Alex RKWiltshire County Council v RB & Ors [2023] EWCOP 26 concerned a 29 year old woman diagnosed with Autism Spectrum Disorder. Since 2015 she had been selectively mute, and chose to communicate in writing or by pointing to words on an alphabet board. She had rheumatoid arthritis and was found in 2021 to have capacity to decline medical treatment for that condition, as a result of which her mobility was severely impaired. Since entering sixth form she had had several admissions under the MHA 1983. She has been in a number of placements which have been unsuccessful. In June 2020, she was found to have capacity to decide where to live after leaving a community placement. In August 2020, she was detained in a psychiatric hospital for over 2 years. On 3 January 2023, she was discharged to a bungalow with a 24/7 package of 2:1 care. She was clearly deeply unhappy there, partly as a result of being transported against her will and subject to physical restraint. Over two days, she undertook several acts of deliberate self-harm including attempts to strangle herself. At first instance, the court received evidence from the expert consultant psychiatrist that “….. a return would be likely to cause her real physical, emotional and psychological injury that has the potential to be lifelong”. On 5 January 2023, the woman herself emailed the Court of Protection seeking the court’s assistance. She also contacted the emergency services as did her carers. She was admitted to a general hospital on 7 January 2023. She was medically fit for discharge but had consistently said that she did not want to return to the bungalow, nor did she agree to return there.
At first instance, HHJ Cronin found that RB lacked capacity to decide to consent to be discharged from the hospital to live at the bungalow. Acting by her litigation friend, the Official Solicitor, RB appealed. The appeal was not opposed by the Local Authority or the ICB. Save in one respect, it was opposed by the Health Trust responsible for the area where RB was currently hospitalised.
As Peel J noted at paragraph 5:
It is common ground that the hospital ward is not an appropriate environment for RB, and her presence allocates resources away from other requirements. The Hospital Trust is in the uncomfortable position of effectively housing RB until these proceedings resolve her future. It does strike me that the Trust’s position in the litigation is somewhat peripheral. Its interest at a practical level is to secure the departure of RB from the hospital. The outcome of capacity and best interests assessments is only of relevance to the Trust in terms of potential delay. In saying this, I am not in any way downplaying the Trusts’ commitment to the wellbeing of RB.
Peel J noted that the decision was a difficult one, but zeroed in on the fact that there appeared to be some confusion as to precisely what capacity issue required adjudication. The declaration made by HHJ Cronin directly linked discharge from hospital to a return to the bungalow. But, as he identified, the specific decision included two components: (1) discharge from hospital; and (2) return to the bungalow. Peel J considered that:
22. By eliding discharge and accommodation at the bungalow, it seems me that the judge may have unwittingly fallen into an “outcome approach” which is inconsistent with autonomy and the subjective patient’s individuality, and does not form part of the framework of the Act; para 13 of R v Cooper [2009] 1 WLR 1786.
23. This is demonstrated vividly by RB herself who, in [a letter to the court], clearly thought that she was being presented with one option. She was being presented with a decision which to her mind was whether to return to the bungalow or not; essentially a fait accompli. Dr Camden-Smith [the independent expert] refers to this in her report: “[RB] is aware that the hospital wishes to discharge her, and that currently the only option available to her is the bungalow”. That was a stark option with no nuances and, what is more, one that is, on the evidence of the expert, likely to expose her to grave physical, psychological and emotional harm.
24. Dr Camden-Smith’s report at para 35 says: “I told [RB] in the email that she cannot stay in hospital and that she will end up being discharged to the bungalow if she cannot make a decision”. Given that the judge, understandably, paid particular attention to the evidence of Dr Camden-Smith, my sense is that as a result she was led away from a focus on discharge to a focus on living arrangements. That is reinforced by the tenor of her judgment in which she said: “The decision the court is ultimately asked to make, if RB cannot, is a decision about: first, where RB should live on her discharge from hospital”.
