England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF PROTECTION

		Royal Courts of Justice Strand, London, WC2A 2LL
		27/07/2010

Sir Nicholas Wall P:

Introduction

1. In these proceedings under the Mental Capacity Act 2005 (the Act) the preliminary question which I have to resolve is whether or nor LT, a young woman now aged 23, lacks the capacity to make decisions; (1) about where she should live; and (2) what contact she should have with members of her family. At the conclusion of the hearing on 20 July 2010, I announced my decision, namely that in my judgment LT did indeed lack capacity in the respects identified. However, due to the time, the nature of the arguments addressed to me, and the importance of my decision for LT and her family, I reserved my reasons. These I now give.
2. The consequence of my decision is that, in default of agreement, there will need to be a "best interests" decision about where LT should live and what contact she should have with her family. The Official Solicitor, who represents LT, advocates a declaration that it is in LT's best interests to be provided with care by the local authority in the case at a residential establishment, with a "planned, supported and gradual" move back to the home of her parents.
3. Nothing in this judgment should be taken as preventing the parties from negotiating towards that end, and it is plain to me that the resolution of this case is as much a human as it is a legal dilemma. To that end I released the parties from attending court on the second day of the hearing. If necessary I will, of course, resolve any outstanding issues. My hope, however, is that it will be possible to reach an agreement, and I gave the parties permission to apply to me at short notice whether with an agreed order or for further directions.
4. By order of Moylan J dated 5 March 2010 the parties were granted anonymity. That anonymity will continue. Nothing, accordingly, must be published which will identify LT, or any member of her family or the local authority.

Capacity under the Act

5. The sections of the Act dealing with capacity are 1 to 3, which I propose to set out in extenso:-

Part 1 Persons who lack capacity

The principles

1 The principles

(1) The following principles apply for the purposes of this Act.

(2) A person must be assumed to have capacity unless it is established that he lacks capacity.

(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.

(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.

(5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.

(6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.

Preliminary

2 People who lack capacity

(1) 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.

(2) It does not matter whether the impairment or disturbance is permanent or temporary.

(3) A lack of capacity cannot be established merely by reference to—

(a) a person's age or appearance, or

(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.

(4) In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.

(5) No power which a person ("D") may exercise under this Act—

(a) in relation to a person who lacks capacity, or

(b) where D reasonably thinks that a person lacks capacity,

is exercisable in relation to a person under 16…….

3 Inability to make decisions

(1) 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

(d) to communicate his decision (whether by talking, using sign language or any other means).

(2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).

(3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.

(4) The information relevant to a decision includes information about the reasonably foreseeable consequences of—

(a) deciding one way or another, or

(b) failing to make the decision.

6. For the local authority, Mr. Roger McCarthy QC submits robustly that the language of the Act is crystal clear, and that reference to previous authority on the common law meaning of incapacity is unnecessary. For LT, Mr Joseph O'Brien agrees that an application of the facts to the language of the Act is all that is required in the instant case, although he submits that there may be cases in which a previous analysis of what constitutes incapacity at common law will be helpful. For LT's father, RT, Miss Kate Markus seeks to persuade me that LT has capacity under the Act and refers me to a number of the cases. I shall return to these points at the end of this judgment.

