clear. Even MA has doubts as to his capacity and considers him less capable than others of achieving in this life.
  1. In addition, WMA clearly meets the functional tests in section 3. He cannot use all relevant information relevant to a decision as part of the process of making a decision. This test is decision specific but I am satisfied that WMA cannot make decisions as to his residence, his care plan and his contact with his mother. Of course, WMA has sufficient capacity to decide what he wants to eat but he cannot cope with concepts or make sensible plans as to where to live. In addition, he cannot cope with or even contemplate change, save with assistance.
  1. This, too, is confirmed by Dr. Carpenter who made it clear to me that this is not a borderline case as to capacity. He counselled against believing that WMA has near capacity simply because of his verbal abilities. That view of the functional test was echoed in the evidence of Mr. McKinstrie, the independent social worker, and the views of the social workers who gave evidence.
  1. Accordingly, I have concluded WMA cannot use or weigh the factors as to where he should live. His view that he should remain living with his mother is a decision he is incapable of making. He cannot weigh up all the considerations. Alongside that fundamental issue he cannot decide what care package is suitable for him or, indeed, what contact if away from MA he should have with her.

Having established that WMA lacked capacity, the Court then had to go on to consider what was in his best interests, taking into account all of the factors set out in the Mental Capacity Act 2005.

The Court made the following factual findings

  1. I make the following findings.
  1. First, the local authority social workers have been unable and will be unable to provide appropriate care for WMA and monitor it because of his refusal to accept it and because of MA’s inconsistence and erratic interference with the local authority help.
  1. Second, there is a worrying history about MA’s care for WMA that shows no sign of abating.
  1. Third, that the local authority has made special efforts over the last eighteen months to engage fully with both of them but there has been an unacceptable degree of conflict. I am not persuaded the local authority could have done any more and I have noted with concern the helpful evidence of CG that she has felt under threat recently.
  1. Fourthly, WMA lives an isolated lifestyle and is expected often to be in mother’s eyes and ears. His relationship with her, however, is a frustrated one and there is clear evidence on mother’s case alone that he is, at times, beyond control.
  1. Fifthly, the isolation is such that WMA just does not go out with any with any regularity. Dog walking and shopping appear to be virtually the limit of his outdoor activities with the exception of the few outings that were organised by Delos who he now rejects. As long ago as February 2012 he could not recall when he last went out anywhere.
  1. Sixthly, the home of MA and WMA continues to be kept to a very low standard of cleanliness and, whilst it is not for the court to impose respectable middle class standards of care, nonetheless, the home’s condition has on occasion deteriorated. The recent evidence of CG, for example, that the fridge is kept to a low standard of cleanliness is very concerning. True enough, this has not yet made WMA ill but I am sure that it will one day,
  1. Seventhly, there is a plain history of neglect of WMA by his mother. She does not keep him sufficiently safe or clean or his clothes sufficiently clean to an acceptable standard. The clear point is that MA’s standards are not simply lower than the norm, they are below a good enough standard.

It is important to note that the ‘safeguarding concerns’ were not the test – they were a factor to be weighed in the best interests decision, but it was not a simple matter, as the Official Solicitor suggested the LA had put it of safeguarding concerns being the focus of the Court.  The Official Solicitor also raised on behalf of WMA that the case might well be social engineering. It was not right to move WMA simply because he might DO BETTER in a setting away from his mother   (this is a well-established principle in care proceedings), it had to be a decision taken in the round, for his best interests.

There was an interesting debate about what the starting-point is in such cases (i.e does one START with the position that WMA ought to be at home where he wants to be, or START with a blank sheet of paper?  In care proceedings, of course, the Court STARTS with the proposition that it is better for a child to be at home with his parents and has to have compelling evidence to move away from that proposition)

Not so in Court of Protection cases.

  1. I quote from another part of the K v LBX case [2012] EWCA (Civ) 79 not cited by Mr. O’Brien. In discussing whether or not the court would start from placing the person concerned with their family, Black LJ said this:

“A prescribed starting point risks deflecting the decision maker’s attention from one aspect of Article 8, private life, by focusing his attention on another, family life. In its wider form incorporating reference to both private and family life, there is a danger it contains within it an inherent conflict for elements of private life, such as the right to personal development and the right to establish relationships with other human beings in the outside world may not always be entirely compatible with the existing family life in the sense of continuing to live within the existing family home.”

It is a difficult tension here – once a person lacks capacity, there is no “Threshold criteria” no test of harm that has to be crossed by the State to justify their removal from their family home; the Court just has to consider whether it would be in WMA’s best interests to be so moved.

Of course, the law is intended to protect vulnerable people who prior to the MCA 2005 would have been left alone to live in squalid conditions with their needs not being met unless the person met the criteria under the Mental Health Act for detention or Guardianship (or the little-used powers under community care legislation)

National Assistance Act 1948

s47 Removal to suitable premises of persons in need of care and attention.

(1)The following provisions of this section shall have effect for the purposes of securing the necessary care and attention for persons who—

(a)are suffering from grave chronic disease or, being aged, infirm or physically incapacitated, are living in insanitary conditions, and

(b)are unable to devote to themselves, and are not receiving from other persons, proper care and attention.

 

Which made provision for an application to be made to Court and an order authorising the removal.  I’m not sure how often that was ever used, but one can see that there is something of a test in there (and a pretty high one), rather than the generic principle now that a person lacking capacity can be removed from their family if the Court of Protection consider it is in their best interests.

There are no police powers to remove a vulnerable adult from a home where they are felt to be at risk, and the criminal offence of neglecting a vulnerable adult whom you are caring for only came about with s44 of the Mental Capacity Act 2005.

On the other hand, this leaves a vulnerable group of adults, those lacking capacity, as being those for whom the Court of Protection can make wide-ranging decisions about what is in their best interests. One hopes, of course, that the Court of Protection makes what one would objectively consider to be in the best interests of the vulnerable adult, but there is this obvious tension between what the State might consider to be in the best interests of the adult, and what the adult and their friends and family might consider to be in the adults best interests.

