England and Wales Court of Protection Decisions

COURT OF PROTECTION

		Royal Courts of Justice Strand, London, WC2A 2LL
		29/06/2018

The Honourable Mr Justice Cohen:

Introduction

1. In this case the patient is CDM, a lady aged 63 years.
2. The Local Authority bring these proceedings seeking declarations as follows:

i) That CDM does not have capacity to conduct the proceedings;

ii) That she should be accommodated at CC (a care home) for the purpose of being given the relevant care or treatment and that she does not have capacity to make such a decision in respect of her accommodation;

iii) That she does not have the capacity to make decisions about her residence;

iv) That she does not have the capacity to make decisions about her care and treatment or, in the alternative that she has fluctuating capacity only;

v) That she has fluctuating capacity to make decisions about her property and affairs;

vi) That she does not have the capacity to make the decision to surrender the tenancy of her home.

3. CDM through the Official Solicitor submits on these matters as follows:

i) That CDM lacks capacity to conduct these proceedings;

ii) That she has the capacity to make her own decision in relation to the question whether or not she should be accommodated in the relevant care home for the purpose of being given the relevant care or treatment.

iii) That she does have the capacity to make her own decision about where she lives, alternatively has a fluctuating capacity;

iv) That she has capacity to make her own decisions about her personal care and treatment, specifically the management of her diabetes, alternatively a fluctuating capacity, to make decisions about her diabetes management;

v) That she has capacity to manage her own affairs and finances;

vi) That she has capacity to make her own decision to surrender her tenancy.

As the hearing progressed it has become clear that I need to consider capacity in relation to residence, treatment and care separately.

Background:

4. I have read and been told little about CDM's early life but it is plain that she has had a difficult life over many years.
5. When aged about 20 she met the man who was to become her husband. They spent their married life in London. At a date that has not been specified her husband, in CDM's words "broke his back and severed his spine which caused him to be a walking quadriplegic." In consequence the couple were eventually given a disability mobility bungalow and it is there that CDM lived for many years until the events of 2017.
6. CDM had when young been diagnosed as diabetic. Social Service records recite how when alive her husband assisted his wife with her health difficulties as best he could and she provided him with assistance with his. They did not have any children and in her words "we built our life here together with our 4 babies" namely their 3 dogs and 1 cat.
7. In June 2014 CDM's husband was admitted to hospital and he died the following month. Whilst he was in hospital CDM was found on the floor of their home in rooms covered in faeces and with 5 dogs in the property. She was very disorientated and unable to stand. She was taken to hospital with a very high blood sugar level. Since that time there have been a number of similar events.
8. CDM has multiple health conditions. Physically, she suffers from type 2 diabetes which requires insulin and a controlled diet. The insulin was administered by district nurses twice a day. However, she has a history of declining insulin or claiming that she has already had insulin when she has not. The condition remains unstable and complex.
9. Other medical conditions are described as hyper-tension and chronic obstructive pulmonary disease. CDM is a smoker. She now complies with her insulin administration but is non-compliant with other forms of medication.
10. She has suffered from a number of diabetic comas which are put down to a combination of poor diet and poor management of diabetes. There have been frequent hospital admissions but also frequent occasions when hospital admissions have been advised but refused by CDM.
11. As a result of unstable diabetes, CDM had the small right toe amputated. Further self-neglect and non-compliance with health professionals continued and the wound on the foot became infected and failed to heal which led to gangrene and then amputation of the lower right leg in May 2017.
12. The amputation was preceded by a hip fracture in November 2016 after which CDM was mobilised. She declined to use a zimmer frame or walking stick or crutches and insisted on using an upside-down broom.
13. Following her return home from hospital in June 2017 there was increasing concern raised about CDM by a variety of professionals. The amputation substantially increased her care needs. She had been until this time attended by the district nurse but also with visiting carers attending on an increasing scale up to four times a day; she was under the care of her General Practitioner and there were various visits by the London Ambulance Service.
14. At a professionals meeting on 28^th June 2017 it was felt that the risks had increased. CDM could not access equipment in the lounge due to furniture obstruction; she refused to sleep in the bedroom since her husband's death and was sleeping on the sofa or in her wheelchair. She refused to use the commode that was provided for her; she was unable to access the porch in her wheelchair; and she had difficulty in keeping the dog mess that at times pervaded the property out of the kitchen area. She was refusing to take some of her medication. Nevertheless, she remained adamant in her wish to remain at home with her animals.
15. The London Ambulance Service record dated 29^th July 2017 notes that she was lacking capacity; that she was sat in vomit and faeces with the floor covered in faeces; she was sleeping on the sofa due to hoarding and was non-compliant with her medication.
16. At a best interests meeting on 12^th September 2017 CDM'S social worker explained that having carried out a capacity assessment she concluded that CDM lacked capacity. CDM was at that time in hospital although she wished to return home on discharge. The conclusion of the meeting was that it was not in her best interests to return home.
17. On 23^rd October 2017 CDM was discharged from hospital to a nursing home. COP proceedings were issued on 23^rd November 2017 and on 18^th January 2018 District Judge Batten ordered that the parties jointly instruct Dr Hugh Series Consultant Old Age Psychiatrist, to assess CDM's capacity.
18. On 4^th April 2018 an urgent authorisation for the deprivation of CDM's liberty was made and she moved to CC care home where she remains. On 11 April a standard authorisation for 6 months was granted. Two of her beloved dogs are with her in the care home; one is housed elsewhere following a dog fight and her cat is in a cattery.
19. The above is a potted history. There were more incidents of the type described above.
20. It is CDM's ardent wish that she should return home to be with her "babies". She is fiercely independent, articulate and determined. I shall deal later in this judgment with her evidence, but she feels "erased" by what has happened, she feels as though she has "lost her very being" and that her life has been taken away.