The facts

7. The background to the case is helpfully set out by the Official Solicitor in the position statement which he filed on behalf of LT, and which I am content to adopt. LT was initially raised by her natural parents. At the age of six months, however, she was removed from her mother's care and had several short term foster placements, before returning to her natural mother and then being fostered again.
8. At the age of approximately two and a half, LT was taken in and then adopted by RT and his wife. It appears that the family did not receive any post adoption support. LT developed epilepsy from approximately the age of 3. This has been well controlled with medication. LT received education through mainstream services, with additional support. She entered mainstream schooling aged four to five, but early problems were noted in her progress, social interactions and behaviour. She received support from the specialist Learning and Behaviour Difficulties Support Team for approximately one year in 1995. She was also under the care of paediatricians, and saw a child psychologist.
9. From an early age LT's parents have expressed dissatisfaction about the care and support LT (and they) have received including a dispute with the Local Education Authority as to whether LT should receive a statement of special educational needs. These disputes have extended from her infant school, through high school, to a children's home and to later placements.
10. LT saw a clinical psychologist in 1996 when she was nine. This was for a complete assessment of her educational needs, and as well as undertaking psychometric tests. The psychologist observed that LT was "unusual and "atypical".
11. At about the age of ten or eleven she was seen by another psychologist, who diagnosed Reactive Attachment Disorder (RAD) to account for her socially bizarre and immature behaviour, her need to be in control, and the fact that she showed and accepted little affection, giving little eye contact, lying about her behaviour, accepting little responsibility, showing no remorse and little impulse control. The psychologist did not, however, believe she had either ADHD (though she was inattentive and impulsive) or autism spectrum disorder (though autistic tendencies were acknowledged).
12. When she was about fourteen, LT saw another psychologist whose review of LT's clinical symptoms led her to a diagnosis of Pathological Demand Avoidance Syndrome (PDAS). Behaviours noted by the psychologist included resistance to demands, poor attachment, attention seeking, bizarre ego-centricism, and verbal and physical aggression provoked by changes in routine. Although the psychologist considered autism spectrum disorder, she felt that LT's way of dealing with pressure and demands, through the use of social and verbal tactics to remove herself from the situation, was more akin to PDAS than autism.
13. When aged fifteen LT went to live in a children's home from Mondays to Fridays, returning home on weekends. Whilst there she attended an educational centre approximately two days a week. She returned to live at home permanently when she was about sixteen.
14. In the course of judicial review proceedings taken by her parents against the local authority, a report was obtained from another clinical psychologist. LT was then aged sixteen The psychologist noted significant problems in social interaction and behaviour, and the outcome of the review was that LT was to be placed in residential care at the age of seventeen. In fact, she moved to residential case shortly before her eighteenth birthday. A formal review of her progress occurred in March 2009. LT was noted to be resisting moving to independence. She had refused psychological therapy, declined an advocate and a personal plan worker, discontinued work placements and been non-compliant with medication prescribed by a psychiatrist.
15. On 5 October 2009 an inconclusive capacity assessment was undertaken regarding LF's wish to return to live with her parents. However, on 16 November 2009, she did so. There is a factual dispute about what then occurred, about which I have not heard oral evidence and which I am not currently in a position to resolve. The upshot, however, was that on 25 November 2009, LT went to the respite unit where she is currently residing. It is common ground that this placement is unsuitable for her in the long term, and that she must move.
16. On 1 December 2009 an urgent Authorisation for Deprivation of Liberty was made. A Standard Authorisation was requested on 7^h December 2009 which was granted on 14^th December 2009. These proceedings were then commenced under the Act by LT's father, RT. In addition to the question of LT's capacity, he challenges her deprivation of liberty.
17. The application came before Moylan J on circuit on 5 March 2010. He granted interim declarations to the following effect, namely that : -

(a) LT lacks capacity to litigate and to understand and make decisions about her residence and care needs;

(b) it is in LT's best interests that she continue to reside and be cared for at (an identified establishment) ("the placement"); and

(c) the standard authorisation dated 14 December 2009 which authorised the deprivation of liberty of LT at (the placement) shall remain in force until further order.

18. Moylan J also gave case management directions, including permission to the parties to obtain a report from an independent expert to report to the Court on LT's capacity to litigate, make decisions as to residence and care needs and to report to the Court and on matters relating to LT's best interests. Dr K, who both wrote a report and gave oral evidence to me, was jointly instructed by the parties. His evidence is plainly pivotal to the issues which I have to determine.