The Mental Capacity Act of course came about to fill a gap in the law, the “Bournewood gap” where a person who lacked capacity to declare that they wanted to leave a residential unit ended up remaining there with his carers being unable to challenge that decision or remove him, and the case had to go all the way to Europe.

We are still in relatively early days of the Court of Protection and the working of the MCA in practice, but a case like this does point up how even when a Judge carefully analyses and balances all of the competing factors, the exercise of a “best interests” decision can completely turn WMA’s life upside down, and unless his capacity to make decisions changes, such a decision will be very hard to reverse or challenge for WMA in the future.

It could be argued, and is being by many who come across the MCA, that the solution is becoming worse than the problem. It is very hard not to be paternalistic when operating the best interests decision.  (for me, in this one, the chronic neglect and home conditions probably just tip the balance, when combined with the long-standing unsuccessful attempts to resolve this, but if they do tip the balance, it is only just, and I might well have gone on to find that the article 8 right to private and family life trumped it).  It does seem to me a little odd that there’s no presumption in the MCA that the vulnerable person’s family are better placed to make a decision for what is in their best interests unless there are compelling reasons to the contrary.

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Capacity and Vasectomy

Posted on August 19, 2013 by suesspiciousminds

The decision in Re DE  2013 , and issues arising from this

 

http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/de-judgment-16082013.pdf

 

I will start by saying that this is obviously a controversial judgment, dealing with the State intervening in the private life of an individual, and the Court authorising the sterilisation of a man who did not have capacity to agree to such an operation.

 

I actually think that the judgment was very fair and well-balanced and carefully looked at the need to respect DE’s rights and interests, and did not smack of the patrician attitude or eugenic approach that one might think going by some of the media reporting. I only have one real critique of it, but it is an important one.  There are some really good articles analysing this decision, in both a critical and supportive tone, and it is a thought-provoking issue.

 

This was a Court of Protection decision, dealing with the application by the NHS for the following three declarations

 

a) DE does not have capacity to make a decision on whether or not to undergo a vasectomy and to consent to this procedure;

b) That it is lawful and in DE’s best interests that he should undergo a vasectomy;

c) It is lawful for the NHS Trust to take any steps which are medically advised by the treating clinicians at the trust responsible for DE’s care to undertake this procedure which may include the use of a general anaesthetic and all such steps as may be necessary to arrange and undertake the procedure including general anaesthesia.

 

 

 

 

The Court went on to note what made the declarations sought newsworthy (and indeed the case made national news)

 

            If the declarations sought are made it will, the court is told by the Official Solicitor, be the first time that a court in this jurisdiction has made orders permitting the sterilisation for non therapeutic reasons of a male unable to consent to such a procedure.

 

 

 

There was quite a well-balanced piece on this in the Guardian, for example

 

http://www.theguardian.com/law/2013/aug/16/court-sterilisation-man-learning-difficulties

 

It is important to note at an early stage, that if DE had capacity to make decisions for himself (and the Mental Capacity Act 2005 has as a starting point that people DO have such capacity unless demonstrated otherwise) then the Court have no real role in matters save for determining whether he does or does not have capacity. 

 

People get to make decisions for themselves, unless the Court declare that they don’t have capacity to make that decision; and in broad terms the capacity means that with help and guidance the person can understand the competing factors involved, can weigh up those factors, and can communicate their decision.  (It is REALLY important to understand that a person with capacity can still make what appear to be really stupid or bad decisions; capacity isn’t about people making logical decisions but that they understand  (a) that there are factors to take into account and what those factors are (b) that they should weigh up those factors and are capable of doing so and (c) can communicate their decision afterwards. The law doesn’t, or shouldn’t, interfere with people making foolish decisions, only with people who don’t have capacity to make a decision)

 

If he has capacity, the operation will only take place if both he and the doctors agree to it.  It irked me considerably how many of the reports of the case by the media made reference to DE “agreeing to the vasectomy” – if he had capacity to agree to it, the decision wouldn’t have been made by a Court, what he had were wishes and feelings about it which fell short of capacity to make the decision. Those are important to take into account in the stage AFTER capacity, which is “what is in this person’s best interests to do next?”

 

 

The history is fairly simple.

 

2. DE suffers from a learning disability. He lives with his parents FG and JK. With the dedication of his parents and the support of his local disability services, DE has prospered and achieved far beyond what may have been expected given his level of disability. Prior to 2009, not only had he achieved a modest measure of autonomy in his day to day life, but he had a long standing and loving relationship with a woman, PQ, who is also learning disabled.

3. In 2009 PQ became pregnant and subsequently had a child XY. The consequences were profound for both families; legitimate concerns that DE may not have capacity to consent to sexual relations meant that protective measures had to be put in place to ensure that DE and PQ were not alone and DE became supervised at all times. DE was clear that he did not want any more children. His relationship nearly broke under the strain but remarkably it has weathered the storm

4. There is no question of DE having the capacity to make decisions as to use of contraception. FG and JK formed the view that the best way, in his interests, to achieve DE’s wish not to have any more children and to restore as much independence as possible to him was by his having a vasectomy.

 

 

Unfortunately for me, I think the key issue is actually the matter dismissed in a single sentence at para 4 (my underlining)

 

I think there were 3 separate issues on which one needs to know if DE had capacity

 

(a)  Can he consent to sex  (if not, contraception not all that important, because the State can’t condone him engaging in sexual intercourse)

 

(b)  Does he have capacity to make decisions about contraception? (if he can, vasectomy only an issue if he DECIDES that he wants to go the vasectomy route)

 

(c)  Does he have capacity to consent to a vasectomy operation?

 

 

A capacity report undertaken in November 2012 concluded that DE did not have capacity to consent to sexual intercourse. That obviously posed significant problems for his relationship with PQ, and what obligations were on the other members of the family to prevent a sexual relationship taking place.