Peel J considered that:
26. […] there were, or should have been, two separate issues, and two separate capacity decisions, to consider, namely:
i)Did RB have capacity to consent to hospital discharge? That evaluation depended upon, inter alia, the information recorded in the order of 21 February 2023. Inevitably, that includes a possible return to the bungalow (it would be unrealistic to separate this out) but that was not the only possible option, nor the only factor to be taken into account. Others included the Local Authority continuing searches for alternative placements, or RB simply refusing to leave hospital and accepting the potential consequence of a forced departure which might include living in a hotel or living rough (as she has done before). The latter might be deemed an unwise decision, but by s1(4) of the MCA 2005 that is not of itself indicative of lack of capacity. Moreover, as Dr Camden-Smith said, it is not irrational to refuse to leave hospital if the only alternative put to her is somewhere she adamantly refuses to go to because of previous traumatic experiences.
ii)Does she have capacity to consent to going to the bungalow? That, it seems to me, would also need to be considered in the light of other relevant information such as alternative placements (as identified by Dr Camden-Smith, concrete options are required) and a full understanding of what caused her so much distress at the bungalow in the first place.
Whilst expressing sympathy for the difficult decision faced by the judge, Peel J concluded that she was wrong to elide the declaration in the way that she had done.
In terms of the actual assessment of RB’s capacity, Peel J identified that:
37. It is not for RB to establish capacity or justify her autonomous wishes; she is presumed to be capacitous. To interpret a refusal to contemplate returning to the bungalow as indicative of lack of capacity, or causative of lack of capacity, as the expert seems to do, should be weighed against an alternative explanation that she was simply expressing a capacitous wish not to go there again after her prior experiences. In my judgment, the judge did not adequately weigh up these competing factors in circumstances where by any measure a strongly held wish not to return to the bungalow, with clearly stated reasons, was understandable. This ground of appeal is allowed.
In other words, the specific decision upon which the judge determined lack of capacity included two components: (i) discharge from hospital and (ii) return to the bungalow. That is how it appeared in the final version of the order, albeit not in the first version drafted by the judge.
Peel J also agreed that the judge had undertaken any substantive analysis of the question of RB’s capacity to decide upon care, which seemed not to have been referred to in the judgment but added upon a request for clarification.
Peel J emphasised that:
Although I have concluded that in the end the judge fell into error, I am not convinced that the case was presented to her as clearly as it might have been, identifying the issues accurately and clearly. No order before the hearing set out with clarity the issues to be decided and as a result the elision of discharge and best interests was allowed to develop unchecked.
In remitting the case for rehearing, Peel J suggested that the capacity issues to be considered were, in this order:
i) Does RB have litigation capacity?
ii) Does RB have capacity to consent to hospital discharge?
In considering this the court should direct itself to the relevant factors identified in the order of 21 February 2023 and should in particular consider the position if the bungalow is a residence option or, in the alternative, is not a residence option.
iii) Does RB have capacity to decide where she should live?
iv) Does RB have capacity to make decisions about personal care?
Peel J identified, finally, that he could and should:
45. […] make a general comment about the bungalow. I appreciate the complexities of this case which is challenging to all involved. I appreciate also the immense pressure on resources. Nevertheless, from what I have seen and heard, for RB to return to the bungalow risks causing her profound harm. What happened during her time there is shocking. The expert’s view about the potential impact on her physically, emotionally and psychologically is compelling. Transportation would almost certainly take place against her will, and require physical restraint. It seems to me that alternative options simply have to be sourced. The expert says that RB should be given a viable alternative that is not the bungalow, and I agree. If the bungalow is removed from the equation, it is possible (indeed, I suspect, likely), that capacity and best interests issues may well resolve themselves.
Comment
Peel J’s dissection of the actual decisions in play is important for illuminating the consequences of imprecision – but his concluding observation about the potential for the issues to resolve themselves if alternatives are found is equally important. More broadly, the decision is also helpful for shedding light on an area which causes inordinate difficulty in practice: i.e. discharge decisions in the situation where a person has impaired decision-making capacity. Part of the complexity, as alluded to by Peel J, is that there are likely to be multiple organisations involved. I have previously sought to undertake the exercise of disentangling who, precisely, is responsible for what, and – in consequence – what capacity questions actually arise, in a presentation available here. I am somewhat reassured to see that Peel J’s analysis matches my, even if I might not talk about ‘consenting’ to hospital discharge, as opposed to ‘deciding to leave hospital,’ to match the language that would be used in relation to a person whose decision-making capacity is not in question.
