This case is of interest to capacity assessors and practitioners because it provides a helpful reminder of the fundamental principles in assessing capacity, here in relation to a person with alcohol dependence.
Tower Hamlets London Borough Council v PB (by his Litigation Friend, the Official Solicitor)  EWCOP 34
When assessing P’s capacity under the MCA, capacity assessors and practitioners should be mindful that:
For those with substance dependence:
The Court was required to determine whether PB, a man with alcohol dependence and dissocial personality disorder, had capacity to make decisions about where he lived and the care he received.
The Court declined to give prescriptive guidance on the issue of the assessment of capacity of individuals who are alcohol dependent. It recognised the importance of applying the test within the particular circumstances of the individual case. On the facts of this case, the Court did not agree with the Local Authority that PB lacked capacity. The mental capacity assessor had set a test which was too high – in including as relevant information the fact that “beyond doubt” PB was unable to control his drinking, so that it was a fact that he would drink to excess if not supervised. Such a test was absolute and unyielding.
PB analysed his dependency on alcohol in a way which was both articulate and rational. He made the association between the consequences of drinking to excess and the impact on his care arrangements. He reconciled the two in his own mind by his conclusion that he should stay where he was but moderate his drinking to reasonable limits. There was much evidence from PB's history that he was unlikely to be able to achieve that, but the potential gulf between his aspiration to moderation and the likely reality did not negate the thought processes underpinning his reasoning.
The Court held that though PB’s decision might hasten his death and be viewed by others as unwise, PB was entitled to make bad decisions if he capacitously chose to do so, in line with the respect for individual autonomy which runs through the MCA.
In this case, the Court recognised that the imperative was not to paternalistically protect PB’s health and welfare, but to respect his autonomy.
PB was a 52-year-old man with a history of serious alcohol misuse. He had developed alcohol-related brain damage and had been diagnosed with a dissocial personality disorder. He also suffered from chronic obstructive pulmonary disease, Hepatitis C and HIV.
In 2019, following a period of homelessness and a hospital admission, PB was accommodated in a specialised supported living placement with a package of care aimed at restricting his access to alcohol. He was not permitted to leave the unit without an escort. This amounted to a deprivation of his liberty.
PB expressed a wish to continue to drink alcohol but asserted an ambition to achieve moderation.
The requirement for an escort was relaxed for a trial period but on a number of occasions PB returned to the placement appearing to be intoxicated, was abusive to staff and on one occasion he urinated and vomited in his bed. The trial period was terminated. PB often smuggled alcohol into his room and drank it overnight.
The Applicant Local Authority submitted that PB lacked capacity to make decisions about his residence and care because he was unable to understand the relevant facts, including that he was likely to drink to excess, become abusive and thereby lose his accommodation.
The independent expert had revised his consideration of what would amount to the “relevant information” between his first and addendum reports. The expert expanded the relevant information to include that without supervision PB would drink to excess, and that this was likely to result in a cycle of homelessness, self-neglect, hospitalisation, and ultimately death. He concluded that when weighing his decisions PB was unable to use the fact that he did not have control over his drinking.
The Judge reiterated the following:
This case summary was written by Elizabeth Marke, Trainee Solicitor.