England and Wales Court of Protection Decisions

Neutral Citation Number:  [2017] EWCOP 13

Case No: 1278938

IN THE COURT OF PROTECTION

The Combined Court Centre

[Town stated]

15th June 2017

Before

THE HONOURABLE MR JUSTICE BODEY

__________

DM

-v-

Y CITY COUNCIL

DM -v- Y CITY COUNCIL

__________

Transcribed from an audio recording by

J L Harpham Limited

Official Court Reporters and Transcribers

Penistone One

St Mary’s Street

Penistone S36 6DT

__________

APPEARANCES

For the Applicant through his Litigation Friend, the Official Solicitor:  Mr Bellamy

For the Respondent Local Authority:  Mr de Forges

__________

APPROVED JUDGMENT

            MR JUSTICE BODEY:

            A - Introductory

1.          This is an application brought on behalf of an incapacitous man whom I shall call “DM” under Section 21(A) of the Mental Capacity Act 2005.  It is nominally by way of a challenge to a Standard Authorisation dated 3rd February 2017 authorising the deprivation of DM’s liberty at a care home [“the Home”] for six months expiring on 2nd August 2017.  The underlying issue, however, is: (a) whether DM, who is currently an abstinent alcoholic, should continue to reside and be cared for at the Home, a care home which forbids alcohol, or (b) whether he should be moved, as he wishes to be, to a home which does allow the consumption of alcohol.

2.          The case has been thoughtfully argued by Mr de Forges on behalf of the relevant local authority, and by Mr Bellamy on behalf of DM’s litigation friend, the Official Solicitor.  I have read all relevant parts of the Court bundle and heard evidence from DM’s social worker, Christopher Lee, who has also made a number of written statements.  DM was offered the opportunity to come to Court by Mrs Rhodes, the solicitor instructed by the Official Solicitor, and to meet the Judge; but he did not wish to do so.

3.          DM was born in the late 1940's and is aged 69.  He has been in the Home since 2012 but has repeatedly expressed a wish to leave.  The Home is purpose-built with quite a large number of en-suite bedrooms for people with alcohol related difficulties.  Residents there are not permitted to drink alcohol.  DM has 24/7 supervision.  He is a [origins stated] who was born into a [occupation stated] family.  Both his parents have died.  He does have siblings who are believed to live in [redacted], but with whom he does not have any contact.  He has no friends or relatives except for one friend referred to below.  As a younger man he worked in the [redacted] industry in a number of countries, including here in England.

4.          In 2004, having been admitted to hospital for something unrelated to this case, DM was diagnosed with Korsakoff’s Syndrome, a form of alcohol-related dementia.  It is described as a chronic memory disorder caused by severe deficiency of vitamin B1.  Most commonly it is due to alcohol abuse.  It also causes problems with learning new information.  Records going back to that hospital admission in 2004 were to the effect that DM had been neglecting his personal hygiene and nutrition and had been living in squalid conditions.

5.          Following DM’s discharge from hospital in 2004, he moved into a care home but was unable to settle.  He disengaged from services and is thought to have moved to [city stated].  However, by 2011 he had returned to [the North East] where he was assisted by a local charity in obtaining access to housing.

6.          In January 2012 DM was admitted to hospital with a fracture of his right hip, seemingly following a fall.  A CT scan showed shrinkage of the brain and reduced blood supply to it.  He could not remember his current location nor his home address.  He was considered by an occupational therapist to be at risk of falling because of his tendency to forget his stick.  Social workers who visited his property recorded that it had no heating; that the kitchen did not seem to have been being used; that DM had been sleeping on an upturned bed; and that one room was filthy with excrement.  DM was incontinent of urine and was prone to infections.  His toe nails were so long that he had difficulty walking.  He had significant rent arrears.  The view of the professionals at that time was that he needed to be in residential care and such arrangements were made.  Different dates appear in the records for precisely when DM was discharged from hospital; but the surest date is that he arrived at the Home on 8th March 2012.  He has lived there ever since, so for just over five years.  It is noted in records that he was reviewed by the hospital social worker on 19th April 2012, by which time he “.... appeared to have settled well”.  At that time he was saying that he wished to stay, and it appears that he probably went to the Home by agreement.  Given the Home’s strict “no alcohol” policy, DM has been abstinent now for some five years, with only one known lapse, referred to below.

