"Misguided paternalism has no place in the Court of Protection": capacity and DoLS in one case

The recent case of London Borough of Tower Hamlets v PB concerned a 52-year-old man with a lengthy history of alcohol misuse.  He developed alcohol related brain damage and met the criteria for dissocial personality disorder.  The question was whether he had capacity to consent to his living arrangements. He was accommodated in a supported living placement which involved various restrictions on his ability to access alcohol – including an inability to leave the accommodation without an escort. The local authority’s position was that he lacked capacity to make decisions about his residence and care.

Mr Justice Hayden found that PB had capacity. He emphasised the presumption of capacity as the benchmark and felt there was not sufficient evidence before the court to make a finding that PB lacked capacity. He restated a number of key principles about the process of assessing capacity in his judgment, including:

1. That it is important to identify and define the issue in question.
2. That it is equally important to evaluate the relevant information most likely to inform the decision in question.
3. The ability to weigh and sift the relevant information is intrinsic to the assessment - however, it is not necessary for a person to use or weigh every detail of the respective options available or necessary for them to have every piece of the jigsaw to see the overall picture.
4. Where an individual fails to give appropriate weight to features of a decision that professionals might consider to be determinative, this will not in itself justify a conclusion that P lacks capacity.  If a person is able to use and weigh that information, the weight to be attached to that information is a matter for them.

There was a detailed review of the evidence on capacity and the grounds for the consultant psychiatrist’s conclusions that PB lacked capacity were summarised as follows: “PB did not accept that recent episodes have demonstrated “beyond doubt” that he is unable to control his drinking so that it is in fact certain that he will continue to drink to excess if he is not supervised.”

Mr Justice Hayden held it was “a very challenging test of capacity to expect an alcoholic, who continues to drink, to be required to concede or acknowledge “beyond doubt” that he is unable to control his drinking and to such a degree that it has become a “certain” fact that he will drink to excess if not supervised.  A test which is so absolute and unyielding it is difficult to reconcile with the fundamental principles of the MCA”.  He went on to say that it was also “not easy to reconcile with the body of case law emphasising that the relevant tests in assessing capacity should not be set at a high level.”

He referred back to section 3 (4) of the Mental Capacity Act 2005 which “makes it plain that the material relevant to a decision includes information about the reasonably foreseeable consequences of deciding one way or another, or failing to make the decision”.  The evidence in this case made it clear that PB met this test – which was different from the “certainties” that had been applied by the consultant.

He found PB analysed his dependency on alcohol in a way which is both articulate and rational. PB was clear as to the dire consequences of drinking to excess and although he was unlikely to be able to achieve moderation in his drinking, the potential gulf between his aspiration and the likely reality did not negate the thought processes underpinning his reasoning.

It was felt that the perhaps there was an “understandable professional concern” for PB which had led to the construction of a test for capacity which was too high and motivated by a desire to protect PB. The judge went on to emphasise that “the imperative in these circumstances, is not paternalistically to protect PB’s health and welfare but to respect his autonomy.”  He concluded by reiterating the following key points:

• The obligation of the 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 health 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”.
• All cases will be considered on their individual facts.
• The presumption of capacity is paramount and can only be displaced by cogent and well-reasoned analysis.
• The bar for capacity should never be set unnecessarily high and 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.

Interestingly, Mr Justice Hayden also commented on whether the care arrangements constituted a deprivation of liberty and confirmed they did. The regime was rigorous, PB was unable to leave the unit unescorted and the primary purpose of this was to prevent him from drinking.  A previous trial period of allowing unescorted leave for two hours had not worked well.  

At the time of the hearing, the arrangements had changed somewhat in that PB was left alone in a part of the unit overnight.  Mr Justice Hayden accepted the evidence that PB gained access to alcohol overnight while he was unsupervised.  PB was therefore content to remain in the unit, as long as he was permitted to drink.  Nevertheless Mr Justice Hayden held that these arrangements curtailed his choices and required him to “exercise guile and deception to achieve his own wishes” and therefore still amounted to a deprivation of liberty.