The evidence of Dr K

19. Dr K is a consultant psychiatrist, who is experienced in learning disability. His report is dated 30 June 2010. Once again, I am content to adopt the Official Solicitor's analysis of his written evidence.
20. In relation to the impairment in the functioning of the mind or brain, Dr K recorded that LT had her Intelligence Quota (IQ) assessed using the WISC III test when she aged nine years and eleven months. This had yielded a full scale IQ estimate of 63 (verbal IQ 64; performance IQ 67). However, it had been noted at the time that this could be an underestimate due to LT's distractibility during the assessment. She did relatively better on the British Ability Scale tests of reading (age equivalent of 7.9 years), spelling (8.2 years) and maths (7.0 years).
21. At the age of thirteen, the WISC III test was repeated and LT achieved similar scores to when she was 9, with a full scale IQ of 66 (Verbal IQ 66, Performance IQ 71). Assessment of her reading, spelling and reading comprehension were in keeping with her age and IQ, functioning at the age nine to ten level. There was, however, evidence from her parents, and the records confirmed, developmental delay, particularly around academic progress, speech, social skills, social functioning and reasoning ability. Thus Dr K concludes that LT has a mild learning disability, although she is very much at the upper end of the range.
22. However, Dr K was also of the opinion that LT has a significant disorder of social functioning and interaction and may have an autism spectrum disorder. He thus concludes that (1) LT has a mild Learning Disability and (2) a significant disorder of social functioning and interaction which is unspecified, (the precise diagnosis being unclear). In his view, LT meets the criteria for having impairment of, and disturbance in, the mind and brain as defined by the Act.
23. In relation to the functional stage, the question of whether LT understood information was, according to D K, less than clear. LT avoided taking in information that she did not want to hear. This suggested to Dr K that at some level LT was aware of the nature if not the content of the information which people were attempting to impart to her. Although not strictly a failure to understand, Dr K categorised this trait as a refusal to receive the relevant information and was of the opinion that it did impair a person's ability to understand all relevant information. Furthermore, reports suggested that LT preferred conversation which was 'matter of fact, purposeful and achieves some goal'. This suggested to him that she had difficulties with abstract concepts.
24. As to whether LT could retain information, LT was reported to have a good memory. Dr K did not detect any problems to do with her memory.
25. As to using the information as part of the decision making process this was where Dr K believed that LT had the greatest difficulty, particularly in areas that were "emotionally laden". In his assessment of LT's capacity he noted particular difficulties in LT making balanced judgments, as she was only able to look at a problem from one perspective. The nature of her social disorder (whether it was an adult form of PDAS or RAD, or autistic spectrum) limited her ability to take in and weigh the relevant information and, in extreme circumstances, communicate it effectively. Thus, he concluded, she demonstrated strong dichotomous (black and white) thinking; for example, social workers were all bad and only lie; parents were all good and never had any problem.
26. Dr K was of the view that this trait would significantly impair LT's ability to weigh information in the balance in coming to a conclusion. Another difficulty was that she held very strong, often pre-formed, views. She was described as stubborn and strong-willed, and also did not like change. Dr K concluded, therefore, that cognitively LT may struggle to take on fresh information and synthesise that into a whole, particularly if it ran counter to her pre-formed views, or did not support her wishes.
27. As to communicating a decision, Dr K assessed LT to have reasonable expressive and receptive communication skills and a good use of social language. However, he was of the opinion that LT did not have litigation capacity in respect of these proceedings. Given her level of learning disability, significantly compounded by her level of social dysfunction, the abstract ideas and concepts were such that she would not be able to instruct counsel appropriately or make decisions based upon information received from them.
28. As far as her mental health, her general health and medical needs were concerned, Dr K was of the opinion that this was entirely dependent upon what was being asked of her. In general LT did have the capacity in the above areas. However, if LT developed a fixed idea about a subject, it was very difficult for her to incorporate counterbalancing or conflicting information. Thus, whilst LT did have capacity in these areas, he recommended that for complex decisions, or those with long-term and/or serious consequences, her capacity to make those decisions should be assessed at that time, and in relation to the specific decision.
29. As far as LT's social care needs were concerned, and how these should be met, Dr K was of the opinion that these matters were entirely dependant on the nature and context of the decision that needed to be made. At the present time, for decisions that involved her family, LT would need to be assessed to determine whether she was able to take on any other information. As this was an area which is causing her anxiety at the moment, it was likely that she would struggle to make a capacitous decision. However, during Dr K's interview with her, he had been impressed by her logic around choice of day services. She had, for example, spoken of looking for three things in a day service. Thus, whilst LT did have the potential capacity to determine issues to do with her social care needs, she required assessment at the time as to whether she had taken on board all the information and used that information in the balance to come to a decision. In particular reference had to be made to whether she was able to acknowledge the risks and benefits of any decision as it affected (1) her behaviour and (2) the impact that decision would have on others.
30. Dr K was of the opinion that LT did not have capacity with respect to residence. He noted that LT was able to work with him in discussing the issue. In some respects LT was able to produce quite detailed lists of reasons, but those reasons were entirely one sided. Thus she had only acknowledged the positive aspects of returning home. She did not spontaneously identify any risks of returning home (or benefits of living in a residential placement). Moreover when it was impressed upon her that providing such counter-examples would give Dr K greater confidence that she had capacity, she could not. Significantly when Dr K gave information that could be used as a counter-balance she refused to factor it into her considerations. Furthermore, she was unable to account for her parents growing older and perhaps becoming unwilling or unable to provide the kind of support LT required in the longer term. Thus, in Dr K's view, LT only considered one side of the argument, only acknowledging information that led to an outcome she desired i.e. to return home. She was not able to weigh information in the balance.
31. So far as contact with her natural family was concerned, Dr K was of the opinion that LT did have capacity to decide the basic question whether she wanted contact with family members. She plainly did want such contact. However, due to the nature of her disorder, Dr K thought that she might not be able to identify at any particular moment the impact that contact might have on the other family members, for example, in relation to timing, frequency or duration. Thus whilst Dr K was of the opinion that LT had the capacity to decide that she did or did not want to see a particular family member in principle, she needed support in deciding when and where that should be.
32. In his oral evidence, Dr K's emphasis, as it seemed to me, was on what he perceived as LT's inability, in the words of section 3(1)(c) of the Act "to use or weigh ….. information as part of the process of making the decision". In this regard, as in others, he was forcefully and skilfully challenged by Miss Markus for RT, who had earlier given oral evidence that in his view, LT did indeed have capacity. A capable person, Miss Markus suggested, might well dismiss arguments out of hand as contrary to a strongly held belief. Dr K agreed: what, however, made LT different was what he had earlier in his evidence described as "the wall through which you could not pass". Miss Markus put to Dr K that he had not really given LT the opportunity to go back and "identify the negatives". Dr K responded that he had tried, but had been met with "don't know"s and "I want to go home – why don't you understand that?".

