This judgment is being handed down in private on 26th July 2012 It consists of 28 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of KK must be strictly preserved.
THE COURT OF PROTECTION
Strand, London, WC2A 2LL
B e f o r e :
|- and -
- and -
Leonie Hirst (instructed by Conroys) for the 1st Respondent
The 2nd Respondent was not present or represented
Hearing dates: 17th and 18th May 2012
Crown Copyright ©
Mr. Justice Baker :
Capacity - the law
- 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."
Capacity: the evidence and submissions
The diagnostic test
Professional evidence as to functional test
"KK needs total care and is requiring prompting, support and assistance with all activities of daily living and personal care. She is immobile and doubly incontinent. KK was mildly disoriented with poor attention and calculation. Although she only scored 18 out of 28 on the MMSE, she has good retention. She has allegedly regularly become agitated with regular challenging behaviours such as throwing faeces and persistently shouting inappropriately both day and night. KK denied any such behaviour. She has also become non-compliant with medication as well as her care at times. KK has a limited understanding of the needs of the level of care and support. However, this awareness is significantly limited with no recognition of foreseeable consequences of not receiving the full level of care she is likely to require. For example, despite being wheel-chair bound she believes she is able to walk, to shower herself and to be able to fetch a cup of tea. She is unable to process information around her health, safety and wellbeing. When provided with information about her medical problems, behaviours, her required level of care and her limited capability, she is unable to discuss or debate the consequences with any understanding, either denying matters or trivialising her actions; for example, she initially denied misusing her helpline, but then stated that she was lonely and wanted someone to talk to. She could not see why this was inappropriate and the consequences of such actions on her care or that of others. KK appears to have limited understanding of her circumstances, limitations and care/support requirements. As such it is my opinion KK is unable to process information, especially information about the reasonably foreseeable consequences of deciding one way or another, or failing to make the decision."
This assessment was completed on 18th August 2011. Subsequent mental capacity assessments were carried out by Dr. T on 29th September and 29th December 2011. The description of KK's capacity set out above was substantially repeated in largely the same words and phrasing in those subsequent assessments.
"In my opinion she was unrealistic in her assessment of her ability to cope unaided and unable to grasp the notion that the resources needed to meet her needs simply might not be available. Her ability therefore to take on new or conflicting information was impaired."
Later in her report, Dr. TH added:
"KK does not appear to have a realistic understanding of her own limitations and difficulties and cannot take on board information concerning this from other sources if it conflicts with her own views. She is not able to weigh in the balance advantages of any compromise solutions. KK tended to be dismissive of other options raised."
"She appeared to be attending to the subject matter throughout this conversation but I was not convinced that she was able to hold complex concepts in her mind in order to weigh risks and benefits and to make informed choices regarding her future."
This led Dr. TH to conclude: "I believe on balance that she lacks capacity to make decisions about her place of residence."
"She has the ability to retain the information but not the ability to consider the consequences. She believes that she can just stop using the lifeline if she is given one last chance. This has been tried previously and she hasn't been able to and she hasn't the insight to see that she will not be able to do it next time either and that she has care needs through anxiety which cannot be met by the current care package whereby she is alone for twelve hours overnight. "
Submissions on professional evidence on behalf of KK
"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."
"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.
Submissions on KK's evidence
Further submissions on capacity
Capacity discussion and conclusion
"The fact is that all life involves risk, and the elderly and the vulnerable are exposed to additional risks and to risks they are less equipped than others to cope with. But just as wise parents resist the temptation to keep their children metaphorically wrapped up in cotton wool, so too we must avoid the temptation always to put the physical health and safety of the elderly and the vulnerable before everything else. Often it will be appropriate to do so, but not always. Physical health and safety can sometimes be bought at too high a price in happiness and emotional welfare. The emphasis must be on sensible risk appraisal, not striving to avoid all risk, whatever the price, but instead seeking a proper balance. We must be willing to tolerate manageable or acceptable risks as the price appropriately to be paid in order to achieve some other good in particular the vital good of the elderly or vulnerable person's happiness and dignity. The State must be careful to ensure that in rescuing a vulnerable adult from one type of abuse it does not expose her to the risk of treatment at the hands of the State which, however well intentioned, can itself end up being abusive of her dignity, her happiness and indeed of her human rights. What good is it making someone safer if it merely makes them miserable? None at all! And if this is where safeguarding takes us, then is it not, in truth, another form of abuse and, moreover, abuse at the hands of the State?"
Deprivation of liberty the law
"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest of detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational supervision of his lawful detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drugs addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
3. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a Judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation."
"1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
2. Everyone shall be free to leave any country, including his own.
3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society."
"(1) This Act does not authorise any person ("D") to deprive any other person ("P") of his liberty.
(2) But that is subject to
(a) the following provisions of this s., and
(b) s. 4B [concerning life-sustaining treatment].
(3) D may deprive P of his liberty if, by doing so, D is giving effect to a relevant decision of the court.
(4) A relevant decision of the court is a decision made by an order under s. 16(2)(a) in relation to a matter concerning P's personal welfare.
(5) D may deprive P of his liberty if the deprivation is authorised by Schedule A1 (hospital and care home residents: deprivation of liberty)."
