Strand, London, WC2A 2LL
B e f o r e :
IN THE MATTER OF THE MENTAL CAPACITY ACT 2005
AND IN THE MATTER OF GW
|- and -
|A LOCAL AUTHORITY (1)
B LTD (2)
David Lawson (instructed by Local Authority Legal and Democratic Services) for the First Respondent
Conrad Hallin (instructed by Radcliffes Le Brasseur) for the Second Respondent
Hearing dates: 17th July 2014
Crown Copyright ©
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the applicant and members of her family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Mr. Justice Baker :
i) whether GW has capacity (a) to litigate in the proceedings; (b) to decide whether or not she should be accommodated in a hospital or care home for the purpose of being given care or treatment and (c) to decide whether to leave the unit unescorted;
ii) how the court should approach capacity when considering an application under section 21A of the 2005 Act;
iii) whether the conditions on which GW was provided with care amount to a deprivation of liberty; and
iv) what was in GW's best interests in the event that she is found to lack capacity in relation to the issues identified above.
The district judge gave directions for the preparation of reports as to capacity. Those directions were subsequently amended by the further orders and ultimately listed for a substantive hearing before HH Judge Marston in January 2014.
(1) GW had capacity to litigate in these proceedings;
(2) GW lacked capacity to decide to leave the residential unit unescorted or to make decisions as to her care and residence;
(3) in the light of the decision in the Supreme Court in the Cheshire West, case the regime on the unit amounted to a situation in which GW was subjected to continuous supervision and control, and could not leave without prior approval and support, and therefore amounted to a deprivation of liberty;
(4) the arrangements whereunder GW was unable to leave the unit without prior approval and unaccompanied were in her best interests.
Grounds of appeal
The evidence and the judge's assessment
"GW appears able to manage familiar road safety when she concentrates. However, she does not appear to be able to sustain this concentration for extended periods of time. She has reduced awareness of risks and her problem solving abilities may place her [in] dangers at times, ie the decision to use the road to avoid difficulties with uneven pavements. It has also been noted that GW was aware she was being assessed and this is likely to have affected her performance. Anecdotal observations from other staff have indicated that GW's pedestrian safety is reduced at other times, for example she has stopped in the middle of roads ."
"moreover this would only test declarative knowledge rather than implicit memory, which is the concern and which is typically affected in HD. My value as a psychologist is in establishing cognitive capacity to carry out such behaviours involved in community access and road safety. In my opinion your cognition is compromised to prevent you from adequately weighing up the decision and risks of going out unescorted. "
"GW doesn't have capacity to decide whether or not she should be accommodated in the relevant hospital or care home for the purpose of being given the relevant care or treatment because her HD has caused severe deterioration in her cognition, causing her to be largely unaware of her cognitive difficulties and unable to weigh up the information required in order to make the decision. This conclusion was reached impartially, as was possible, focussing upon her past performance during my cognitive examination at interview and also in scrutinising additional sources of information including interviews with staff, telephone interviews with relatives and from analysis of past assessment reports. "
In addition, Dr Moore concluded that, for the same reason, GW did not have capacity to decide whether to leave the care home unescorted.
"is a litmus test on who she is and on the progress of her condition the answer to which goes right to the core of her identity and lifestyle. On the other hand, the answer is equally important to the respondents in terms of how they carry out their care of her and keep her safe. "
This illustrates that the judge was aware of the importance of this matter for GW. To my mind, it demonstrates that he had taken into account her strong views and evidence.
"However, in oral evidence, Dr Moore and Dr P explained that her significant cognitive deficit is relevant to the assessment of capacity. It is caused by the HD which is an impairment or disturbance in the functioning of the mind or brain and it causes real risks to her when she is out because of the effect it has on her ability to process all the information required for her safety and the safety of others. "
"I also reject the idea canvassed in written submissions by the applicant that the assessments are somehow influenced by a risk averse attitude on the part of the professionals working with GW and giving evidence to me I could not identify anything but proper concern for GW's best interests and desire to assist the court."
"She has reduced awareness of risk and her problem solving abilities may place her in danger at times, which is of course precisely the analysis of the difficulties given to me by both psychiatrists. GW in her written and oral evidence tried to explain or minimize these problems but on this issue I preferred the evidence of the respondent's lay witnesses."
i) The question was of vital importance to GW.
ii) The judge set out the presumption of capacity and the diagnostic and functional test.
iii) The judge referred by name and page reference to the opinion of five separate experts who concluded that GW lacked capacity to decide whether to leave the care home unescorted.
iv) He further referred to examples of the appellant putting herself in danger.
v) He explained that it was argued on GW's behalf that cognitive impairment and lack of insight were not a basis of finding the appellant lacked capacity.
vi) He noted that two experts considered a cognitive deficit is relevant to the appellant's lack of capacity because it showed the effect of her Huntington's disease on her ability to process information.
vii) He stated that he accepted evidence that the position now was worse than when carers noted that she could access the community.
viii) He accepted evidence that the cognitive impairment caused a lack of insight.
ix) He stated that the court had performed the same task and come to the same conclusion.
"The essential requirement is that the terms of the judgment should enable the parties and any appellant tribunal readily to analyse the reason it was essential to the judge's decision."
In this case, although the judgment was relatively short, it was in my view sufficient to explain the judge's reasoning.