My assessment of Dr K's evidence

33. In my judgment, Dr. K was a good witness. His tone was moderate and his evidence undogmatic. He made appropriate concessions. He agreed with Miss Markus that somebody with LT's IQ would normally have capacity. He acknowledged the difficulty of identifying the condition from which LT suffered and accepted that, whatever it was, she might grow out of it. He accepted as "possible" a number of the hypotheses which Miss Markus put to him. He accepted, in addition, that LT understood the choice between what was home and what was not. He accepted that her wish to return home was genuine, but remained of the view that she lacked the capacity to "understand the negatives".
34. Dr K's answers to Mr. McCarthy were telling. Dr K doubted that LT could decide the "pros and cons" of contact. She was capable of saying that she wanted contact but was not able to assess the effect of contact either on herself or to recognise how others would react to it.

The evidence of RT

35. I am conscious that I have to balance the evidence of Dr K (and of the specialist social worker Miss B, who agreed with him) against the evidence of LT's father, who made two statements in the proceedings and who gave oral evidence to me. I make it clear at once that RT struck me as a thoroughly decent and honest man, who was telling me the truth as he saw it, and who probably knew his daughter better than anyone else in court. In the final paragraph of his second statement, he said this: -

We feel that (LT) has the ability to decide where she lives. She has refused to listen to alternatives because she is sure that she doesn't want to live in a specialist residential setting, she simply want to be at home. It is difficult for me to explain why I think she has the capacity to make such a decision but I feel that, whilst she has a lot of needs, she is quick on the uptake. She has in the past been found to have the capacity to make decisions regarding her health and we would agree with that. When it was found (around the time of our complaint to the Ombudsman) when at (a particular residential home) that LT had the capacity to make decisions about her diet, even though they might be to her detriment, we didn't disagree with that. What we disagreed with was the way in which (the home) "gave up" in the face of that and didn't seek to manage her food intake, we felt that they 'hid behind' that finding.