 

(There are some really big issues here about a case where two people with capacity issues love each other and wish to express those feelings physically, although they do not reach the level of understanding the law deems as being able to consent to sexual intercourse. Probably neither has the mens rea needed to commit the offence, but their carers could find themselves in legal difficulty for not having prevented such an offence occurring. Whilst it is VITAL that the law protects people who lack capacity to understand the nature of sex from being exploited by those who do, it seems to interfere profoundly with the private life of two such people in a relationship together. This is a really really tough issue, and I have no idea how one would legislate about it, but I suspect we are not that far off a Court hearing dealing with this specific issue)

 

 

 

The Court made an interim declaration following that report that DE did not have capacity to consent to sexual intercourse and the relevant Local Authority had to convene a safeguarding meeting and come up with a plan to protect DE from unlawful sexual activity.

 

At a hearing on 15 November 2012 in the light of Dr Milnes’ report the court made by consent an interim declaration that DE did not have the capacity to consent to sexual relations. The Local Authority, quite properly and appropriately, thereafter held a Safeguarding Adults’ Conference on 30 November 2012. A Protection Plan was put in place meaning that DE and PQ were not to be left alone without supervision. Inevitably this had a significant impact on all DE’s activities, for example transport home being provided instead of DE getting the bus to avoid chance meetings with PQ. MB summarised the impact on DE as having experienced the loss of:

a) Engaging without supervision/staff support, with the local community

b) Walking through town from one venue to another with a friend

c) Going to shops, making purchases, interacting with traders and passers by

d) Using the local gym and facilities on the same terms as any other participant

and that is before one factors in the loss to DE of any form of privacy or time on his own with his long term girlfriend.

At about this time PQ ended the relationship with DE to his considerable distress. At the time it was not clear why PQ had decided to do this but, in due course, it was realised that she had wrongly believed that these proceedings in some way related to XY and she thought that if she stayed with DE she might lose her baby. In addition to this fear it had had to be explained to PQ that if she and DE had sexual intercourse she would be committing a criminal offence. It is hardly surprising that, frightened and with a limited ability wholly to understand what was happening, PQ completely withdrew from DE. DE therefore suffered a further loss, namely the loss of PQ between about November and June of 2013.

MB initially felt that DE coped well with the increased supervision and filed a statement to that effect but, as time went on it became clear to her that there was in fact a marked adverse impact upon DE. Gradually his ability to go out and to do things on his own was being lost and by April 2013 there were considerable concerns about DE’s reduced level of independence. It has to be remembered that each achievement on DE’s part takes months if not years to be gained and if not used and reinforced is quickly lost. FG told me that as winter approached last year DE stopped going to the day centre on the bus on his own, she said DE said that it was because it was cold, but Dr Milne felt it may well have been a loss of confidence and fear of doing wrong

 

 

And so one can see that the legitimate desire to protect DE from unlawful sexual intercourse ended up having all sorts of detrimental impacts on his quality of life and independence.

 

Work was undertaken to try to raise DE’s awareness of sexual matters, to lift his understanding to a point where he COULD be judged to have capacity to consent to it, it being plain that DE and PQ wished to be in a relationship and wished physical intimacy to be a part of that.

 

34. The Official Solicitor has felt it necessary, notwithstanding the universal views now expressed by the witnesses, to explore the issue as to DE’s capacity to enter into sexual relations. At the conclusion or the oral evidence in relation to this aspect of the case, the Official Solicitor now accepts that the court should proceed on the basis that DE has capacity to enter into sexual relations. Having read all the reports and heard the evidence I am satisfied that DE has capacity to enter into sexual relationships, although it will be necessary for him to have so called ‘top-up’ sessions to ensure that he remembers how to keep himself safe from sexually transmitted infections and diseases.

            Whilst DE can consent to having a sexual relationship, it is accepted by all parties that he does not have capacity to consent to contraception and will not regain the necessary capacity. It is therefore remains for the court to determine whether or not it is in DE’s best interests to have a vasectomy. In order to carry out the balancing exercise required in order for the court to reach a decision it is necessary for the court to consider in some detail certain aspects of DE’s life and of his views in so far as they can be ascertained.

 

 

 

And then, on ability to consent to the surgical procedure of a vasectomy

 

52    t is agreed that DE lacks the capacity to weigh up the competing arguments for and against having a vasectomy. That is not going to change no matter how dedicated and skilful the work carried out with DE may be. His wishes and feelings in relation to having a vasectomy have rightly been explored. He has been broadly been in favour of the idea although in his most recent session with CH and ZZ on 23 July 2013 and with Dr Milnes, he expressed a view that he would prefer to use condoms. Neither CH nor Dr Milnes think these recent meetings are wholly to be relied upon. On 23 July, DE had just learnt that a very close friend had died and was deeply distressed, in addition, he had just had a session in which the issue of pain immediately following a vasectomy was discussed with DE. CH thought that this may have been the influencing factor. Dr Milnes’ final view is that if it is explained to DE that a vasectomy is foolproof in relation to “no more babies”, but that he might conceive with a condom he would go for the vasectomy.

53    I approach DE’s wishes and feelings in relation to a vasectomy with the utmost caution. DE does not have the capacity to consent to a vasectomy and that must inevitably colour the court’s approach.

 

Going back to my list then, DE had been determined to have capacity to have sexual intercourse, to lack capacity to make a decision about surgery and vasectomy.

 

That left issue number 2 – did he have the capacity to make his own decisions about contraception? If he did, the issue of surgery did not arise (other than that if he ASKED for a vasectomy, the medical professionals knew that he did not have capacity to consent to the operation)

 

What the heck is the test for a person’s capacity in making decisions about contraception? How did the Court establish whether or not DE had it?

 

            35.Whilst DE can consent to having a sexual relationship, it is accepted by all parties that he does not have capacity to consent to contraception and will not regain the necessary capacity. It is therefore remains for the court to determine whether or not it is in DE’s best interests to have a vasectomy. In order to carry out the balancing exercise required in order for the court to reach a decision it is necessary for the court to consider in some detail certain aspects of DE’s life and of his views in so far as they can be ascertained

 

And here

 

            54. In relation to the reported cases on consent to contraception there remains uncertainty as to whether a man needs to understand female contraception as well as male contraception before he is deemed to have capacity. In my judgment DE does not have the capacity to consent to contraception on any level. I therefore do not need to consider the issue and do not propose to comment on how a court, having heard full argument in a case where the issue is relevant, might decide.