7.          Initially DM was able to go out into the local community as he wanted.  On 5th September 2014 however, he became confused whilst he was out.  Staff had to call upon the assistance of the Police to bring him back to the Home.  Since that time he has not been allowed access to the community on his own.  In August 2015, whilst out in the community with a member of staff, DM got away from that individual and purchased beer which he drank.  Again the Police were called to help return him to the Home.  There is no evidence of any alcohol consumption by DM since then.

8.          As at the present time DM requires support, assistance, prompting and supervision with virtually all aspects of his daily living, including his health and personal care needs.  He does not actively participate in social activities at the Home and has declined to discuss with staff any hobbies or interests which he may have.  He does sit close by other residents and takes an interest in what they are saying and doing, but only on the periphery.  Significantly he has a friendship with a woman at the Home whom I shall call “B”.  She is a recovered alcoholic in about her 40's who is a long-term resident of the Home.  She was there when DM arrived.  She is wheelchair-bound.  She and DM like to talk in a casual day to day way in the public areas of the Home, and he likes to push her wheelchair for her and to get her a drink (ie of tea, coffee or such-like).  Mr Lee thinks DM sees himself as something of a father figure to B.  She too is abstinent of alcohol as per the policy of the Home.  There are no plans as far as Mr Lee knows for her to move from the Home.

9.          DM has consistently expressed a strong wish to leave the Home and to live independently.  He believes that he could do so and would not require any support.  He feels he would then be able to drink alcohol.  He does not understand why he is kept at the Home, and does not remember why he was admitted in the first place, nor how he had been neglecting himself and his home, as referred to above.  He denies he has any problem at all with alcohol because he does not recognise or realise that he does have.  He is reported in the documents as speaking very frequently about wishing to drink alcohol and going to the pub.  Nevertheless staff at the Home consider that he is well settled in the environment there.

10.        On the 11th January 2017 DM was interviewed by Darren Richardson, the Best Interests Assessor, in respect of the then pending deprivation of liberty authorisation which was made on 3rd February 2017.  Asked what he thought of the Home, he told Mr Richardson that staff were looking after him.  He said he was happy there, although he would like to live alone at his own place.  He said he did not know why he had been placed in a care home and could not remember being admitted.  He thought he would be able to live alone without any support.  He said he would then be able to buy alcohol and that this “.... would make him happy”.  On 27th January 2017 he was seen by Mrs Rhodes, the solicitor instructed by the Official Solicitor, and I have read her attendance note of that date.  He told her that “.... it’s all right” at the Home, and that he likes the food there.  He added that it was important to him to be able to have a drink.  When Mrs Rhodes asked him what he felt about such drinking, if it would mean that his life expectancy would be much shorter, he replied “.... everybody has to die some time”, and he was dismissive of the suggestion that drinking alcohol would make him ill.

11.        On the question of capacity there are before me two reports by Doctor Ahmed, consultant psychiatrist, one dated 8th June 2016 and an Addendum dated 31st August 2016 answering various questions posed on behalf of the Official Solicitor.  Doctor Ahmed notes comments in the records going back to 2012 about “liver disease due to long term alcohol misuse”, together with a history of Alcohol Dependence Syndrome noted in 2014.  Statements seen by Doctor Ahmed are recorded by him, Doctor Ahmed, as suggesting an alcohol intake by DM of some ten pints daily, although the form of alcohol is not stated in the records.  He, Doctor Ahmed, notes carers reporting DM speaking about the pub and about drinking on a daily basis.  Further records seen by him, Doctor Ahmed, suggested poor road-safety awareness, with a high risk of DM’s getting lost if out in the community.  Doctor Ahmed spoke of ongoing issues whereby DM requires considerable prompting to deal with basic self care issues, for example to shower, to change his clothes or brush his teeth.  DM is recorded by Doctor Ahmed as saying that he has not got any teeth, which is not, as I understand it, the case.

