Looking sidewise in the COP

RB v Brighton and Hove Council  [2014] EWCA Civ 561

Summary

In June 2007 RB sustained a serious brain injury in an accident. He was treated for eight months in hospital and then transferred to a care home, S House. In 2011 RB ceased participating in rehabilitation programmes and proposed to leave S House. The staff at S House considered that RB was not capable of independent living. Because of his physical and mental disabilities he was likely to (a) resume his former chaotic lifestyle and (b) to suffer serious or fatal injuries in consequence.

The Council granted a standard authorisation pursuant to Schedule A1 to the MCA 2005. RB brought an application under s.21A MCA 2005 to terminate the standard authorisation. RB and the Council jointly instructed Dr Janet Grace, a consultant psychiatrist, to report on RB’s capacity. Dr Grace reported that RB had an impairment in the functioning of his brain with elements of psychotic illness, personality disorder and cognitive impairment. The principal cause of these disabilities was damage to RB’s frontal lobe sustained in the accident.

Dr Grace described some of the resultant problems as follows:

“Since admission he had a tendency to leave the unit and has absconded on unescorted leave on several occasions. When he leaves the care of the staff he tends to seek out homeless people in the Brighton area and obtain cannabis and alcohol. He drinks until he vomits and has self presented to hospital on several occasions. He has a tendency to self-discharge from hospital including on one occasion in a hospital gown. He has a tendency to be incontinent of urine when intoxicated.”

Dr Grace concluded that RB did not have capacity to decide where he should live. He could understand relevant information but he could not weigh it up. He was also handicapped by inconsistent memory and errors in recalling his personal history.

At first instance, Dr Grace gave evidence. In particular, she was asked a number of questions as to the difference between RB and an ordinary alcoholic (who would not of course be made subject to a standard authorisation). District Judge Glentworth summarised this part of Dr Grace’s evidence as follows:

“His drinking to excess is clearly documented as happening both before and after his brain injury

…

It was put to Dr Grace that an alcoholic has that same lack of ability to refuse a drink but it cannot be said that all alcoholics lack capacity. Her response was that an untreated alcoholic does not have the frontal lobe damage which means that a person such as RB works on impulse. If the frontal lobe is disengaged from the decision making process the decision is not thought out. Alcoholics can weigh up their decisions.”

Dr Grace was also cross-examined about RB’s capacity to decide where he should live. The district judge summarised that part of her evidence as follows:

“It was put to Dr Grace that it does not flow from the fact that RB cannot resist alcohol that he cannot make a decision as to where he should live. She said that for RB residence and care are intertwined. RB needs to have an awareness of his needs. The combination of the frontal and right sided brain damage means that he is not fully aware of the risks to himself. He cannot retain and weigh information and cannot make an independent decision about where to live so that his needs will be met. However when he is presented with two alternatives both of which can meet his needs he can choose one over the other.”

The district judge accepted those parts of Dr Grace’s evidence. She dismissed RB’s application, the core of her reasoning being that she was:

“satisfied that RB has been given and can understand information relevant to the decision. He can also remember what he has been told. However, I am not satisfied that he is able to use and weigh up that information as part of making the relevant decision. I am not satisfied that he understands the consequences of his risky behaviour. I am satisfied he lacks the capacity to decide whether he should be accommodated in the relevant care home for the relevant care to be provided for him. He has shown a clear wish to leave. It would not be right to terminate the standard authorisation.”

RB’s appeal to HHJ Horowitz QC was dismissed for essentially the same reasons. RB appealed to the Court of Appeal.

RB argued that two preconditions for deprivation of liberty were not satisfied, namely the mental capacity requirement (set out in paragraph 15 of Schedule A1) and the best interests requirement (set out in paragraph 16 of schedule A1).

In relation to the first ground, the core submissions were that:

1. RB’s inability to control his drinking was the same now as it was before the accident. RB’s brain injury is not the cause of his propensity to injure himself through excessive drinking. Furthermore the judge erred in applying s.3(1) MCA 2005: the third of the specified skills, namely using and weighing information, does not and cannot be expected to come into operation when an alcoholic is considering whether to have a drink.
2. Reliance was placed upon the fact that RB preferred S House to alternative accommodation which was offered at a place called V, and RB had capacity to make that decision.
3. As a separate strand of argument it was pointed out that by 2013 RB had ceased participating in rehabilitation at S House. Therefore the “care and treatment” referred to in the mental capacity requirement could only be day to day personal care. RB was aware that he needed that. He had capacity to decide that he wished to receive that in a flat, rather than at S House.