 

I’m ever so slightly infuriated by this, if it is possible for such a state to exist.

 

It seems to me that before the Court embark on the best interests decision (which I consider was all done perfectly properly and I can quite see why the decision to declare that the NHS could perform the vasectomy was made) it was VITAL to decide what it was that DE did not have capacity to decide, and what the test for that capacity was.

 

Particularly given that he now had capacity to consent to intercourse, and that his capacity had been raised by intervention to reach that point. The capacity to consent to intercourse involves of course not just an understanding of the mechanics and the physical act, but the consequences of it (including pregnancy and the possibility of STDs)

 

I am struggling quite a bit to see how a person such as DE can be capable of understanding the consequences of sexual intercourse, but not making decisions about what contraceptive action to undertake. And of course, it takes two to tango, as the saying goes, so PQ’s ability to make decisions about contraception would factor into this.

 

[The Court said no in relation to the latter point, for these reasons. 

 

In my judgment the court should not factor into account any contraceptive measure PQ may be taking for two reasons:

i) The evidence is that PQ is unreliable in taking the contraceptive pill and has a phobia of needles so a Depo injection has been discounted.

ii) In the event that the relationship breaks down, it is likely that he will form another relationship. In the group of learning disabled people who form DE’s social circle, it is the norm for there to be relationships within the group; DE is popular and friendly and after 11 years with PQ accustomed to having a girlfriend. Even if PQ was wholly reliable in relation to her own contraceptive care, a future girlfriend may not be so assiduous.

 

I agree on point (i), am not so sure about point (ii)  – it seems to me that this would be a relevant factor in deciding when it arises, and not to fortune tell]

 

It was universally accepted that the decisions about how DE could have sex without producing offspring was something that he could not decide; but in nothing like the detail of the other two capacity decisions.

 

Once the Court accepted that DE did not have the capacity to make decisions about how to manage sex without producing offspring (and all parties accepted that he didn’t), the best interests decision was the next step, and in relation to this, I think the Court’s analysis is faultless from there on out.

 

The Court went on to balance the use of other contraceptives against a vasectomy, and used the reliability of those measures as a key factor; particularly taking into account the abilities and limitations of DE and PQ in reliably and properly undertaking those measures. The Court also went on to consider everything that DE and PQ had expressed about their wish for physical intimacy but not to have another child.

 

It is a very careful balance about what is best for DE, taking into account all of his circumstances and his wishes and feelings, and not putting too much emphasis on any one issue. I think it is a damn good judgment and decision.

 

I am just left a bit unsettled about the key issue – the decision under question was not “should DE have a vasectomy” but “should the State take over DE’s decision-making in relation to contraception”  (and thereafter, what’s better for DE – vasectomy or alternative contraception) and I remain very vague about what the test for capacity in relation to that question was, and why DE was considered not to satisfy it.

 

 

I can’t really blame the Court for not dealing with the issue of capacity to contraception in a more in-depth way, given that all parties accepted DE did not have it and the Judge concluding that she was completely satisfied that DE did not have it.

 

But I am left with a rather nagging feeling that it is hard to imagine that DE had capacity to consent to sex if he lacked capacity to make decisions about contraception  (understanding the potential negative consequences of sexual intercourse surely has to incorporate the persons ability to militiate against such consequences); and that perhaps a DE-focussed decision was made that declaring that he did not have capacity to consent to sex was going to have a massively detrimental impact on his life.

 

Although a declaration that a person can’t consent to an operation doesn’t mean that one progresses inexorably towards the operation being directed – a best interests decision needs to be taken, the same is not true of a consent to sexual intercourse.  Almost any capacity decision is followed by a best interests decision of what is best for the person. Almost any.

 

Save this one. The Court of Protection cannot declare that a person lacks capacity to consent to sexual intercourse, but that nonetheless a sexual relationship continuing or recommencing is in his best interests. Once that declaration is made, sex is off the agenda. And that clearly wasn’t in his best interests.

 

So I have a slight suspicion that there was an element of Judge Fudge on the contraception point, in order that DE and PQ could enjoy their relationship without producing further children (it being clear that neither of them wished to do so, but didn’t have the wherewithal to make sure that didn’t happen).  I am not critical in the slightest if that did happen, I think it was the right call for DE.

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Inherently nothing, nothing inherently

Posted on August 10, 2013 by suesspiciousminds

A (hopefully short) discussion about the inherent jurisdiction, particularly as it applies to adults.

I wrote about the Court of Protection popping on the High Court hat to make use of the inherent jurisdiction to get around an otherwise impossible jam, in A NHS Trust v Dr A 2013 http://www.bailii.org/ew/cases/EWHC/COP/2013/2442.html and it got me pondering.

As a quick summary, the inherent jurisdiction is a creation of the common law, i.e it was decided in cases before the Court rather than laws enacted by Parliament or regulations or codes drawn up by Ministers.  It essentially provides for the High Court to use unspecified but wide-ranging powers to solve a problem that could not otherwise be achieved by use of statutory powers. In the case of Dr A, because Dr A was detained under the Mental Health Act AND lacked capacity, and the treatment that was considered desirable for him was not in relation to his mental illness but his physical wellbeing; the construction of the Mental Capacity Act prohibited the treatment being authorised by the Mental Capacity Act, and it was treatment that couldn’t be legitimately compelled without consent under the Mental Health Act.

 

The Court’s solution was to make use of the inherent jurisdiction – as we know from that case, had they not done so, the man would probably have died, and we also know that the man went on to make a good recovery and was happy not to have died. So it was the right thing to do. But it was, nonetheless, the High Court using broad and unspecified powers to achieve an outcome that was specifically prevented by legislation enacted by an elected Government. Yes, that legislation was probably a mess and it hadn’t been properly thought through, but nonetheless, the High Court did something that the statute had specifically prevented.