12.        On Doctor Ahmed’s meeting DM, DM said even before any introductions “.... I am only interested in leaving here, can you get me out of here?”.  DM was reluctant to engage in discussion with Doctor Ahmed except about things which he felt might secure his being able to leave the Home.  He, DM, emphatically denied to Doctor Ahmed any history of excessive alcohol consumption, or any mental health issues relating to memory.  He said quite clearly that he had managed perfectly well living independently and wished to revert to independent living. Doctor Ahmed tested DM’s cognition and found what he regarded as some improvement in the period of time since a similar (but not identical) test performed back in 2012.

13.        In his conclusions Doctor Ahmed was very clear that DM lacks capacity to litigate, and to make decisions on his care and/or residence, and regarding the consumption of alcohol.  Those opinions were amplified and reiterated in Doctor Ahmed’s Addendum report of 31st August 2016.

14.        Doctor Davis is a consultant physician gastroentorologist and hepatologist who provided the Official Solicitor with a report dated 31st May 2016.  The latest ultrasound scan in respect of DM suggested to Doctor Davis the presence of cirrhosis of the liver.  In his report he explains that cirrhosis of the liver is at the end stage of chronic liver disease.  He sets out graphically how cirrhosis works and how it can rapidly advance, with (and I will omit the technical details) very unpleasant physical consequences leading ultimately to death.

15.        Doing his best to assist as to DM’s life expectancy, which question can only ever be speculative, Doctor Davis generalises that patients with cirrhosis of the liver have an expectancy of about ten years if they remain abstinent from alcohol.  That reduces to three years if alcohol consumption continues.  For someone like DM, however, who has been cirrhotic for many years, Doctor Davis estimates that life expectancy with abstinence from alcohol would be of only about seven years.  Even if DM were to drink at a relatively low level of about 14 units of alcohol per week, it is Doctor Davis’s opinion that his life expectancy would still be reduced down to three years or so.  Those opinions were expressed in May 2016; so one year of the respective estimated life expectancies has already passed.

16.        I accept the expert evidence of both Doctor Ahmed and Doctor Davis.  In particular, it is abundantly clear, given the cognitive deterioration which DM has sustained from chronic abuse of alcohol, that DM has no insight or comprehension as regards his alcohol problem, nor as to his proven inability to care adequately for himself.

17.        Mr Lee has been DM’s social worker since October 2015.  He has visited him about six times since then.  He has taken him to one alternative care home where alcohol is permitted, although DM was not particularly interested in being shown around and went into the lounge to watch the television.  On arrival he immediately expressed the hope that he could have a drink.  Subsequently, when asked what he thought about the home, he said that he would need to live there for about a month before being able to say.  Mr Lee tried to encourage DM to visit a second alternative home which permits alcohol, but DM was not interested in going to see it.  He ended up saying words to the effect “you decide”.

18.        Mr Lee explained to me how DM really wants to move to a flat.  This, however, is not an option since the local authority is not willing to commission the necessary support services that DM would require in order to live independently.  This seems a reasonable funding-decision by the local authority, and realistically it is not challenged on DM’s behalf by the Official Solicitor.  Although Mr Lee agreed that on the totality of the evidence DM does have a strong and consistent wish to drink (Doctor Ahmed uses the word ‘compulsion’) he, Mr Lee, does not regard this as being constantly in the forefront of DM’s mind.  Sometimes, Mr Lee told me, DM seems even perhaps resigned to not having alcohol, saying words to the effect “.... I could not afford it anyway: it’s too expensive”.  DM has also said that, if he were able to live independently in the community, he would not resume drinking alcohol; but this is a statement to which Doctor Ahmed says (and I accept) that no realistic weight can or should be attached.

19.        Mr Lee is confident that if DM were permitted to drink at the Home, then he would do so.  He, Mr Lee, described to me DM’s friendship with B in the terms already set out.  It is a day to day relationship.  DM is unwilling to leave the Home on his own (with a member of the staff, but without B) although he will do so if B is being taken out too.  Asked whether it would be possible to arrange ‘contact’ between DM and B, if DM were to be moved to a home where he could drink alcohol, Mr Lee was not confident.  He said it would be necessary to look into the funding and resources required, and that even once a month might be over optimistic.  He was not indeed sure whether, if the break were made, DM would be willing to leave his new care home even to meet up with B.