In relation to the second ground of appeal, the core submission was that the personal care which RB currently received could equally well be provided in a flat. The sole purpose of RB’s detention at S House was to stop him drinking. It was therefore submitted that it was a misuse of the “best interests” provision to incarcerate an alcoholic so as to stop him drinking. On the evidence, it was submitted, there was no basis for concluding that detention in S House accords with RB’s best interests.

These arguments were described by Jackson LJ (giving the sole reasoned judgment on behalf of the Court of Appeal) as “formidable.”

The law

Before addressing the arguments advanced on behalf of RB, Jackson LJ set out a number of propositions relating to the law and, in particular, to the use of citations from authorities in cases involving the MCA 2005.   He noted that, whilst the provisions of the MCA 2005 were lengthy – their subject matter being “intractable” – the statute was drafted in plain English, and:

“39. […] Judges have rightly cautioned against glossing the statute with judicial dicta and paraphrases: see A Local Authority v FG[2011] EWHC 3932 (COP) at [21] per Hedley J; York City Council v C [2013] EWCA Civ 478; [2014] 2 WLR 1 at [37] per McFarlane LJ with whom Lewison and Richards LJJ agreed.

40. The cases which arise for decision under Part 1 of the MCA (including the present case) tend to be acutely difficult, not admitting of any obviously right answer. The task of the court is to apply the statutory provisions, paying close heed to the language of the statute. Nevertheless, as judges tread their way through this treacherous terrain, it is helpful to look sideways and see how the courts have applied those statutory provisions to other factual scenarios. This has nothing to do with either the doctrine of precedent or the principles of statutory interpretation. The purpose is simply to see how other judicial decisions have exposed the issues or attempted to reconcile the irreconcilable.”

Jackson LJ then went on to discuss a number of cases by way of a tour d’horizon of the Court of Protection’s jurisdiction, for purposes of “looking sideways.”   His comments, whilst not forming part of the ratio of the case, and expressly not designed to formulate legal principles (paragraph 61) are of no little interest in summarising some of the key dilemmas facing judges in this area:

• In re A (Capacity: Refusal of Contraception) [2010] EWHC 1549 (Fam); [2011] Fam 61, which Jackson LJ described as “expos[ing] the uncertain penumbra which surrounds MCA section 3. The information relevant to any big decision, such as whether to have a baby, is almost limitless. How long are the parties likely to live? Is their relationship stable? What are their probable resources over the next 20 years? What other commitments do they have? And so forth. All long term decisions are made on the basis of peering into an unknown future. Any court applying the test set out in section 3 is imposing an impossible burden if it requires the person to understand and weigh up all information relevant to such decision. In re A is helpful as an illustration of the court adopting a pragmatic approach to the application of section 3” (paragraph 42);

• PH v A Local Authority [2011] EWHC 1704 (Fam). Jackson LJ noted the “excellent three page summary of the law at paragraphs 16 (i) to 16 (xiii) of [Baker J’s] judgment. I have furtively read through this summary, whilst bearing in mind that what I must apply is the MCA not some other judge’s reformulation of its provisions” (paragraph 43); he then noted that the case “affords a classic example of the court overriding the strongly expressed wishes of a patient who, because of the impaired functioning of his brain, did not understand his own best interests. So desperate was PH to escape from Y Court that on a number of occasions he telephoned the police and asked them to “rescue” him: see [8]. The spectacle of a man who has committed no crime being forcibly detained against his will is a chilling one. The provisions of the MCA and the independent role of the Court of Protection provide vital safeguards against any arbitrary misuse of the power to detain” (paragraph 45).

 

• A Local Authority v FG, AG and HG [2011] EWHC 3932 (COP); where an 18 year old woman had social skills which made her appear normal at first meeting but, because of cerebral palsy, her mental functions were those of a 6 or 7 year old child. Hedley J held that HG did not have the capacity to decide where to live, where to be educated or what contact to have with her family. HG had the capacity to say yes or no to specific offers, but she could not digest information relating to multiple choices. As Jackson LJ noted, “[h]ere we see the court stepping in and strictly circumscribing the area of HG’s personal autonomy” (paragraph 46);

• A Local Authority v H [2012] EWHC 49 (COP), concerning capacity to consent to sexual relations.   As Jackson LJ noted: “[i]n the course of his judgment Hedley J noted with dismay that a number of recent cases on the application of the MCA were inconsistent. I would comment that whilst that is true, it is not perhaps surprising. Judges are applying, as best they can, the provisions of the MCA to the unforeseen vicissitudes of human life. Those decisions are not models to be followed. They are merely examples, which may or may not illumine any new problem which arises” (paragraph 48). Jackson LJ also highlighted the impact of s.1(6) MCA 2005 by reference to a further passage in Hedley J’s judgment, noting that “[i]t may be said that the best interests of a person always “positively require” that he/she should be prevented from making unwise decisions. But such an approach is unacceptable. Section 1(6) operates as a brake on excessive use of the powers vested in local authorities and the court;”

 

• A NHS Trust v P [2013] EWHC 50 (COP); which Jackson LJ described as highlighting another tension within the Act, namely that arising from section 1(4).

