X (No: 2. Declaration that X has capacity)

This case was last before me on 25 October 2016 when, as now, I was sitting throughout in public. I gave a short judgment on 25 October 2016 which has been publicly available for several weeks on the BAILII website under neutral citation number [2016] EWCOP 44. I will not repeat anything which is contained in that judgment. The present judgment should be read and considered as a continuation of it.

The order of 25 October 2016 had three principal components. First, the local authority were required to serve a commissioning decision letter setting out what packages of care, if any, they would commission for the patient if the patient had capacity to decide to return to his home and chose to do so. The letter was required to include consideration of direct payments to the patient.

The second component was that by the middle of last week Dr Michael Isaac, being the jointly instructed independent expert in this case, and also the treating psychiatrist at the hospital where the patient currently resides, were both required to file and serve updating reports as to capacity.

The third component was that this case would be restored for further hearing before myself here today “to make further directions in this matter and determine whether a final hearing should be held on the issue of the patient’s capacity to decide about his residence and care.”

With regard to the first component and the commissioning decision, the Head of Adult Safeguarding and Learning Difficulties in the local authority wrote a further decision letter dated 31 October 2016. The gist and effect of that letter is that the local authority remain unwilling to fund a package of care in the patient’s home with two carers present around the clock at a cost of a little under £500,000 per annum. The decision maker did also consider a further quote that they had obtained from an alternative provider at the lower sum of £338,000 per annum, but he decided that even that cost “is unsustainable in the long-term. For similar reasons [to the earlier quote at just under £500,000] the local authority would also decline to commission a care package at this lower rate.” The decision maker went on in his letter to consider whether the local authority would be willing to fund less expensive packages, essentially involving less intensive provision of carers. He concluded that they would not, essentially for two reasons. One reason was that they considered that there were potential risks to a single carer caring for this particular patient alone and that the wellbeing of the carers required at least two to be present at all times. The other reason was that, in any event, the local authority considered that the needs of this patient are so great and that he so frequently needs two people present to turn him or assist him in other ways that, realistically, two people would have to be funded and present at all times.

The decision maker also decided that they were not willing, in this case, to make direct payments to the patient himself, which he considered “an inappropriate way to meet his needs”.

The upshot is that there is, in fact, no money currently on the table from the local authority to enable the patient to return to his home and be cared for there.

In this regard, there has been a recent development in that on 10 October 2016 there was consideration by the Independent Local Resolution Panel of a longstanding dispute in this case whether the necessary care needs of this patient should be funded by the local authority or by the local Clinical Commissioning Group (CCG) within the NHS. The formal decision of the Independent Local Resolution Panel has not yet been received, although I have been told today that it is informally understood that the decision of that panel will be that the care needs of this patient should be funded by the NHS through the local CCG rather than by the local authority. If, indeed, that does turn out to be the final decision of the Independent Local Resolution Panel and to be the last word on the topic of whether it is the local authority or the CCG who must fund this patient’s care needs in the future, then, of course, the decision of the Head of Adult Safeguarding and Learning Disabilities in the local authority will effectively fall away and future funding levels will fall to be decided by the CCG.

The second component of the last order was further examination of the patient and further consideration of his capacity. As I recorded in paragraph 9 of my judgment of 25 October 2016, the then subsisting opinion of the jointly instructed independent expert, a consultant psychiatrist, Dr Michael Isaac, was to the effect that the patient “lacks the capacity to decide on his residence and on his residence and care”. That was also the subsisting opinion at that time of the treating psychiatrist at the hospital where the patient currently resides, as I set out at paragraph 10 of my earlier judgment. Further, as I described at paragraph 20 of my earlier judgment, the most recent and still subsisting declaration as at 25 October 2016 with regard to capacity to make decisions about where he should reside was that made by Peter Jackson J on 12 January 2016 that:

“And it is further declared in the interim that:

Pursuant to section 48 of the Mental Capacity Act 2005, the court has reason to believe that [the patient] lacks capacity to make a decision as to where he should reside.”

However, as I also indicated in paragraph 21 of my earlier judgment, there was considerable concern on the part of the Official Solicitor as to whether or not, by now, this patient objectively does lack capacity to make decisions with regard to where he resides. As I said then, Ms. Bridget Dolan QC, instructed by the Official Solicitor on behalf of the patient, submitted at the last hearing that “there is a continuing necessity for the court to determine on a more informed and less interim basis whether or not the patient does lack capacity to make decisions with regard to his residence and care.”

Since then, the independent expert, Dr Michael Isaac, has visited the patient again in the hospital where he currently resides on 15 November 2016, which was only last week. I now have a further and full report by Dr Isaac, itself dated 15 November 2016. His report begins with a short section headed “Summary”. In that he wrote:

“The issue of capacity is ultimately for the court to determine, having regard to all the evidence before it. For my part, I now consider that [the patient] has (or has regained) the capacity to make decisions about his residence and care. My reservations about [the patient’s] capacity to make decisions about his residence and care have been largely assuaged by my more recent interview and the material received. While his overall cognitive function has probably not changed much since I met him about four months ago, [the patient] appears more reflective and realistic about his options, and I consider that he has been enabled to exercise capacity by his efforts and by those involved in his current care. None of this conveys immunity from foolish or ill-advised decisions; but these are not issues of capacity.”

