RB v Brighton & Hove City Council

This judgment is in eight parts, namely:

This is an appeal by a 37 year old man, with mental and physical disabilities, against an order of the Court of Protection authorising his detention at a care home. The issues in this appeal are:

I shall refer to the Mental Capacity Act 2005 as “MCA” or “the 2005 Act”.

The MCA, as amended by the Mental Health Act 2005, provides as follows:

“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.

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.

…

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.

4.

Best interests

(1)

In determining for the purposes of this Act what is in a person's best interests, the person making the determination must not make it merely on the basis of —

(a)

the 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 what might be in his best interests.

(2)

The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.

(3)

He must consider —

(a)

whether it is likely that the person will at some time have capacity in relation to the matter in question, and

(b)

if it appears likely that he will, when that is likely to be.

(4)

He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.

…

(6)

He must consider, so far as is reasonably ascertainable —

(a)

the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),

(b)

the beliefs and values that would be likely to influence his decision if he had capacity, and

(c)

the other factors that he would be likely to consider if he were able to do so.

(7)

He must take into account, if it is practicable and appropriate to consult them, the views of —

(a)

anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,

(b)

anyone engaged in caring for the person or interested in his welfare,

…

(11)

“Relevant circumstances” are those —

(a)

of which the person making the determination is aware, and

(b)

which it would be reasonable to regard as relevant.

4A. Restriction on deprivation of liberty

(1)

This Act does not authorise any person (“D”) to deprive any other person (“P”) of his liberty.

(2)

But that is subject to —

(a)

the following provisions of this section, and

(b)

section 4B.

(3)

D may deprive P of his liberty if, by doing so, D is giving effect to a relevant decision of the court.

(4)

A relevant decision of the court is a decision made by an order under section 16(2)(a) in relation to a matter concerning P's personal welfare.

(5)

D may deprive P of his liberty if the deprivation is authorised by Schedule A1 (hospital and care home residents: deprivation of liberty).

…

21A Powers of court in relation to Schedule A1

(1)

This section applies if either of the following has been given under Schedule A1 —

(a)

a standard authorisation;

(b)

an urgent authorisation.

(2)

Where a standard authorisation has been given, the court may determine any question relating to any of the following matters —

(a)

whether the relevant person meets one or more of the qualifying requirements;

(b)

the period during which the standard authorisation is to be in force;

(c)

the purpose for which the standard authorisation is given;

(d)

the conditions subject to which the standard authorisation is given.

(3)

If the court determines any question under subsection (2), the court may make an order —

(a)

varying or terminating the standard authorisation, or

(b)

directing the supervisory body to vary or terminate the standard authorisation.

…

Schedule A1

Part 1.

Authorisation to deprive residents of liberty etc

Application of Part

1(1) This Part applies if the following conditions are met.

(2)

The first condition is that a person (“P”) is detained in a hospital or care home — for the purpose of being given care or treatment — in circumstances which amount to deprivation of the person's liberty.

(3)

The second condition is that a standard or urgent authorisation is in force.

(4)

The third condition is that the standard or urgent authorisation relates —

(a)

to P, and

(b)

to the hospital or care home in which P is detained.

Authorisation to deprive P of liberty

2.

The managing authority of the hospital or care home may deprive P of his liberty by detaining him as mentioned in paragraph 1(2).

…

Part 2

Interpretation: main terms

Introduction

5.

This Part applies for the purposes of this Schedule.

Detained resident

6.

“Detained resident” means a person detained in a hospital or care home — for the purpose of being given care or treatment — in circumstances which amount to deprivation of the person's liberty.

Relevant person etc

7.

In relation to a person who is, or is to be, a detained resident—

“relevant person” means the person in question;

“relevant hospital or care home” means the hospital or care home in question;

“relevant care or treatment” means the care or treatment in question.

Authorisations

8.

“Standard authorisation” means an authorisation given under Part 4.

9.

“Urgent authorisation” means an authorisation given under Part 5.

10.

“Authorisation under this Schedule” means either of the following —

(a)

a standard authorisation;

(b)

an urgent authorisation.