So, my question is – Is the Inherent Jurisdiction a useful and helpful tool to have to allow Judges dealing with difficult cases the necessary flexibility to arrive at what they consider to be the right outcome, or is it a method by which Judges can grant themselves powers that have never been specifically handed to them?  Are we accepting that in exposure to real life, statutory laws will always have stress points and flaws and sometimes break completely and it is helpful to have the judicial Polyfilla of the Inherent Jurisdiction to come to the rescue? Or do we consider that if the UK Parliament wanted to make it lawful for Judges to make orders to sterilise patients, to effectively continue Wardship on someone who was an adult, to determine whether a person could marry, to authorise surgery on conjoined twins against the wishes of parents who were competent, to regulate the relationship between vulnerable adults and their adult son, to decide whether a parent’s views about cancer treatment should be overriden for their child, or to authorise force-feeding, that this should be done through statutory laws?   (Those are all genuine cases involving the use of the inherent jurisdiction to make such orders, and some went on to lead to the introduction of statutory mechanisms to resolve these problems)

Of course, if the inherent jurisdiction hadn’t been there, then the Court could have ended up being unable to make the decisions and orders that were deemed to be in the person’s best interests – it would have been no good to any of those individuals that the Government in four or five years time would bring about some legislation on forced marriages, or persons lacking capacity. Don’t we WANT Judges to be able to make the right decisions – they are seized of the facts, they hear the arguments – we wouldn’t want them to have to make a decision that they felt was not right for the individuals concerned merely because the law hadn’t anticipated this set of circumstances and made provision for it?

On the other side, however, it worries me to an extent, firstly because we are now getting into territories where there IS existing legislation to make provision for these things. Both the Mental Capacity Act and the Mental Health Act have very long and detailed provisions for the circumstances in which treatment can be undertaken without consent. Dr A happened to fit within both pieces of legislation – he was detained under the Mental Health Act, and was determined to lack capacity to make decisions about the feeding treatment under the MCA.  Whilst I consider that the final decision that was taken was right, and in Dr A’s best interests, I can’t get away from a nagging feeling that all of those statutory provisions and requirements were sidestepped by a Judge simply deciding that “X should be done, and I will do it under the inherent jurisdiction”

We surely needed the Mental Health Act and Mental Capacity Act so that it was clear (or comparitively clear) under what circumstances the State could interfere with a person’s life and autonomy, what would be required before the State could do so, what the checks and balances would be, what rights the person would have.  All of that seems to me to get a little lost when a High Court Judge can simply decide that they have the power to achieve the outcome they desire?

In children cases, the use of the inherent jurisdiction is moulded into the statute – it says what it cannot be used for, and gives parameters in which the State can invite the Court to use those powers. In adult cases, it is not incorporated or limited.

Sentences like this, from McFarlane LJ  (who I believe to be a fair and just Judge) still make me shudder a little   “It would have been open to Parliament to include a similar provision, either permitting or restricting the use of the inherent jurisdiction in cases relating to the capacity to make decisions which are not within the MCA 2005. In the absence of any express provision, the clear implication is that if there are matters outside the statutory scheme to which the inherent jurisdiction applies then that jurisdiction continues to be available to continue to act as the ‘great safety net’ described by Lord Donaldson.”  DL V a Local Authority 2012  http://www.bailii.org/ew/cases/EWCA/Civ/2012/253.html

I don’t like the notion that Judges are able to consider that they have carte blanche with these powers unless Parliament expressly take them away.  Because another way of looking at it would be – that when you are deciding on compelling medical treatment for a person who doesn’t consent to it, you are looking at whether it can be authorised under either Mental Health Act, Mental Capacity Act or the doctrine of necessity, and that if it can’t, then it simply can’t be authorised.

Once you consider that in every case where the Court uses its Inherent Jurisdiction they are in effect making a decision that the State knows best and can impose a paternalistic decision upon people overriding their autonomy, it becomes something that is potentially concerning.  I say that not because I think any of the Judges who have used it have ever done so for reasons other than genuine belief that it was in the best interests of the individual; but because I firmly believe that people should have autonomy other than in circumstances specifically set out in statute law.  I would rather preserve Judges as the referee , as the person sifting the evidence, hearing the argument, being arbiters and determiners of whether the State has made out its case for taking decisions away from the individual under statutory powers;  and not stepping onto the pitch and taking part in the match itself.

Do I think that this principle is more important than a Court being able to solve an intransigent problem in an individual case?  That’s harder to say – faced with a life or death situation like Dr A and the statutory law as written meaning that the Court would be powerless to order the treatment which it had already decided was in Dr A’s best interests, it is hard to feel that they should be denied the chance to make the right decision. I perhaps feel that using the inherent jurisdiction to Polyfilla the cracks is ultimately less good for the individual than Judges being able to go back to Parliament and say “Look, you hadn’t envisaged this scenario – I have fixed it just this once, but what do you want Courts to do if it comes up again?@

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Deprivation of liberty and force-feeding

Posted on August 7, 2013 by suesspiciousminds

The Court of Protection grappled with a difficult issue in A NHS Trust v Dr A 2013

http://www.bailii.org/ew/cases/EWHC/COP/2013/2442.html

Apologies in advance – this is a long article, it is complex and if you don’t do mental capacity or mental health law you probably don’t need to read it.

The facts of the case involved a Doctor who began manifesting erratic behaviour, for example insisting that anyone in the colour red was a member of the Iranian Secret Police and that a book he was writing disproving evolution would make him famous after his death. Dr A also went on hunger strike, following the confiscation of his passport by the UK Border Agency.

Although one expert was of the view that Dr A’s behaviour was all an attempt to apply pressure to reverse decisions about his asylum case, the vast majority of the experts considered that he had had a genuine breakdown of his mental health.

Without going into the details too much, the Court were satisfied that Dr A was suffering from a delusional disorder impairing the functioning of his brain affecting his ability to use or weigh up information relevant to his decision as to whether or not to accept nourishment.  (And thus in terms, that he did not have the capacity to decide to refuse nourishment)

The Court then weighed up whether it was in Dr A’s best interests to receive nutrition by way of force feeding or not  – this is not a simple decision, and a number of competing factors were weighed up and considered. The Court determined that it would be in Dr A’s best interests to receive nutrition by way of nasogastric tube feeding.

However, an issue then arose about whether, having made the declaration that Dr A lacked capacity, and that force-feeding would be in his best interests, whether the Court actually had jurisdiction to compel it.