Chronology of Capacity Assessment:

21. There have been a series of assessments over the course of the past nine months. They are set out at paragraphs 29 onwards of the position statement filed on behalf of the Official Solicitor. I do not consider that I gain very much from the assessments made before September 2017. I think it fair to say that the thrust of the assessments prior to September 2017 was that the professionals considered that CDM had capacity but that from September 2017 the broad consensus was a conclusion that CDM had a lack of capacity preventing her from using and weighing relevant information. At times the underlying diagnoses have differed as have some of the conclusions as to the extent of the lack of capacity.
22. Ms Scott on behalf of CDM directed my attention in particular to several assessments by the ambulance service in which it is reported that notwithstanding the advice from the ambulance service and others that CDM should attend hospital, she refused to be taken to hospital and the ambulance service felt obliged to obey her instructions on the basis that she had the capacity to reach that decision. The last of these was on 10 April 2018 when CDM was in CC care home. However, the records show clearly that the ambulance service had in mind that she was being visited often by district nurses and carers, or was already in a care home, and that she would within a matter of hours be seen again. The ambulance crew could thus be satisfied that they were not leaving CDM unattended for any length of time.
23. Dr Series

Dr Series has met with CDM on three occasions. He says that has advanced his ability to understand her condition albeit that his conclusions have varied to only a limited extent. Rather than go through each of his reports I shall refer to his conclusions as explained in the witness box highlighting what seemed to me to be significant matters.

24. Dr Series is confident ("very certain") that CDM suffers from a personality disorder albeit he is much less certain about the precise nature of the disorder. His diagnosis of personality disorder is the same as made by Dr L-S, consultant psychiatrist, in October 2017. Dr Series describes CDM's disorder as having components of the following;

i) Paranoid Personality Disorder

ii) Dissocial Personality Disorder

iii) Emotional Instability

iv) Histrionic Personality Disorder

v) Dependent Personality Disorder.

25. Aspects of her behaviour which he particularly drew to my attention were:

i) The breadth and nature of allegations, especially of abuse and assault, made against many people who have been trying to help her, particularly carers and hospital staff; her dramatic character. (Paranoid Personality Disorder)

ii) The disregard for the advice of others trying to help her with her care and her lack of concern for the effects of what she does on other people. (Dissocial Personality Disorder)

iii) The extent of her anger and upset at events and on occasions when others would not so react. (Emotional Instability)

iv) Her desire to be at the centre of attention as illustrated by the scene created by her when out shopping and evident in her insistence in talking at very great length and refusing to let others interrupt her in any way and her engagement in protracted discussion which might last for hours on issues relating to her health. (Histrionic Personality Disorder)

v) Her wish to prolong encounters to continue to gain attention. (Dependent Personality Disorder).