…

Part 3

The qualifying requirements

The qualifying requirements

12(1) These are the qualifying requirements referred to in this Schedule —

(a)

the age requirement;

(b)

the mental health requirement;

(c)

the mental capacity requirement;

(d)

the best interests requirement;

(e)

the eligibility requirement;

(f)

the no refusals requirement.

(2)

Any question of whether a person who is, or is to be, a detained resident meets the qualifying requirements is to be determined in accordance with this Part.

(3)

In a case where —

(a)

the question of whether a person meets a particular qualifying requirement arises in relation to the giving of a standard authorisation, and

(b)

any circumstances relevant to determining that question are expected to change between the time when the determination is made and the time when the authorisation is expected to come into force,

those circumstances are to be taken into account as they are expected to be at the later time.

…

The mental capacity requirement

15 The relevant person meets the mental capacity requirement if he lacks capacity in relation to the question whether or not he should be accommodated in the relevant hospital or care home for the purpose of being given the relevant care or treatment.

The best interests requirement

16(1) The relevant person meets the best interests requirement if all of the following conditions are met.

(2)

The first condition is that the relevant person is, or is to be, a detained resident.

(3)

The second condition is that it is in the best interests of the relevant person for him to be a detained resident.

(4)

The third condition is that, in order to prevent harm to the relevant person, it is necessary for him to be a detained resident.

(5)

The fourth condition is that it is a proportionate response to —

(a)

the likelihood of the relevant person suffering harm, and

(b)

the seriousness of that harm,

for him to be a detained resident.

…

PART 4

STANDARD AUTHORISATIONS

…

Relevant person must be assessed

33(1) This paragraph applies if the supervisory body are requested to give a standard authorisation.

(2)

The supervisory body must secure that all of these assessments are carried out in relation to the relevant person—

(a)

an age assessment;

(b)

a mental health assessment;

(c)

a mental capacity assessment;

(d)

a best interests assessment;

(e)

an eligibility assessment;

(f)

a no refusals assessment.

…

Mental capacity assessment

37.

A mental capacity assessment is an assessment of whether the relevant person meets the mental capacity requirement.

Best interests assessment

38.

A best interests assessment is an assessment of whether the relevant person meets the best interests requirement.

…

Duty to give authorisation

50(1) The supervisory body must give a standard authorisation if —

(a)

all assessments are positive, and

(b)

the supervisory body have written copies of all those assessments.

(2)

The supervisory body must not give a standard authorisation except in accordance with sub-paragraph (1).

(3)

All assessments are positive if each assessment carried out under paragraph 33 has come to the conclusion that the relevant person meets the qualifying requirement to which the assessment relates.

Terms of authorisation

51(1) If the supervisory body are required to give a standard authorisation, they must decide the period during which the authorisation is to be in force.

(2)

That period must not exceed the maximum authorisation period stated in the best interests assessment.

52.

A standard authorisation may provide for the authorisation to come into force at a time after it is given.

53(1) A standard authorisation may be given subject to conditions.

(2)

Before deciding whether to give the authorisation subject to conditions, the supervisory body must have regard to any recommendations in the best interests assessment about such conditions.

(3)

The managing authority of the relevant hospital or care home must ensure that any conditions are complied with.”

In the above recitation I have omitted provisions relating to persons under the age of 16 and other provisions not relevant to the present case.

Section 42 of the MCA requires the Lord Chancellor to issue one or more Codes of Practice for the guidance of persons carrying out functions under the Act. The Lord Chancellor has duly issued a Code of Practice for the guidance of persons assessing capacity pursuant to the MCA. I shall refer to this as “the Code of Practice”.

Paragraphs 4.21 – 4.22 of the Code of Practice provide:

“Using or weighing information as part of the decision-making process

4.21

For someone to have capacity, they must have the ability to weigh up information and use it to arrive at a decision. Sometimes people can understand information but an impairment or disturbance stops them using it. In other cases, the impairment or disturbance leads to a person making a specific decision without understanding or using the information they have been given.

4.22

For example, a person with the eating disorder anorexia nervosa may understand information about the consequences of not eating. But their compulsion not to eat might be too strong for them to ignore. Some people who have serious brain damage might make impulsive decisions regardless of information they have been given or their understanding of it.”