“If following brain injury a person wishes to make unwise decisions, his right to do so is protected by section 1(4). On the other hand if he cannot weigh up the relevant information in the course of making those decisions, the court steps in and holds that he lacks capacity. At paragraph 10 of P Hedley J stressed the importance of section 1(4):

 ‘The plain fact is that anyone who has sat in the Family jurisdiction for as long as I have, spends the greater part of their life dealing with the consequences of unwise decisions made in personal relationships The intention of the Act is not to dress an incapacitous person in forensic cotton wool but to allow them as far as possible to make the same mistakes that all other human beings are at liberty to make and not infrequently do.’

 This passage is helpful, in that it may illumine the path for other judges who are struggling with the tension between sections 1(4) and 3(1) of the MCA. The passage should not, however, be regarded as any form of gloss on the Act.” (paragraph 53)

• York City Council v C [2013] EWCA Civ 478; [2014] 2 WLR 1, from which Jackson LJ picked out, in particular, the holding by McFarlane LJ explained that determination of capacity under Part 1 of the MCA is decision-specific. “Sometimes the determination bites upon a particular decision, such as whether to have contact with a named person. Sometimes it bites upon a more general matter, such as capacity to marry. Indeed other judges have pointed out that, for pragmatic reasons, it is not possible for every individual decision made by the person to be the subject of a determination under the MCA: see IM v LM [2014] EWCA Civ 37 at [77].” (paragraph 56).

Capacity

RB’s Counsel placed very heavy reliance on IM, submitting that an alcoholic’s decision to drink is emotional or “visceral,” not involving any process of ratiocination, and hence analogous to LM’s decision to engage in sexual relations. By analogy, it was said, the reasoning set out in IM should be applied and to say the processes of using or weighing information play no part in an alcoholic’s decision to drink.

Jackson LJ had no hesitation in rejecting this approach as the wrong way to make use of authorities in this highly fact sensitive jurisdiction.

“64 […] What the court must do in the present case is apply the clear statutory provisions to the facts as found by the first instance judge, District Judge Glentworth. It is inappropriate for the court to start comparing the decision which RB wishes to make in this case with the decisions which other disabled persons sought to make in other cases.

 65. That approach sucks the court into convoluted reasoning. It also drives up costs. There appear to be innumerable ‘capacity’ cases out there in the law reports and on the websites. I have only referred to those authorities which one or other counsel regard as relevant. There are many others. If lawyers are going to trawl through previous cases looking for factual similarities or analogies and then debate these in their skeleton arguments, that will involve a substantial waste of costs and time.”

Whilst Jackson LJ regarded the decision in IM as instructive, as helpfully exposing some of the issues that arise under the MCA 2005, he rejected the suggestion that the decision somehow governed the outcome of the instant case, and also noted that there were significant differences between the two cases – for instance, the risk in IM was an unwanted baby, whereas the risk in the present case was serious injury to RB.

Jackson LJ had little hesitation in dismissing this aspect of the appeal:

“70. The decisions which RB wishes to make require a process of using and weighing up relevant information. On the basis of the expert evidence and of the district judge’s findings of fact, RB is not capable of carrying out that mental process. The difficulties which RB has in using or weighing information and making consequent decisions accord closely with the situation described in paragraphs 4.21 and 4.22 of the Code of Practice. RB is unable to appreciate and weigh up the risks which he will run if he resumes his former way of life and goes out on drinking bouts. Therefore, applying MCA section 3(1)(c), RB does not have capacity to make this decision.

71. Section 1(3) of the MCA requires the Court to consider whether all practicable steps have been taken to help RB become able to take such decisions. In my view they have been. The staff at S House are skilled at neurorehabilitation. They provided RB with rehabilitation courses up to early 2011. Rehabilitation has only ceased since then because of RB’s reluctance to co-operate.

72. Mr Gordon advances a causation argument, relying upon the reasoning of Lord Hoffmann in Environment Agency (Formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22 at pages 29-30. Mr Gordon submits that the frontal lobe damage is not the cause of RB’s inability to weigh up and use relevant information. He argues that the difference between RB’s present condition and that of an alcoholic without brain injury is ‘wafer thin’.