36. In answer to Mr. McCarthy, RT gave a significant answer, which I noted in the following terms: "If she lacks capacity on the residential issue I do have concerns that her wishes and feelings will not be given sufficient weight: that is the principal downside."

Discussion

37. I had considerable sympathy with RT when he told me that he found the issue over capacity quite difficult to comprehend – given, as he said, that LT "has the capacity to deal with other issues quite easily". This is not a straightforward case: indeed a superficial reading of Dr K's sympathetic interview with LT might well lead the unsuspecting reader into the belief that section 2(3) of the Act applied, and that LT (as her father believes) had capacity.
38. In these circumstances, it seems to me that the only proper course is to go through the Act, and apply the facts of the case to the wording of sections 1 to 3. I apply section 1(2). I assume LT has capacity unless it is established (on the balance of probabilities – see section 2(4)) – that she lacks it. Have all practicable steps been taken to help LT make the relevant decisions without success (section 1(3)? Yes, I think they have. Despite Miss Markus' skilful argument and cross-examination of Dr. K, the volume of material which deals with LT's history and the attempts to help her is substantial and compelling.
39. In her helpful position statement, Miss Markus accepts that LT meets the "diagnostic" test in section 2(1). I apply section 2(2) and warn myself against the trap pointed out in section 2(3). LT is 23 (section 2(5)).
40. In my judgment, section 3 of the Act is at the heart of this case. The use of the word "or" in section 3(1)(c) demonstrates that the individual incapacities set out in section 3(1) are not cumulative. A person lacks capacity if any one of the sub-sections (a) to (d) applies. In the instant case, I am satisfied that section 3(1)(c) applies.
41. I do not think, although it is arguable, that LT is capable of understanding the information about where she should live (sub-section (1)(a) in combination with sub-section (4)). It must, I think, follow that if she is incapable of understanding the information – sub-section 1(a) - she must be incapable of retaining it (sub-section 1(b)). But on any view on Dr K's evidence, which I accept, LT is plainly not capable of using or weighing the information as part of the process of making the decision.
42. All this plainly applies to the decision about where she should live. In effect, the only thing she says is: "I want to go home". She cannot either discuss the matter or weigh the advantages and disadvantages of that course. That is the "wall" of which Dr K spoke, and in my judgment it is sufficient to make LT incapable of making the decision about where she should live.
43. Whether LT is capable of understanding the information about where she should live is moot. On the balance of probabilities, I incline to the view that the disability identified in section 3(1)(c) infects her understanding within section 3(1)(a) in combination with section 3(4). If the information relevant to the decision includes information about the reasonably foreseeable consequences of deciding or failing to decide, and if LT cannot use or weigh that information, can she be said properly to have understood it? On the balance of probabilities, I think the answer to that question is "no", but in any event, I do not have to ask it. Section 3(1)(c) is sufficient.
44. In my judgment, similar considerations apply to contact. LT says she wants contact, but she is clearly incapable, as Dr K made clear, of weighing the pros and cons of contact as part of the process of making that decision. She is also not capable of assessing the impact of contact on herself and others, as Dr. K asserted. Once again, I accept his evidence.
45. As I have already made clear, I do not doubt RT's good faith or his genuine belief that LT has the capacity to make the two decisions about living and having contact with her parents. However, I think Mr. McCarthy is right when he submits that RT's principal concern on the residence issue is his belief that if LT is found to lack capacity the court will not give sufficient weight to her wishes and feelings. In my judgment that it is in any event implicit in the paragraph from his statement which I have cited, and RT was sufficiently honest to accept the point when it was put directly to him. The test, however, is that laid down in the Act, and for the reasons I have already given, the evidence of Dr. K is compelling.