RB are the initials of the subject of this litigation. RB was applicant in the Court of Protection and is appellant in this court. The Brighton and Hove City Council (“the Council”) was respondent in the Court of Protection and is respondent in this court.

After these introductory remarks, I must now turn to the facts.

RB was born on 4^th August 1976, so he is now aged 37. He has a past history of homelessness, criminality and sleeping rough. He has an extensive criminal record, which led to numerous custodial sentences in a young offenders’ institution or prison. From the age of 15 onwards RB was dependent on alcohol. He committed most of his offences when under the influence of alcohol or drugs.

On the 18^th June 2007 RB was found collapsed in the street, having sustained a severe head injury. It is not known whether this was caused by an assault or a road traffic accident. RB was admitted to hospital, where he was found to have a subdural haemorrhage resulting in subdural haematoma. An immediate operation was carried out to evacuate the haemorrhage. After eight months treatment in hospital, on 28^th February 2008 RB was transferred to a neurorehabilitation facility to which I shall refer as S House. This is a “care home” within the meaning of schedule A1 to the MCA.

RB was in need of rehabilitation, because he had suffered serious injuries. The accident had caused damage to RB’s frontal lobe, which impaired his mental processes. RB also had major physical disabilities. He was and is confined to a wheelchair most of the time. He wears a leg brace and has lost effective use of his left hand.

To begin with all went well. RB participated in the rehabilitation programmes and made distinct improvements in mobility and speech. In early 2011 the local authority started making arrangements for RB to move into a flat, where he would be assisted by regular carers. These arrangements fell through because of concerns that RB could not manage on his own. It was feared that he would be unsafe, self-neglecting and a source of risk to other residents.

The collapse of these arrangements seems to have led to a breakdown of the relationship between RB and the staff at S House. RB ceased co-operating with the rehabilitation programmes. He then decided to resume his former lifestyle, which included going out, socialising with homeless persons and becoming drunk. There were repeated incidents during 2011 of RB going out and coming back to S House intoxicated or alternatively presenting himself to the accident and emergency department at the local hospital.

The care home applied for a standard authorisation pursuant to the MCA schedule A1. On 19^th September 2011 the Council, as supervisory body, granted a standard authorisation which enabled staff to detain RB at S. House. In box C3 of this document the Council stated that the purpose of the standard authorisation was as follows:

“SB requires 24/7 care in order to ensure his safety. When he leaves the accommodation he puts himself at risk by drinking heavily. He has been diagnosed with an ABI [Acquired Brain Injury] in 2007 following a RTA.”

The Council subsequently issued further standard authorisations. These authorised RB’s continued detention at S House.

As a consequence of the standard authorisation, RB can only leave the care home when he is permitted to do so and in the company of an escort. The Council funds by Direct Payments up to 12 hours 1:1 escort time each week. Currently, the Council says this typically will involve the following:

RB strongly resented and resents having been kept at S House since September 2011. He does not want to be subject to any restrictions. He wishes to move into his own flat. He accepts that he needs some care, for example showering, putting on his leg brace and brushing his teeth. He accepts that he needs help with putting on at least some of his clothes and also with cutting up food. He maintains that he can use a microwave, hob and oven; also that he can make hot drinks.

RB’s contention is that he can live in the community and that the help which he needs can be provided by people coming in during the day. The Council disagree and are not prepared to release RB into the community. Accordingly RB commenced the present proceedings.

By an application form issued on 24^th May 2012 RB applied to the Court of Protection to terminate the standard authorisation pursuant to section 21A of the 2005 Act. RB lacks the capacity to litigate, so the Official Solicitor is acting as RB’s litigation friend.

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.

RB’s application came on for hearing before District Judge Glentworth sitting in the Court of Protection in March 2013. RB gave oral evidence, as did a social worker and Dr Grace. The witness statements of the manager of S House were also read by the court.

Counsel asked Dr Grace 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). The district judge 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 gave judgment on 15^th March 2013. She dismissed RB’s application. She set out the core of her reasoning in paragraph 34 of his judgment as follows:

“Having considered the evidence I am 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.”

Having reached those conclusions, the district judge went on to hold that detention at S House was in RB’s best interests. Furthermore she held that detention was a proportionate response to the likelihood of RB suffering harm and the seriousness of that harm.