20.        From his knowledge of DM, from his overall familiarity with the records, and from discussions with staff at the Home, Mr Lee is very firm in his opinion that it would be contrary to DM’s best interests to move him to an alternative home where he, DM, could consume alcohol.  He was sure that the quality of DM’s life would be less good following DM’s inevitable relapse into the consumption of alcohol.  He felt sure that DM’s physical and mental health would decline, giving rise to a variety of problems.  Although he told me that the staff in these sort of homes can deal with challenging behaviours, he felt that DM would himself start to feel poorly which would make him miserable.  When I sought to explore whether there might be some ‘middle way’ whereby modest levels of alcohol strictly controlled by the alternative home might enable DM to drink (but only to an extent whereby the detriment to his health would be contained) Mr Lee expressed firm opposition to the idea.  In his view the consumption of alcohol for someone in DM’s situation, with the damage to his liver and brain already caused by what he spoke of as this ‘disease’, is not real enjoyment, but more to do with managing distress.  In his opinion controlled drinking is not generally a realistic option for people like DM, however much it would give them pleasure to drink.  Mr Lee told me that he had observed the residents at the possible alternative care home to which he took DM, as above.  They were, as he put it, sitting around in various stages of intoxication.  Contrary to a social drinker’s perception that alcohol aids sociability, Mr Lee did not consider it would be realistically likely to work in that way in the context of drinking in the sort of care home which he himself looked round.

21.        Mr Bellamy has helpfully set out the relevant law under the heading “legal principles” at paragraphs 29 to 41 of his Position Statement dated 11th June 2017.  There is little point in my replicating those principles which are taken from the Act, and from the relevant authorities.  I adopt what he has written.  A major consideration under S4 of the Act is the individual’s past and present wishes and feelings and the beliefs, values and other factors which the individual would be likely to consider if he had the capacity to do so.  Plainly the weight to be attached to those wishes and feelings is case specific and fact specific.  Everything depends on the individual circumstances of the particular person concerned and the particular case.  I have to bear in mind how near to the borderline of capacity DM is; the nearer the line the more weight may be attached to his wishes and feelings.  I must also pay regard to the strength and consistency of the views which he has expressed about being able to drink, together with the possible adverse impact on him (anger, disappointment, frustration etc) of knowing that his wishes and feelings have not been allowed to prevail.

22.        The purpose of the ‘best interests test’ is to look at matters from the incapacitated person’s point of view (Aintree University Hospitals NHS Foundation Trust -v- James [2013] UKSC 67).  As Munby J, as he then was, said in Local Authority X -v- MM & Another [2007] EWHC 2003 at paragraph 120: “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 and being willing to tolerate manageable or acceptable risks as the price appropriately to be paid in order to achieve some other good - in particular to achieve the vital good of the elderly or vulnerable person’s happiness.  What good is making someone safer if it merely makes them miserable?”.

F – Discusion

23.        If DM remains at the Home it is probable that he will now live for another six years or so.  Gradually his physical health will probably decline, although his mental health may stay relatively stable for so long as he is abstinent.  It may of course deteriorate in any event.  No one can tell.  He is likely to continue to seek to live independently and to have a strong wish to drink alcohol.  All being well he would be able to continue his relationship with B.  If he stays at the Home, where he appears now to be reasonably well settled (in spite of his wish to drink) he would not be faced with the risks associated with resettling somewhere else.

24.        If DM moved to a home where he could drink, then his life expectancy would be reduced from say about six years to perhaps as little as two years.  Superficially, given his wishes and feelings, he would be happier because he would be able to take refuge in drink.  This would however be at the cost of his physical and mental health, which would certainly decline faster than if he were to have remained at the Home.  It is very unlikely that he would be able to drink alcohol in the quantities which he would like, and he might well become angry or agitated if and when limits were imposed by staff.  He would probably still continue to wish to live independently; so that particular element of frustration would pertain wherever he were living.  He would probably lose his relationship with B, but he might or might not make new friendships.  He might have to move placement again if he did not settle, or if his behaviour became so challenging that the new home declined to keep him.