73. I do not accept this argument. The expert evidence establishes that the brain injury has substantially impaired RB’s ability to weigh up and use relevant information: see, for example, Dr Grace’s second report at pages 9-11. The district judge accepted that evidence. This court will not go behind that conclusion reached by the trial judge.

74. I accept the proposition that since 2012 RB has been receiving day to day personal care, not rehabilitative treatment at S House. That is because of RB’s refusal to participate in rehabilitation. That day to day care currently constitutes the ‘relevant care or treatment’ referred to in paragraph in paragraph 15 of schedule A1 to the MCA. RB says that as between two institutions, namely V and S House he would prefer to receive such care at S. House. RB is competent to make that decision. On the other hand there will be substantial difficulties in RB receiving appropriate day to day care, if he is living in independent accommodation and he resumes his former way of life. Because of his brain injury RB is unable to appreciate and weigh up those difficulties.

75. Section 1(6) of the MCA requires the court to consider whether the purpose can be achieved in a way that is less restrictive of RB’s rights and freedom of action. Regrettably it cannot. The only way to achieve the purpose is (a) to detain RB in S House or a similar institution such as V and (b) to ensure that when RB goes out he is accompanied and supervised.”

Best interests

Jackson LJ acknowledged the force of the submissions made on behalf of RB that he was solely receiving day to day personal care, not therapeutic treatment to ameliorate his acquired brain injury, and that it was not necessary that it be physically detained for purposes of receiving such care.

However, Jackson LJ noted:

 “80. […] On the other hand, RB’s physical and mental disabilities are such that he is not currently capable of independent living outside an institutional setting. Such a setting is necessary (a) to deliver day to day personal care and (b) to prevent RB drinking to excess and suffering dire consequences.

81. Both the Council and the court are aware of RB’s wishes, namely to live independently in the community. The MCA section 4(6)(a) requires both the Council and the court to take those wishes into account. I do so. Unfortunately it is not possible for the time being to comply with those wishes.

82. RB is not thereby condemned to a lifetime of incarceration without hope of release, as Mr Gordon submits. If only RB would continue to co-operate in rehabilitative programmes (as he did up until 2011) he may well become capable of independent living in the future. In order to comply with the MCA section 4(4), the staff at S House must continue to offer rehabilitation to RB and must encourage him to participate.

83. Without proper safeguards a regime of compulsory detention for medical purposes would be unacceptable, indeed Orwellian. However, the carefully drawn provisions of the MCA together with the reviewing function of the court ensure that the power to detain is not misused. In the present case deprivation of liberty is necessary in order to protect RB from seriously injuring himself. That must be in his best interests.”

He therefore rejected the second ground of appeal.

Fulford and Arden LJJ concurred but did not give separate judgments.

Comment

This judgment is very significant in terms of the approach that is to be adopted by judges to the MCA 2005 and to the use of case-law to amplify the provisions of the statute.   It is, clearly, correct that the starting point must be the plain words of the Act.   However, almost every word in sections 1-4 (in particular) is loaded with significance going far beyond the plain terms; especially given the seriousness of the consequences of a conclusion that a person lacks capacity in one or more domains, it is hardly surprising that both lawyers and in turn judges have sought to look sideways for assistance.

I would also wish to defend Hedley J in relation to his comments in H – his complaint about inconsistency was a very carefully targeted one: it was not that judges had been applying the MCA 2005 inconsistently to different situations, but that there were fundamentally inconsistent approaches had been adopted by judges as to whether capacity to consent to sexual relations was an act-specific or person-specific one. That was a question of law which ultimately required resolution by the Court of Appeal in IM (although it may be that it is still to go further).

It is therefore certainly correct that judges in the CoP should not seek to strive to shoe-horn the very sensitive facts of one case into the ratio of another; but I would very much hope that this decision is not taken as licence to abandon attempts to achieve consistency between decisions where such can properly be achieved.   This would, apart from anything else, have a disastrous impact upon the already difficult task of bringing about understanding of the MCA 2005 outside the courtroom.

As to the actual determination of the appeal in this case, it is suggested that the basis upon which the question of capacity was determined leaves open the possibility in another case that the causation arguments run on behalf of RB can properly be advanced.   Whilst he dismissed the causation argument shortly, Jackson LJ was careful to found himself upon the conclusions of Dr Grace and the findings of fact of District Judge Glentworth. That is a rather different matter to holding that such an argument was unsound as a matter of law.