Case Summary: Tower Hamlets London Borough Council v PB [2020] EWCOP 34

Tower Hamlets London Borough Council v PB (by his Litigation Friend, the Official Solicitor) [2020] EWCOP 34

• Mental Capacity Act 2005 (“the MCA”)
• Capacity assessment
• Alcohol dependence

When assessing P’s capacity under the MCA, capacity assessors and practitioners should be mindful that:

• The presumption of capacity and the importance of personal autonomy is key.
• There is a distinction between the inability to make a decision and the making of a decision which objectively would be regarded by others as unwise.
• At its crux, the issue is whether P has an inability to make a decision.
• For P to lack capacity, there needs to be a causal link between the impairment or disturbance in the functioning of the mind and the inability to make a decision. It’s not enough for the impairment or disturbance to be one of a number of possibilities or partly responsible for being unable to make the decision.
• It is not necessary for P to use or weigh every detail of the respective options available to them to demonstrate capacity. The salient factors are key. This includes the reasonably foreseeable consequences. Can P use/weigh sufficient elements of the relevant information to ultimately be able to make a decision?
• In assessing weighing and using, you are considering P’s ability to engage in the decision-making process itself and to see how the various parts of the relevant information relate to one another.
• If P is able to use and weigh the relevant information, it is a matter for P as to what weight he/she places on each aspect of relevant information. P should not be considered to lack capacity because he/she has applied his/her own values or outlook.
• “Relevant information” includes the reasonably foreseeable consequences of deciding one way or another, or failing to make the decision.
• Understandable professional concern must not lead to the assessor setting the bar for capacity too high.

For those with substance dependence:

• To expect an a person who is dependent on alcohol who continues to drink to be required to acknowledge beyond doubt that they are unable to control their drinking and to such a degree that it has become a certain fact that they will drink to excess if not supervised, is too challenging and high a test for capacity. Such a position is difficult to reconcile with the fundamental principles of the MCA and would render most persons with substance dependence as lacking in capacity.
• Seriously overestimating their own ability to keep a substance dependence under control, minimisations, rationalisations and justifications in the face of all evidence to the contrary are typical of people with substance dependence. Not every person with substance dependence in some degree of denial can be regarded as incapacitous.

Importantly:

• ‘Coercion’ (by way of persuasion with the use of force or threat) has no place in the Court of Protection. If P lacks capacity, measures to facilitate compliance with a regime to which P is opposed should be proportionate, involving the minimal level of restraint or restriction for the shortest period of time.

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.

• Whilst the Local Authority had suggested that PB may not be deprived of his liberty, as he was content to live where he was on the proviso that he was permitted to drink – the Judge considered that the arrangements were a deprivation of liberty as they curtail PB’s choices and require him to exercise guile and deception to achieve his own wishes.
• Setting the bar too high (in terms of “relevant information”) erodes the space between an unwise decision and an incapacitated one.

The Judge reiterated the following:

• The obligation of this Court to protect P is not confined to physical, emotional or medical welfare, it extends in all cases and at all times to the protection of P's autonomy;
• The healthy and moral human instinct to protect vulnerable people from unwise, indeed, potentially catastrophic decisions must never be permitted to eclipse their fundamental right to take their own decisions where they have the capacity to do so. Misguided paternalism has no place in the Court of Protection;
• Whatever factual similarities may arise in the case law, the Court will always be concerned to evaluate the particular decision faced by the individual (P) in every case. The framework of the Mental Capacity Act 2005 establishes a uniquely fact sensitive jurisdiction;
• The presumption of capacity is the paramount principle in the MCA. It can only be displaced by cogent and well-reasoned analysis;
• The criteria for assessing capacity should be established on a realistic evaluation of what is required to understand the ambit of a particular decision by the individual in focus. The bar should never be set unnecessarily high. The criteria by which capacity is evaluated on any particular issue should not be confined within artificial or conceptual silos but applied in a way which is sensitive to the particular circumstances of the case and the individual involved. The professional instinct to achieve that which is objectively in P's best interests should never influence the formulation of the criteria on which capacity is assessed;
• It follows from the above that the weight to be given to P's expressed wishes and feelings will inevitably vary from case to case.