25.        The Official Solicitor submits, and I agree, that this is a finely balanced decision.  I am very conscious of the danger of being too paternalistic faced with such wishes and feelings as these.  When I read the papers my initial reaction was to think that DM’s happiness would perhaps best be served by acceding to those wishes and feelings, such that he should be moved to a home where he could consume alcohol.  The local authority has effectively accepted that it will comply with the Court’s conclusion in this respect and commission a home which permits alcohol if that were the Court’s view of DM’s best interests.  I was very mindful of Mr Justice Munby’s rhetorical question, “What good is making someone safer if it merely makes them miserable?”.  The thrust of the Official Solicitor’s Position Statement was in that direction too.

26.        However having heard Mr Lee’s evidence, which has amplified several points, I have reflected on that original and provisional view, as has the Official Solicitor.  In so doing I have attached much weight to the strength and consistency of DM’s expressed wishes and feelings about alcohol.  It is however far from clear or likely that DM would be content with a limited and controlled quantity of alcohol.  It may very well be, indeed it is more likely that he would become frustrated and perhaps difficult, compounded with the passage of time by his feeling physically worse and suffering gradual cognitive decline.  By moving away from the Home he would largely lose the friendship he has with B, being the only meaningful personal relationship he has in the world.  Mr Lee made the point persuasively that this friendship gives DM a sense of wellbeing (or one might say self-esteem) in a life where essentially he has very little purpose and nothing to do except watch television.  Such a friendship is, in Mr Lee’s view, good for DM’s mental health, and I accept that view.  If DM were to move, and such a move were not to work, then there is no guarantee at all that he could return to the Home, as they have said they would need to reassess him.  They might not want to take him back when he had begun drinking again; or they might simply not have a place available.  I also attach weight to the fact noted above that when asked about the alternative home to which Mr Lee took him to see over, DM gave the very rational answer that he would need to live there for a month or so before knowing what he thought of it.  If his need or wish for alcohol was as strong and compelling as a mere reading of the papers tends to suggest, then one might have thought that he would have jumped more immediately at the opportunity to be moved to a home where he could drink.

27.        In reaching my conclusion I have considered whether there might be any benefit from a trial period at a home which permits alcohol.  In theory there might be, but the downside is that it would give DM a renewed taste for alcohol after five years without it.  If at the end of the trial period it was clearly not going to work as a long term outcome for DM, then it would be frankly cruel to expect him to revert to a dry environment.  So I consider that a form of trial period is not a realistic option.

28.        Having weighed all these various considerations in the balance and putting myself in DM’s shoes in trying to reach a decision which is holistically in his overall best interests, I now find myself satisfied that it would be best for him to remain where he is at the Home.  There would (and this is only an incidental point), as Mr de Forges said, be an irony in moving him to an alternative home where their specific objective is to get residents off alcohol, in circumstances where he, DM, after five years abstinence, would be going there in order to be able to start drinking again.  I consider that for DM to remain where he is would be the least restrictive option for him consistently with his best interests and that, although by moving he would be fulfilling his stated wish, he would be losing much else of real value to his quality of life.

29.        I therefore reject this challenge to the extant Standard Authorisation authorising DM’s deprivation of liberty at the Home.  This accords with the Official Solicitor’s closing submission made through Mr Bellamy.  The authorisation will therefore continue until 2nd August 2017, prior to which it will require renewal under the statutory scheme without reference to the Court.  It has been agreed that both Mr Lee and the Official Solicitor’s representative, Linsey Rhodes, will visit DM at the Home to explain to him the outcome of this hearing, which I realise he will find very disappointing.  I express the hope that it can be put across to him (which will not be easy when he does not see the need for the Court to take any decisions about him) that the Court has weighed up all the “pros” and “cons” in its attempt to give him the best quality of life and such happiness as can be achieved for the rest of his days.  I hope that he may come to accept the decision, now that it has been made after a full review.  If however he does remain aggrieved in the medium to longer term, he can challenge the Standard Authorisation which will or is likely to be made prior to 2nd August 2017.  This Judgment, which is to be transcribed, would then be available to place before the trial Judge hearing any such challenge, should he wish to read it.  DM has an IMCA who would be able to assist him in bringing a challenge, if his continued residence at the Home turned out to be causing him real ongoing frustration and unhappiness.