  1. I therefore conclude that it is in Dr. A’s best interests for this court to make an order that permits the forcible administration of artificial nutrition and hydration.
  1. I now turn to consider the power of the court to make the order in his best interests. The question emerged in the course of argument as to whether, in the circumstances of this case, the court had the power under the MCA to make an order for the forcible feeding of Dr. A. Subsequently, the investigation and analysis of that question has taken a considerable amount of time, both for the parties’ legal representatives and the court. It is alarming to find that the legal position on this fundamental issue is far from straightforward

 

The fact that the next part of the judgment is headed “Eligibility – a new gap?” will make practitioners in this field very nervous – the last gap went all the way to Europe, and ended up with the Mental Capacity Act and all of the impenetrability that the MCA has become in practice.

The Court had to look at whether force-feeding was a deprivation of liberty, and concluded that yes it was. This may well turn out to be important in other cases involving for example political protests,  Brady-type efforts to end ones own life or persons with eating disorders.

When determining whether the circumstances amount objectively to a deprivation of liberty, as opposed to a mere restriction of liberty, the court looks first at the concrete situation in which the individual finds himself. In this case, there is no dispute that subjecting Dr. A. to forcible feeding amounts to a deprivation of liberty. In order to feed him he will be physically restrained by NHS staff against his will while a nasogastric tube is inserted. The restraint continues to prevent him removing the tube. On occasions, in this process, he is sedated. He is not allowed to leave the hospital. The staff are effecting complete control over his care, treatment and movements, and, as a result, he loses a very significant degree of personal autonomy.

The issue then was whether the Court had powers under the MCA to make an order that had the effect of depriving Dr A of his liberty. This becomes very complex, very quickly, even by MCA standards.

  1. 16A(1) of the MCA are clear:

“If a person is ineligible to be deprived of liberty by this Act, the court may not include in a welfare order provision which authorises the person to be deprived of his liberty.”

And then a long trawl through Schedule 1A of the MCA which sets out when a person is ineligible to be deprived of liberty under the MCA shows that the MCA can’t be used to deprive a person of their liberty if they are being, or are capable of being , detained under the Mental Health Act.

In the light of the evidence suggesting that the criteria set by section 2 MHA might be met in respect of Dr. A., it seemed to me that it was at least arguable that he was “within the scope of the MHA” and therefore, by virtue of paragraph 5 of schedule 1A of the MCA, ineligible to be detained under the MCA.

The hospital actually detained Dr A under s3 of the Mental Health Act during the interim period between the Judge asking trial counsel how the heck this could be fixed and them coming up with solutions. Did that help?

  1. The consequence of placing Dr. A under section 3 was, however, merely to accentuate the difficulties about the application of section 16A because, although removing him from the ambit of case E of schedule 1A, it put him squarely within case A. On any view, he is both subject to a “hospital treatment regime” within the meaning of paragraph 8(1) of the schedule and also detained in a hospital under that regime. In those circumstances he is, prima facie, ineligible to be deprived of his liberty under the MCA and the Court of Protection may not include in any welfare order any provision which authorises him to be so deprived.
  1. Put boldly in that way, it will be seen that this might make it impossible for someone to be treated in a way that is outwith his “treatment” under the MHA if that treatment involves a deprivation of liberty. To take a stark example: if someone detained under section 3 is suffering from gangrene so as to require an amputation in his best interests and objects to that operation, so that it could only be carried by depriving him of his liberty, that process could not prima facie be carried out either under the MHA or under the MCA. This difficulty potentially opens a gap every bit as troublesome as that identified in the Bournewood case itself.

 

So, you can provide treatment to a person who is, or is capable of being, detained under the Mental Health Act, in accordance with the MHA  BUT if the treatment isn’t capable of being provided under the MHA you cannot then turn to the MCA as being a vehicle for providing that treatment even if the person does not have capacity and the Court has declared that the treatment is in their best interests, because of Schedule 1 A of the MCA.

Sorry, this is going to be  complex, it takes about five pages of going through the Act itself to get to that point – the Judge was so exasperated by what he described as  the ambiguity, obscurity and possible absurdity of the legislation, that he authorised counsel to look at the Parliamentary debates in a Pepper v Hart exercise to see if this idiocy was what Parliament had intended, or whether it was a cock-up.  (Judges hardly ever embark on the exercise of looking at what Parliament said about the construction of the Act  – it’s that Otto von Bismarck  “laws are like sausages – it is better not to see them being made” thing)

  1. The Official Solicitor now suggests three solutions to the problem described above:

(1) The necessary feeding and associated measures can be taken under the MHA. There is therefore no need for an order under the MCA.

(2) If the necessary feeding and associated measures cannot be taken under the MHA, an order can still and should be made under the MCA interpreted in accordance with the Human Rights Act 1998.

(3) If the necessary feeding or associated measures cannot be taken under the MHA or the MCA, an order should be made under the High Court’s inherent jurisdiction.

I shall consider these options in turn.

Authorising the treatment under the Mental Health Act

Understandably, the Official Solicitor cited the Ian Brady case as authority for the suggestion that force-feeding can be authorised under the Mental Health Act.

This is the key passage in the Brady judgment that sanctioned his force-feeding under the MHA  (a decision that frankly, I found a bit ‘iffy’ at the time, going much further than traditional views that one can forcibly treat the mental disorder but not physical disorders under the MHA)

71.   “On any view, and to a high degree of probability, section 63 (MHA) was triggered because what arose was the need for medical treatment for the mental disorder from which the Applicant was and is suffering. The hunger strike is a manifestation or symptom of the personality disorder. The fact (if such it be) that a person without mental disorder could reach the same decision on a rational basis in similar circumstances does not avail the Applicant because he reached and persists in his decision because of his personality disorder.”

The medical evidence in this case did not back that up

In this case, therefore, the clinicians treating Dr. A. feel strongly that artificial nutrition and hydration and ancillary treatment are, on the facts of the case, treatment for a physical disorder, starvation and dehydration, and not for the underlying mental disorder. Dr. A. is not suffering from an eating disorder. Whilst feeding him may make him feel better, it is not treating him for a mental disorder as it would be were he suffering from anorexia nervosa.