RB appealed against that decision. His Honour Judge Horowitz QC, sitting as a judge of the Court of Protection (“the judge”), heard that appeal in October 2013. He handed down his reserved judgment on 4^th October 2013. The judge came to essentially the same conclusions as the district judge. Accordingly he dismissed RB’s appeal.

RB was aggrieved by the decisions of the district judge and the judge. Accordingly he applied for permission to appeal to the Court of Appeal. Lord Justice Ryder adjourned the application to the full court, with the appeal to follow if permission was granted.

At the hearing on 26^th March 2014 both Mr Richard Gordon QC for RB and Mr Bryan McGuire QC for the Council developed their full arguments. Accordingly the court grants permission to appeal and must now proceed to deal with the substantive appeal.

By amendment of the appellant’s notice RB advances essentially two grounds of appeal which I would summarise as follows:

In relation to the first ground Mr Gordon submits that RB’s inability to control his drinking is 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 section 3(1) of the MCA. 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.

Mr Gordon also relies upon the fact that RB preferred S House to alternative accommodation which was offered at a place called V. RB had capacity to make that decision.

As a separate strand of argument Mr Gordon points out that by 2013 RB had ceased participating in rehabilitation at S House. Therefore the “care and treatment” referred to in paragraph 15 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, Mr Gordon argues that the personal care which RB currently receives could equally well be provided in a flat. The sole purpose of RB’s detention at S House is to stop him drinking. It is a misuse of the “best interests” provision to incarcerate an alcoholic so as to stop him drinking. On the evidence there is no basis for concluding that detention in S House accords with RB’s best interests.

These are formidable arguments which Mr Gordon advances. Before tackling those arguments, I must first review the law.

Baroness Hale in Surrey County Council v P [2014] UKSC 19; [2014] 2 WLR 642 at [2] to [10] has set out the background to the MCA and its subsequent amendment by the Mental Health Act 2007. I shall take that passage as read and will not re-state the legislative background or the general purposes of the MCA.

I have set out the relevant provisions of the MCA in Part 1 above. Those provisions are lengthy because their subject matter is intractable. Nevertheless the statute is drafted in plain English. 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.

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.

In Inre A (Capacity: Refusal of Contraception) [2010] EWHC 1549 (Fam); [2011] Fam 61 the local authority sought a declaration that A, a vulnerable 29 year old woman with learning difficulties and low IQ, lacked capacity to make a decision about contraception. Bodey J granted the declaration, because A could not understand the immediate medical issues surrounding contraception. Nevertheless, he rejected the local authority’s contention that capacity to decide about contraception involved an understanding of wider considerations, such as what parenthood would entail.

Inre A exposes 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.

In PH v A Local Authority [2011] EWHC 1704 (Fam) a 49 year old man with Huntingdon’s Disease was kept in a residential home (Y Court) pursuant to a standard authorisation granted by the local authority. He applied to the Court of Protection to terminate the standard authorisation on the grounds that the capacity requirement and best interests requirement were not satisfied. Baker J, after hearing the evidence, granted interim declarations that PH lacked capacity to make decisions about his residence and care. Baker J provided an excellent three page summary of the law at paragraphs 16 (i) to 16 (xiii) of his 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.

Baker J’s task was not made any easier by the conflict of medical evidence as to the extent of PH’s abilities. Ultimately the judge decided that although PH wanted to return home, he had no understanding of what living there would entail. PH did not have a true awareness of how much personal care he needed. He did not appreciate the danger of choking when he was eating. PH mistakenly thought that his former partner would be living there and acting as principal carer. Accordingly PH lacked three out of the four components of the functional tests set out in MCA section 3(1), namely (a) understanding, (b) retaining and (c) using or weighing relevant information.

That 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.

In A Local Authority v FG, AG and HG [2011] EWHC 3932 (COP) HG 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. Here we see the court stepping in and strictly circumscribing the area of HG’s personal autonomy.