Postscript

46. That is sufficient to dispose of the point, but in fairness to Miss Markus it seems to me that I should comment briefly on Mr. McCarthy's submission that the pre-Act learning was now all obsolete, and that all that was required was an examination of the terms of the Act. Mr. McCarthy presented me with a document setting out the Act's long and tortuous history – starting with the Law Commission Fourth Programme of Law Reform in 1989 and including the pleas from my predecessor Dame Elizabeth Butler-Sloss P in Re F (Adult Court's Jurisdiction) [2000] 2 FLR 512 at 524 (CA) (Re F): -

The assumption of jurisdiction by the High Court on a case-by-case basis does not, however, detract from the obvious need expressed by the Law Commission and by the Government for a well-structured and clearly defined framework of protection of vulnerable, mentally incapacitated adults, particularly since the whole essence of declarations under the inherent jurisdiction is to meet a recognised individual problem and not to provide general guidance for mentally incapacitated adults. Until Parliament puts in place that defined framework, the High Court will still be required to help out where there is no other practicable alternative.

47. Re F was, of course, the case in which the Court of Appeal, for the first time, found that the court's inherent jurisdiction in relation to children could be extended to vulnerable adults. It is a landmark decision, and all three judgments repay re-reading.
48. It is equally plain to me that section 3(1) of the Act derives from the advice which Dr Eastman gave Thorpe J (as he then was) as long ago as October 1994 – see In re C (Adult: Refusal of Treatment)[1994] 1 WLR 290 at 295C-D, in the same way that the Act had to be amended to plug what became known as the Bournewood gap following the decision of the ECtHR in HL (HL v United Kingdom Application 45508/09 (2004) 40 EHRR 761, in which the latter held, contrary to the House of Lords, that HL had been deprived of his liberty and that the use by HL's doctors of the common law doctrine of necessity did not meet the requirement in ECHR Article 5 that such a detention must be carried out "in accordance with a procedure prescribed by law": see the recent judgment of the Court of Appeal in Re G [2010] EWCA Civ 822 paragraphs 24 and 25.
49. All that said, I basically agree with Mr. McCarthy that what we now have is the Act (as amended) and the essential judicial task is to apply the plain words of the Statute to the facts of the case before the court. On the facts of this case, reference to authority is otiose: the evidence from Dr K, which I accept, plainly fits section 3(1)(c) of the Act, and there is no need to look anywhere else.
50. The Court of Protection is, rightly, generating a great deal of work, much of it very difficult. I have not found this case easy. I therefore agree with Mr. McCarthy that, wherever possible, the plain words of the Act should be directly applied to the facts of the case in hand, and that complicating factors should, if possible, be avoided. On the facts of the instant case, there is no difference in approach between Mr. McCarthy and Mr. O'Brien for LT.
51. That said, there will be cases in which it may be necessary to look at pre- or even post Act authority on the question of capacity. One example relates to the field of sexual relations. What, for example, is the appropriate test of capacity following the decision of the Judicial Committee of the House of Lords in R v C [2009] 1 WLR 1786: - see the judgment of Wood J in D County Council v LS [2010] EWHC 1544 (Fam)?
52. In the instant case, I am not critical of the provision of authority even though, as events have turned out, it was unnecessary. My strong hope is that Mr. McCarthy is proved right and that the overwhelming majority of case will be sensibly resolved by the application of the plain words of the Act to the facts of the case. The law, however, does not stand still, and it would to me seem to be wrong in principle to assert that simply because there is an Act of Parliament, citation of previous authority is otiose.

Postscript

53. Having decided the issue of capacity. I have left it to the parties to discuss the future. I hope very much that an agreement will be reached, and that it will be unnecessary for the court to have to decide the issue of what is in LT's best interests. The court's door remains open, however, and I have given leave for the case to be mentioned to me at short notice, either for an agreed order to be made or for further directions. I hope very much, however, that it will be the former. I should, however, be grateful if counsel could draw up an order to reflect the decision which I have made about LT's capacity.