26. These matters seem to me to be evidenced in the papers that I have read. Many of them were exhibited by her in the witness box.
27. Dr Series added that there would be an inevitable variation in CDM's mental state arising from the fluctuations in her blood glucose levels as a result of her poorly controlled diabetes, especially in the context of the pre-existing personality disorder. These fluctuations in her diabetic control can cause cognitive impairment as CDM herself accepted.
28. He said that even when her blood sugar levels are in the normal range her personality disorder means that she is sometimes unable to weigh up the risks and benefits of accepting and co-operating with treatment for her diabetes and care; she is capable of understanding and retaining information at least some of the time but is so driven by her deep-seated wish to take control over her own life and make her own decisions that she is sometimes unable to weigh or take into account the risks of any course other than that upon which she is set. In particular she is so determined that she has to be at home with her pets at all costs that she simply cannot contemplate or think about the risks attached to her decision. In my judgment what Dr Series said about her thought processes was confirmed by CDM in the witness box.
29. In his first report Dr Series concluded that CDM had a fluctuating capacity to make decisions about where she should live, but in his oral evidence he modified his opinion to one that she lacked capacity on this crucial issue. This seems to me to be a logical progression in his thought process. When CDM was at home her residence was marked by a number of significant factors:

i) A refusal to accept advice. One further example is her refusal to use the commode that was provided. She would insist on going to the toilet notwithstanding that she could not get her wheelchair into the bathroom, thus forcing herself to travel on only one leg without the use of crutches. The inevitable result was that she had a series of falls to the floor from which she could not get up until found by carers in a mess.

ii) She was on occasions reluctant to accept the help of the carers. So difficult did she become with them that on occasions she refused them entry and they had to visit her in pairs because of the allegations that she made against them. She agreed that at times she refused to let them get on and do their job with an inevitable impact on her living conditions which at times can only be described as squalid.

iii) She would not accept the advice of caring medical professionals to go to hospital.

30. Dr Series concluded on the matters in issue as follows:

a) Capacity to conduct proceedings: lack of capacity.

b) Capacity to make her own decision in relation to whether or not accommodated in the relevant care home for the purpose of being given the relevant care or treatment: fluctuating.

c) Capacity to decide whether she goes back to her own home: lack of capacity, albeit that she would have capacity if the issue was the choice between different care homes. I agree with Ms Scott that this second option is immaterial.

d) Ability to decide on her care and treatment: fluctuating

e) Managing her own finances: fluctuating

f) Capacity to surrender the tenancy of her home: lack of capacity

31. Ms S:

She is the allocated social worker. It was she who over the course of the summer of 2017 concluded that CDM had lost capacity and that the making of unwise decisions had crossed from those made with capacity but which were unwise to those made without the ability to use or weigh information. She felt that capacity had diminished after her discharge from hospital following the amputation of her leg and that the risks had increased without any ability of CDM to consider them.

32. Ms S felt that CDM had lost the ability to think about decisions and weigh up the relevant factors. She would avoid subjects and not answer questions put to her. Dr Series had had the same experience and that was also evident when CDM gave evidence to me. Ms S said that CDM could manage simple decisions such as what she was to wear or eat but that on dealing with major or complex matters she lacked capacity. She said that this was not a fluctuating capacity. True it was that on good days she would apparently be able to consider matters but the next day she could not recall what had been agreed and changed her mind. This she felt was not a fluctuation but a lack of capacity.
33. She said that if CDM went home it would be likely to result in a recurrent situation. Her personality disorder makes it very difficult to provide her with support when she needs it and she will not take advice. Another example that she gave was CDM's attitude towards a prothesis. She had been referred for the provision of an artificial limb and had had at least two assessments. This was presumably because she wanted to have an artificial limb but this plan has had to be shelved because she was unwilling to use anything other than the broom head as a crutch when the leg was removed or when support was required.
34. Ms S's conclusion on the issues was as follows:

i) Capacity to conduct proceedings: Incapacity

ii) Residence: Incapacity

iii) Care and treatment: Lack of capacity

iv) Property and affairs: Lack of capacity

v) Surrender of tenancy: Lack of capacity.