A Local Authority v H [2012] EWHC 49 (COP) concerned a 29 year old woman with atypical autism and an IQ of 64. She had a high degree of sexualisation. She was willing to have a sexual encounter with anyone who asked her, including strangers. The local authority obtained a standard authorisation and placed H in accommodation where she was subject to 1:1 supervision. The purpose of these restrictions was to prevent H from engaging in sexual relations. Hedley J held that H did not have capacity to consent to sexual relations. He made an order allowing the current regime to continue.

In 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.

Moving on from the authorities, Hedley J discussed what capacity to consent to sexual relations entailed. He felt unable to formulate a workable test in relation to the moral aspect. In relation to the emotional component, he held that the crucial question was whether H understood that she had a choice and she could refuse. In this case, as in others, the court was focusing on the immediate considerations which H must weigh up. Turning to the evidence, he held that H did not understand the health implications of sexual relations and she could not deploy the information which she had in the decision making process.

In paragraph 35 of his judgment Hedley J discussed the impact of the MCA section 1(6). He observed:

“It is strange, but nevertheless true, that even the freedom to make unwise decisions, clearly a real risk here in relation to sexual relations, is one that the court is required to guard and only to restrict if and when (bearing in mind section 1(6) of the Act) the best interests of H positively so require.”

This passage touches on one of the many tensions within the Act. It 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) highlights 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.

In York City Council v C [2013] EWCA Civ 478; [2014] 2 WLR 1 PC, a woman with significant learning disabilities, cohabited with N and later married him in 2006 when he was in prison for serious sexual offences. The local authority, which regarded PC as a vulnerable adult at possible risk of harm from N, issued proceedings under the MCA in anticipation of N’s release on licence. The local authority sought declarations that PC lacked capacity under section 2 of the MCA to litigate and to make decisions in respect of contact, residence and care. In particular the local authority’s case was that, despite having capacity to marry, PC nevertheless lacked capacity to decide to cohabit with N. The judge found that PC did not have the capacity to decide whether to resume married life with N but, under the jurisdiction of the Court of Protection, declared that it was lawful and in her best interests to undergo a phased transition to live with N within a scheme of monitoring and support provided by the local authority as approved by the court.

Both PC and N appealed. The Court of Appeal, reversing the decision of the Court of Protection judge, held that PC had capacity to decide whether to cohabit with N. McFarlane LJ, with whom Lewison and Richards LJJ agreed, held that since PC had capacity to marry, she must also have capacity to decide to cohabit with her husband. There was no evidential basis to support a distinction whereby PC had capacity to decide the first matter but not the second.

At paragraph 3 of his judgment 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].

IM v LM is an authority upon which Mr Gordon on behalf of RB places much reliance in the present case. LM was a woman with an extensive history of drug and alcohol abuse. At the age of 37 she underwent an operation for liver disease. During the operation LM suffered hypoxic brain injury. This caused significant amnesia with moments of lucid thought. The memory loss caused LM confusion and distress. It was common ground that LM lacked capacity to make decisions concerning residence, care and contact. The Court of Protection made unchallenged declarations to that effect. The issue then arose whether LM should continue to have sexual relations with AB, the partner with whom LM had been living for some years.

Dr G prepared a report for the court. Dr G opined that LM was not able to weigh up the advantages and disadvantages of becoming pregnant; she did not recognise the possible health risks to herself and the foetus in the event of pregnancy; nor did she recognise the possible outcome, namely a baby with which she may or may not have contact. Peter Jackson J held that, despite Dr G’s evidence, LM had capacity to make decisions about sexual relations. IM, who was LM’s mother, challenged that decision on appeal.

Sir Brian Leveson, President of the Queen’s Bench Division, delivered the judgment of the court. The court noted at [73] that the impact of section 3(1) of the MCA varied according to the nature of the decision in issue. Some decisions require a more sophisticated evaluation of relevant information than others. At [81] the court observed that:

“The ability to use and weigh information is unlikely to loom large in the evaluation of capacity to consent to sexual relations.”

This led the court to an important conclusion:

“The notional process of using and weighing information attributed to the protected person should not involve a refined analysis of the sort which does not typically inform the decision to consent to sexual relations made by a person of full capacity.”

The court went on to hold the LM possessed the skills identified in MCA section 3 to a sufficient extent to be able to decide about sexual relations. Accordingly the court dismissed IM’s appeal and upheld the decision of Peter Jackson J.