  1. On this point I have found the views articulated by the treating clinicians, and in particular Dr. WJ, persuasive. She does not consider that the administration of artificial nutrition and hydration to Dr. A. in the circumstances of this case to be a medical treatment for his mental disorder, but rather for a physical disorder that arises from his decision to refuse food. That decision is, of course, flawed in part because his mental disorder deprives him of the capacity to use and weigh information relevant to the decision. The physical disorder is thus in part a consequence of his mental disorder, but, in my judgement, it is not obviously either a manifestation or a symptom of the mental disorder. This case is thus distinguishable from both the Croydon case and Brady.
  1. I also accept the submissions put forward by Miss Paterson, and acknowledged by the Official Solicitor, that it is generally undesirable to extend the meaning of medical treatment under the MHA too far so as to bring about deprivation of liberty in respect of sectioned or sectionable patients beyond what is properly within the ambit of the MHA. I recognise the need for identifying, where possible, a clear dividing line between what is and what is not treatment for a mental disorder within the meaning of the MHA; but I venture to suggest that in medicine, as in the law, it is not always possible to discern clear dividing lines. In case of uncertainty, where there is doubt as to whether the treatment falls within section 145 and section 63, the appropriate course is for an application to be made to the court to approve the treatment. That approach ensures that the treatment given under section 63 of the MHA will be confined to that which is properly within the definition of section 145 as amended. It would help to ensure that patients with mental disorders are, so far as possible, treated informally rather than under section. Finally, it ensures compliance with Article 8 and provides the patient with a more effective remedy than would otherwise be available, namely a forensic process to determine whether the treatment is in his best interests.
  1. I therefore decline to make a declaration that artificial nutrition and hydration can be administered to Dr. A. under the MHA

Authorising the treatment under the MCA, by interpreting it in light of the Human Rights Act

I liked this argument, it is clever. If the MCA as drafted, puts a Court in a position of not being able to protect the right to life of a person who the Court has determined does not have the capacity to refuse treatment which would save his life, the Court ought to interpret the MCA in such a way that it does NOT clash with the article 2 right to life. And using the powerful tool of s3 (1) Human Rights Act to do so

Under section 3(1) of the Human Rights Act:

“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”

 

  1. The second basis on which the Official Solicitor invites the court to authorise the forcible feeding of Dr. A. is under section 16 of the MCA. He submits that the provisions of the MCA read in compliance with the Human Rights Act and the European Convention permit the court to take this course. Mr. Moon and Miss Street submit, first, that, so far as it is possible to do so, the MCA must be interpreted so as to be consistent with the best interests of the person lacking capacity (section 1(5) of the MCA). Unless the court authorises the forcible administration of artificial nutrition and hydration to Dr. A. he will die. The court is thus under an obligation to interpret its powers in a way that ensures his life is saved.
  1. It is submitted by Mr. Moon and Miss Street, however, that the obligations on the court go further. Under Article 2 of the European Convention of Human Rights “everyone’s rights to life shall be protected by law”. Amongst the duties imposed on the State by Article 2 is the so-called “operational duty” requiring the State in certain circumstances to take preventative measures to protect an individual whose life is at risk: Osman v. United Kingdom [1998] 29 EHRR 245.

 

 

But it is still No

  1. The course proposed by counsel, though in some ways attractive, involves reading into section 16A a provision that would have the effect of fundamentally altering its clear meaning. The scheme of the amendments to the MCA, introduced in 2007, is plain. In certain circumstances defined in schedule 1A, the MHA regime takes precedence over the MCA. No argument has been advanced which has persuaded me to disagree with the assessment of Charles J in Re GJ (supra) that the MHA has primacy over the MCA and, in particular, his observation at paragraph 96 of the judgment:

“Case A is a clear indication of the primacy of the MHA 1983 when a person is detained in hospital under the hospital treatment regime and it would seem that when it applies P cannot be deprived of liberty under the MCA in a hospital for any purpose.” [my emphasis]

In such circumstances, and notwithstanding the uncompromising words of Lord Nicholls quoted above, any court, particularly a Judge at first instance, must at least hesitate before reading into a statute words that would have the effect of fundamentally altering its meaning and undermining the apparent scheme of the legislation. He should hesitate still further when the proposed reading in has not been the subject of full argument on both sides nor referred to the relevant Government department. Despite the great efforts of counsel, I am far from satisfied that all the consequences of their proposed reading in of words into section 16A have been fully identified. It may be that, with further thought, an alternative reading or reinterpretation may seem prevalent. For example, it may be thought that, if any statute or provision needs to be reconsidered to ensure capability with ECHR in this context, it should be the MHA rather than the MCA.

  1. I acknowledge, of course, my obligation under section 6(1) of the Human Rights Act not to act in a way that is incompatible with that Act. Were it not for the availability of the inherent jurisdiction, I might be more inclined to adopt the course proposed above or to arrange further hearings before making a decision. Happily, however, for the reasons I will now explain, I am satisfied that the powers available to me under the inherent jurisdiction enable me to comply with my obligations under that section.

Inherent jurisdiction then?

The Judge set out the body of authority which endorses the view that the Court hold an inherent jurisdiction in relation to adults just as it does for children, ending with the most recent authority.

90.   Confirmation is provided by the more recent decision of the Court of Appeal in DL v. A Local Authority [2012] EWCA Civ. 253 in which Davis LJ said at paragraph 70:

“Where cases fall precisely within the ambit of the MCA 2005 and are capable of being dealt with under its provisions there is no room for – as well as no need for – invocation of the inherent jurisdiction. However, even in the case of an adult who lacks capacity within the meaning of the MCA 2005, it appears that the inherent jurisdiction remains available to cover situations not precisely within the reach of the statute.”