35. CDM:

CDM had provided a statement and I have also read the notes of interviews which she has had with the solicitors instructed by the Official Solicitor. CDM wished to give evidence before me in the same way as other witnesses and she duly did so. She made it very clear that she wanted to go back to her home. She said "my home is my life. It is everything we put together. It is almost as if they have erased me completely".

36. She said that she has capacity except when she was hyper-glycaemic. She wanted to be back in her own environment with her animals. She said that "they" were using the Mental Capacity Act to stop her going home simply because they did not want her back at home. "They" wanted their own ends.
37. She made serious complaints against hospital staff and against some of the carers. She said that she was physically, mentally and sexually abused by them. She said that she got on better with the district nurses.
38. She explained her diet which she said that she understood.
39. Much of her evidence was hard to follow. It was extremely difficult for anyone to interrupt her or change the flow of what she was saying. She would not be deflected from her story.
40. She lost track of questions. She was able to focus for a short time, but very quickly would go off onto other matters which had no bearing on what she was being asked. She was determined and articulate but I am afraid to say that much of what she demonstrated in the witness box was the accuracy of what had been said by Dr Series and Ms S.
41. At the end of her evidence I was asked to read a note that she had prepared. She feels that her life has been taken away from her. She does not want to be anywhere other than home with her "little ones" who give her more treatment than anyone else. She feels that she has no quality of life in the care home albeit that she has two of her animals with her.
42. I turn now to the law and start with two crucial principles. Section 1(2) of the Mental Capacity Act 2005 sets out that a person is presumed to have capacity unless it is established otherwise. The burden of proof falls on whoever alleges a lack of capacity. Further, a person is not to be treated as unable to make a decision merely because he makes an unwise decision - Section 1(4). Each one of us is at liberty to make an unwise decision. An unwise decision is not in itself evidence of incapacity.
43. Section 2(1) provides for the purposes of this Act a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain. There must be a causal connection between the diagnostic element and the inability to make a decision.
44. It is important to bear in mind that a decision made based on emotion is something that many people make, whether suffering from a sound or an impaired mind. The court must analyse the relevant decision and assess the processes at work which have led to the decision.
45. Section 3 of the Act sets out when a person is unable to make a decision:

i) For the purposes of section 2 a person is unable to make a decision for himself if he is unable

a) to understand the information relevant to the decision

b) to retain that information

c) to use or weigh that information as part of the process of making the decision or ….

46. I have not set out the full provisions of sections 1-3 but I have read them and reminded myself of them. I also bear in mind that the burden is on the local authority being the party who asserts that CDM lacks capacity.
47. It is accepted on behalf of CDM that she suffers from an impairment of mind, namely a personality disorder.
48. Fluctuating Capacity:

Fluctuating capacity raises particular problems. There are a number of options open to the court including refraining from making any declarations at all and instead providing a plan to determine CDM's capacity from time to time. My view is that if I find that there is a fluctuating capacity, it is my duty to declare that is the case. I set out my findings in that regard below. I accept that this may cause complications until such time as a framework is established so that the loss of capacity can be recognised and calibrated as and when it occurs. That may require further evidence and consideration at another hearing.

49. Ms Scott on behalf of CDM asked me to rule that questions of capacity have to be made prospectively and says that the Mental Capacity Act would not be workable if professionals had to assess daily if someone had the capacity to make a particular decision. She relies on In re M [2014] EWCA Civ 37, which I have read and considered.
50. I do not accept that is the case in respect of the decisions that arise in this case. Paragraph 4.4 of the Code of Practice says that an assessment of a person's capacity must be based on their ability to make a specific decision at the time it needs to be made and not their ability to make decisions in general.
51. I accept that in some examples, for instance, the capacity to consent to sexual relations, the capacity albeit fluctuating will be one that will either be present or not present. But management of her diabetes is a different matter. It covers a wide range of different situations which may arise frequently or infrequently. The treatment required may be of very different natures. I cannot see that this particular form of fluctuating capacity can properly be managed other than by a decision being taken at the time that the issue arises.
52. My Conclusions:

i) I conclude that CDM lacks capacity to conduct proceedings, as is agreed on behalf of CDM.

ii) I conclude that she does not have capacity to make decisions about her residence. I find that she is unable to weigh up or use the information. She simply is unable to consider that there is any risk from her being at home. She is not willing to take any steps to reduce the risk and she does not regard the risks as existing.