That concludes my survey of the recent authorities which counsel have drawn to our attention. I do not attempt to formulate legal principles emerging from those authorities. The relevant principles are all to be found set out with clarity in the MCA. Nevertheless those authorities perform the valuable function which I have mentioned in paragraph 40 above.

With the benefit of that illumination I must now address the first ground of appeal concerning the mental capacity requirement.

Mr Gordon places heavy reliance on paragraphs 73, 81 and 82 of McFarlane LJ’s judgment in IM. I have summarised those paragraphs in Part 5 above. Mr Gordon submits that an alcoholic’s decision to drink is emotional or “visceral”. It does not involve any process of ratiocination. The present case is on all fours with IM. RB’s decision to drink is analogous to LM’s decision to engage in sexual relations. Mr Gordon urges us to apply the reasoning set out in paragraphs 81-82 of IM and to say that the processes of using or weighing information play no part in an alcoholic’s decision to drink.

In my judgment that is the wrong way to make use of authorities in this highly fact sensitive jurisdiction. 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.

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.

I regard the Court of Appeal’s decision in IM as instructive. It helpfully exposes some of the issues which arise under the MCA. I reject the suggestion that the court’s decision in IM somehow governs the outcome of the present case. Furthermore, in case it is relevant, there are significant differences between IM and the present case. For example, the risk in IM was an unwanted baby. The risk in the present case is serious injury to RB.

Let me now turn to the core issue. RB was able to, and did, survive as an alcoholic with a chaotic lifestyle up to June 2007. There are now superimposed on RB’s previous condition the grave physical and mental disabilities resulting from his accident.

Mr Gordon states that RB wishes to resume his former way of life. No doubt he does. Nevertheless the risks of resuming that lifestyle are much greater than they were before. They include, for example, choking on his own vomit when he goes out drinking. Anyone in RB’s situation needs to think carefully before he goes out and embarks upon a bout of heavy drinking.

Clearly RB wishes to make unwise decisions. That in itself is not relevant to mental capacity: see MCA section 1(4). The issue is whether RB has the ability to make those decisions, regardless of whether they are wise or unwise. The burden rests on the Council to prove that RB does not have that ability: see section 1(2).

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.

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 nuerorehabilitation. They provided RB with rehabilitation courses up to early 2011. Rehabilitation has only ceased since then because of RB’s reluctance to co-operate.

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”.

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.

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.

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.

Let me now draw the threads together. Both the district judge and the judge held that the mental capacity requirement set out in paragraph 15 of schedule A1 to the MCA was satisfied. I agree with that conclusion and reject the first ground of appeal.

I must now turn to the second ground of appeal and the question of RB’s best interests.

Mr Gordon’s submissions on this issue cover familiar ground. He points out that at S House RB is simply receiving day to day personal care, not therapeutic treatment to ameliorate his acquired brain injury. It is not necessary that RB should be physically detained in order to receive such day to day personal care. Nor is it in RB’s best interests that he should be so detained.

Mr Gordon described RB as a “caged prisoner”. He urged that it cannot be in RB’s best interests to be incarcerated for years.

I see the force of these submissions. 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.

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.

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.

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.

I would therefore reject RB’s second ground of appeal.

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 Mental Capacity Act 2005 (“MCA”), which enabled staff to detain RB at S House. RB brought proceedings in the Court of Protection to terminate the standard authorisation. The Court of Protection dismissed the application and RB appealed to the Court of Appeal. He contends that two preconditions for deprivation of liberty are 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 my view RB’s appeal should be dismissed. Because of his brain injury RB is unable to use and weigh relevant information. He does not appreciate the dangers of resuming his former chaotic lifestyle in his present condition. Therefore the mental capacity requirement is satisfied. If RB is discharged into the community, he is likely to revert to alcoholism and a chaotic lifestyle. Given his current disabilities, this is likely to lead to serious injury. Therefore confinement in S House, at least for the time being, is in RB’s best interests. I reject the submission that IM v LM [2014] EWCA Civ 37 somehow governs the outcome in this case. The court must apply the provisions of the MCA, not judicial glosses on the statute.

If my Lady and my Lord agree, this appeal will be dismissed.