  1. The issue is considered at greater length in the judgment of McFarlane LJ who, in reaching the same conclusion, pointed out the MCA contains no provision restricting the use of the inherent jurisdiction in terms of those found in section 100 of the Children Act 1989, “Limited use of Wardship and Inherent Jurisdiction in matters relating to Children”. On this, McFarlane LJ said at paragraph 61:

“It would have been open to Parliament to include a similar provision, either permitting or restricting the use of the inherent jurisdiction in cases relating to the capacity to make decisions which are not within the MCA 2005. In the absence of any express provision, the clear implication is that if there are matters outside the statutory scheme to which the inherent jurisdiction applies then that jurisdiction continues to be available to continue to act as the ‘great safety net’ described by Lord Donaldson.”

In essence, if Parliament wanted to stop the use of inherent jurisdiction to creatively solve problems, they need to legislate this explicitly.

This is the cunning argument deployed  (which involves assuming that when the MCA says “Court” it means only the Court of Protection, not the High Court, even though in practice, as here, it is likely to be the same Judge, sitting in the same room, who just metaphorically puts on a different hat for a moment.

 

93.   (1) The prohibition on making an order which authorises the person being deprived of his liberty is expressly restricted to the Court of Protection exercising its statutory jurisdiction under the MCA and is not, but could have been, extended to the High Court exercising its inherent jurisdiction.

(2) Following McFarlane LJ in DL, the clear implication is that Parliament did not intend to prevent the High Court exercising its jurisdiction to make an order in the best interests and in order to uphold the Article 2 rights of a person lacking capacity in the circumstances of a case such as this.

(3) Furthermore, Parliament cannot have intended to remove the safety net from a person lacking capacity who requires the orders sought to be made in order to prevent his death.

(4) The relevant concept is his ineligibility to be “deprived by this Act” (section 16A(1) and schedule 1A at paragraph 2).

(5) If a person is ineligible to be deprived of his liberty by the MCA, section 16A provides that “the court may not include in a welfare order provision which authorises the person to be deprived of his liberty”. In this provision:

(a) “The court” means the Court of Protection; and

(b) “the welfare order” means an order under section 16(2)(a) of the Mental Capacity Act by the Court of Protection.

I agree with those submissions.

So, having determined that the Court had power under the Inherent Jurisdiction (which is like the legal equivalent of Duct Tape, or perhaps more accurately Polyfilla to cover up the cracks), the Judge then had to consider whether he should go on to use that power.

  1. the court, as a public authority, cannot lawfully act in a way that is incompatible with a right under ECHR. I accept the submission that I am under an operational duty under Article 2 to protect Dr. A., a man who, as I have found, lacks capacity to decide whether to accept nutrition and hydration against the risk of death from starvation. By making the orders sought by the Trust under the inherent jurisdiction, I will be complying with that operational duty.
  1. In all the circumstances, I hold that this court has the power under its inherent jurisdiction to make a declaration and order authorising the treatment of an incapacitated adult that includes the provision for the deprivation of his liberty provided that the order complies with Article 5. Unless and until this court or another court clarifies the interpretation of section 16A of the MCA, it will therefore be necessary, in any case in which a hospital wishes to give treatment to a patient who is ineligible under section 16A, for the hospital to apply for an order under the inherent jurisdiction where the treatment (a) is outside the meaning of medical treatment of the MHA 1983 and (b) involves the deprivation of a patient’s liberty.
  1. Under that jurisdiction, I am satisfied, for the reasons set out above, that an order for forcible feeding of Dr. A. is in his best interests. I therefore make the orders sought by the applicant Trust, that is to say declaring that it shall be lawful for the Trust clinicians to provide Dr. A. with artificial nutrition and hydration and to use reasonable force and restraint for that purpose, and further declaring that, insofar as those measures amount to a deprivation of liberty, they shall be lawful.

An elegant fix of a mess caused by Parliament.

There is a postscript update on Dr A, which may be of interest

98.   On 1st July 2013 (before the transcript of the judgment was finalised) the Trust notified my clerk that Dr A had returned to Iran, having made, in the doctors’ opinion, a capacitous decision to do so. I received statements from Drs R and WJ and correspondence from the parties, detailing the clinical decisions and events, which preceded his departure. I am informed that Dr A had continued to be provided with artificial nutrition and hydration requiring restraint. He also received amisulpride, an anti-psychotic. His mental state gradually improved, in response to the medication. Dr A started drinking and eating voluntarily on 8 and 10 May respectively. His weight returned to a level within a normal range. The Trust states that Dr A first mentioned he was returning to Iran on 23 May 2013. He made the final decision on 4 June 2013; after taking medical advice and legal advice from his immigration solicitor. On 14th June 2013 Dr WJ rescinded Dr A’s detention under section 3 MHA; his mental condition having continued to improve. He returned to Iran on 24 June 2013. I will now make an order concluding these proceedings, discharging the declarations and the order for a review hearing.

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an englishwoman’s home is her castle (unless she is 82) ?

Posted on September 28, 2012 by suesspiciousminds

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)[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

    1. 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”.

 

    1. 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.

 

    1. When addressing questions of capacity, the Court must apply the following principles.

 

    1. 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).

 

    1. 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.

 

    1. 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.

 

    1. 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”.

 

    1. Fifth, I bear in mind and adopt the important observations of Macur J in LBL v RYJ [2010] 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.”

 

    1. Sixth, a person is not to be treated as unable to make a decision merely because she makes an unwise decision: s. 1(4). Paragraph 4.30 of the Code of Practice states: “It is important to acknowledge the difference between

 

  • 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.”

    1. 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 [2005] EWHC 144 (Fam) [2005] 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.

 

  1. There is a further point, to which I alluded in an earlier decision in PH v A Local Authority, Z Ltd and R [2011] 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 [2007] EWHC136 (Fam) [2007] 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.

 

KK’s evidence

    1. Unusually, although not uniquely, this court received evidence from KK herself to assist in determining the question of capacity, not only in a written statement but also orally in court.

 

    1. 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.

 

    1. Turning to nutrition and hydration, KK gave the following evidence in her statement:

 

“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.”

    1. 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”.

 

    1. As to her future care needs, KK observed as follows in her statement:

 

“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.

    1. 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.

 

  1. 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.

    1. 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.

 

    1. 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.

 

    1. 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.

 

    1. 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.

 

    1. 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.

    1. 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.

 

  1. 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.

 

 

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