I accept that many people may have an emotional and unwise reaction to the suggestion that they should leave their home without there being any mental impairment. It can be a deeply emotive issue. But, that does not mean that an analysis of the merits of the decision by the individual in question is an irrelevant or unnecessary step. This is all the more important when her situation at home can be so extreme in terms of the condition of the home and her life there and her inability to effect or accept change.

If I am wrong about that, she regards the risks as being so minimal as not worthy of attention. This is not weighing up or using information about risk but ignoring it. I do not accept that she has determined that as carers call several times a day the risks are insignificant. She simply cannot envisage any alternative to being at home.

Her inability to acknowledge the risks attached to her determination to stay at home, to be able to make necessary changes to her lifestyle and to accept help are the direct consequence of her personality disorder.

iii) By the end of the case the parties agreed that I should consider care and treatment separately. CDM carries out her own self-care, with encouragement, in the care home. I am not satisfied that she does not have the capacity so to do.

Treatment in the context of this case relates to ability to manage her diabetes and in particular (a) the ability to manage and control her blood sugar level and (b) the willingness to accept treatment when required. At times she is willing to accept treatment and at other times she ignores the advice of experienced and well-meaning professionals. I agree with Dr Series, as opposed to Ms S, that CDM has a fluctuating capacity.

Under the heading "relationship between CDM's personality disorder and diabetes" and in reply to further questions Dr Series at E147-9 provided a useful summary which I accept. At 10.1.4 and 11.1.2 he explains that her personality disorder aggravates her diabetes because it leads her to poor diabetic control and to the making of unwise decisions about her treatment and an inability to cooperate with professionals about her treatment.

There will be some occasions when she makes appropriate decisions, for example accepting insulin from the nurse, but there are many other occasions when she makes manifestly unwise decisions as a result of her personality disorder which impairs her ability to follow professional advice, whether in respect of her residence or treatment.

I therefore accept Dr Series' evidence that when making appropriate decisions she has capacity but when making manifestly inappropriate decisions she lacks capacity.

iv) Property and affairs: I am troubled by the lack of evidence on this issue. Dr Series describes how CDM was able to give him a general description of her income and expenditure and that she appeared to be able to understand normal banking practice. True it is that on one occasion a neighbour to whom she had given her bank card removed a large amount of money from her account without her authority. Her revelation of her pin number to an untrustworthy neighbour is worrying but I do not think that is sufficient basis for me to say that she lacks capacity to deal with this issue. The care home permits her to keep her bank card and manage her own money. Dr Series advises that her personality disorder may lead CDM on occasions to reject advice on financial matters or make her unable to weigh the relevant information. I do not think I have any satisfactory evidence on which I can conclude that she lacks capacity in this area.

v) I conclude that she lacks capacity to surrender the tenancy of her property. This decision is intimately bound up with her ability to make decisions about residence. I do not know what the long-term future will be for CDM but for as long as she is the tenant, she will have an obligation to pay the rent on the property. So emotionally attached is she to the property that I cannot see circumstances in which she could contemplate surrendering the tenancy however obviously sensible that might be.

53. It follows and I so find that CDM lacks capacity in relation to the question whether or not she should be accommodated in CC (being the relevant hospital or care home) for the purpose of being given the relevant care or treatment. I therefore authorise her continued detention and deprivation of liberty in CC.
54. I accordingly make declarations in line with my conclusions. This means that a further hearing will be required both to establish a mechanism under which the local authority can operate when capacity fluctuates and also to consider best interests.
55. I hope that CDM can accept that the court has not simply ignored her strongly held wishes. They are and remain important factors to weigh in the future assessment of her best interests.