"in proclaiming the "right to liberty", paragraph 1 of Article 5 is contemplating the physical liberty of the person; its aim is to ensure that no one should be dispossessed of this liberty in an arbitrary fashion the paragraph is not concerned with mere restrictions on liberty of movement; such restrictions are governed by Article 2 of Protocol No 4 ... In order to determine whether someone has been "deprived of his liberty" within the meaning of Article 5, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question ...
The difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance. Although the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion, the Court cannot avoid making the selection upon which the applicability or inapplicability of Article 5 depends."
(1) restraint is used, including sedation, to admit a person to an institution where that person is resisting admission (although "restraint by itself is not deprivation of liberty" and "neither the presence or absence of a lock is determinative", per Munby LJ in Cheshire West at paras 23 and 37 respectively);
(2) staff exercise complete and effective control over the care and movement of a person for a significant period;
(3) staff exercise control over assessments, treatment, contacts and residence;
(4) a decision has been taken by the institution that the person will not be released into the care of others, or permitted to live elsewhere, unless the staff in the institution consider it appropriate;
(5) a request by carers for a person to be discharged to their care is refused;
(6) the person is unable to maintain social contacts because of restrictions placed on their access to other people;
(7) the person loses autonomy because they are under continuous supervision and control.
"38. The emphasis upon the concrete situation, the context, is obviously important but in truth it does little more than describe a forensic process. Reference to the degree and intensity of the restriction no doubt gives some indication of the principle in play but it hardly provides a benchmark or yardstick by which to evaluate the circumstances and assess whether or not there is a deprivation of liberty. And the call to examine the facts can too easily lead to the worrying and ultimately stultifying conclusion that the decision in every case can safely be arrived at only after a minute examination of all the facts in enormous detail.
39. This cannot be right. There must be something more which enables us to pursue a more focussed and less time-consuming enquiry. In my judgment there is. The task is to identify what it is we are comparing X's concrete situation with. In short, what is the relevant comparator?"
"In determining whether or not there is a deprivation of liberty, it is always relevant to evaluate and assess the 'relative normality' (or otherwise) of the concrete situation . But the assessment must take account of the particular capabilities of the person concerned. What may be a deprivation of liberty for one person may not be for another. In most contexts (as, for example, in the control order cases) the relevant comparator is the ordinary adult going about the kind of life which the able-bodied man or woman on the Clapham omnibus would normally expect to lead . But not in the kind of cases that come before the Family Division or the Court of Protection. A child is not an adult. Some adults are inherently restricted by their circumstances. The Court of Protection is dealing with adults with disabilities, often, as in the present case, adults with significant physical and learning disabilities, whose lives are dictated by their own cognitive and other limitations . In such cases the contrast is not with the previous life led by X (nor with some future life that X might lead), nor with the life of the able-bodied man or woman on the Clapham omnibus. The contrast is with the kind of lives that people like X would normally expect to lead. The comparator is an adult of similar age with the same capabilities as X, affected by the same condition or suffering the same inherent mental and physical disabilities and limitations as X. Likewise, in the case of a child the comparator is a child of the same age and development as X."
"In determining whether or not there is a deprivation of liberty, it is legitimate to have regard both to the objective 'reason' why someone is placed and treated as they are and also to the objective 'purpose' (or 'aim') of the placement . Subjective motives or intentions, on the other hand, have only limited relevance. An improper motive or intention may have the effect that what would otherwise not be a deprivation of liberty is in fact, and for that very reason, a deprivation. But a good motive or intention cannot render innocuous what would otherwise be a deprivation of liberty. Good intentions are essentially neutral. At most they merely negative the existence of any improper purpose or of any malign, base or improper motive that might, if present, turn what would otherwise be innocuous into a deprivation of liberty. Thus the test is essentially an objective one."
" [T]he purpose behind the measure in question is not mentioned in [previous judgments of the European Court] as a factor to be taken into account when deciding whether there has been a deprivation of liberty. Indeed, it is clear from the Court's case-law that an underlying public interest motive, for example to protect the community against a perceived threat emanating from an individual, has no bearing on the question whether that person has been deprived of his liberty, although it might be relevant to the subsequent inquiry whether the deprivation of liberty was justified under one of the subparagraphs of Article 5(1) . The same is true where the object is to protect, treat or care in some way for the person taken into confinement, unless that person has validly consented to what would otherwise be a deprivation of liberty . However, the Court is of the view that the requirement to take account of the "type" and "manner of implementation" of the measure in question enables it to have regard to the specific context and circumstances surrounding types of restriction other than the paradigm of confinement in a cell . Indeed, the context in which action is taken is an important factor to be taken into account, since situations commonly occur in modern society where the public may be called on to endure restrictions on freedom of movement or liberty in the interests of the common good."
"Where does this leave us? And where in particular does it leave the decisions in P and Q and Cheshire West? It is early days and you will understand that I must be careful what I say. A provisional and very tentative view might be that questions of reason, purpose, aim, motive and intention are wholly irrelevant to the question of whether there is a deprivation of liberty; that anything in the domestic authorities (and particular in Cheshire West) which suggests otherwise needs to be reconsidered; that in all other respects P and Q and Cheshire West stand as good law; that none of this affects the correctness of the actual decisions in the two cases; and that none of this is likely to have any decisive effect on the outcome in the general run of cases of the kind with which we are concerned."
Do KK's circumstances amount to a deprivation of liberty?