That summary of his opinion is, of course, elaborated in more detail within the body of the report itself. At paragraph 15 Dr Isaac said:

“The patient was alert and orientated. His talk was spontaneous and normal in syntax and prosody, with no psychomotor retardation. I could detect no evidence of abnormal mood and there was no evidence of suicidal ideation. I could find no current evidence of psychotic ideation and [the patient] denied the same. He showed normal emotional reactivity and, cognitively, he was the same as I remember him from July 2016.”

The report then narrates in some detail the course of the conversation and discussions between the patient and Dr Isaac, and concludes with a section headed “Opinion”. At paragraph 38 Dr Isaac wrote:

“Based primarily on my present interview with him, as well as on the other reports that I have received, I am much more reassured today than I was in July. In my view, [the patient] has the capacity to make decisions on his residence and on his care.”

He continued:

“What has changed … is that [the patient] has been much more reflective and realistic about his predicament. He was able to outline the essence of the situation without any prompting from me, indicating that he was able to retain necessary facts in coming to a decision. However, my main concern in July 2016 was whether [the patient] could properly weigh the pros and cons of particular courses of action in relation to residence and care. For in July, I felt that he had a rather fixed view of what he wanted and could not properly weigh not only the advantages and disadvantages of his wish, but could not, it seemed to me, understand the existence or nature of obstacles or limitations of his desires. The picture is different now. The issue of [the patient’s] residence and care is clearly a complex one and the various sums quoted seem to differ almost by an order of magnitude. [The patient] appears to have a lively appreciation of the various cost concerns…”

A little further on Dr. Isaac said:

“[The patient] has in the past shown evidence of impulsivity and it is probable that some of this impulsivity can properly be attributed to his traumatic brain injury. However, he seems to have been an impulsive individual even before his injury and so I think that, on balance, his brain damage does not play a significant or material part in his decision making.”

So, the very clear and fully explained overall conclusion of Dr Isaac is that the patient currently does have capacity to make decisions with regard to his residence and care.

There is also a report dated 9 November 2016 from the consultant psychiatrist under whose care the patient is at the hospital where he currently resides. That psychiatrist last actually met the patient prior to making his report on 5 November 2016, which is less than three weeks ago. The opinion now of that treating psychiatrist is that:

“[The patient] has good understanding about his care needs. He is able to describe the financial constraint to the provision of community care and contrast it with the cost in hospital and explain the significance of two to one care in terms of its impact on cost. He provided the information without prompting or reminding in a well-ordered and clear manner. After consideration, he suggested two solutions which may not be implementable but are reasonable alternatives to consider. In so doing, he demonstrates an ability to think systematically and problem solve. He understands that he requires high levels of professional care and that if it is only available in hospital that is where he will have to remain, even if it is not his preference. He demonstrates an understanding about the concept of capacity and how it applies to him in relation to the court hearings. He is able to understand and retain new information in the context of a conversation and to construct meaningful responses that show an ability to consider, weigh up and appropriately modify his responses and understanding.”

The overall conclusion of the treating psychiatrist in his report is that:

“[The patient] is able to understand, retain and weigh up information relevant to decisions about his care and residence and to express his preference, choice and opinions. It is my opinion that he has capacity to make informed choices and decisions about care and residence.”

As well as those two reports from the psychiatrists, I have also an attendance note made by the still very committed solicitor who is instructed by the Official Solicitor in this case, to whom I referred at paragraph 17 of my previous judgment. The solicitor visited the patient yet again on 3 November 2016 and I have his attendance note and account of that meeting. Of course, I am not a psychiatrist, nor is the solicitor, but it certainly appears from that attendance note that the patient was able to discuss his situation and this case and the funding and other issues with the solicitor in an articulate, informed and rational manner.

At the end of last week, on 17 November 2016, the local authority issued a further application in these proceedings supported by a witness statement from their solicitor. That application seeks “permission to withdraw the proceedings. This is subject to any contrary view that the CCG may have. However, if they wish to continue with the proceedings, then the applicants seek an order to withdraw from the proceedings.”

The underlying basis of that particular application is clearly that in the light of the informal indication as to the outcome and decision of the Independent Local Resolution Panel of 10 October 2016 the relevant funding body in this case is no longer the local authority but, rather, the CCG. The CCG themselves are not currently parties to these proceedings, but they were formerly parties and by paragraph 7 of an order made by Peter Jackson J on 28 September 2015:

“[The CCG] is discharged as a party but is to be reinstated as a party in the event that the outcome of the dispute to be brought by [the local authority] to the decision of the NHS CCG … that [the patient] is not eligible for continuing health care (“CHC”) is that [the patient] is eligible for CHC.”

Since it is understood that the determination of the Independent Local Resolution Panel is to the effect, and will later be formally reported as being to the effect, that the patient is eligible for CHC, the submission of the local authority is that (at any rate once the formal decision of the Independent Local Resolution Panel has been received) the CCG should, by operation of the order of Peter Jackson J, be reinstated as a party to these proceedings.

By their application notice issued last week the local authority seek alternative outcomes, either that the proceedings as a whole are withdrawn; or if the CCG are reinstated as a party and wish to continue the proceedings, then, at any rate, the local authority can withdraw from the proceedings.

Today, Ms. Bridget Dolan QC, who appears on behalf of the Official Solicitor, submits that the evidence with regard to capacity is now so clear that there should be a final and positive outcome to these proceedings today, by my making a declaration pursuant to section 15 of the Mental Capacity Act 2005 that the patient has the capacity to make decisions regarding his residence and care. If I do make a declaration to that effect, then it would necessarily follow that these proceedings must be dismissed, for the Court of Protection simply has no power or jurisdiction whatsoever in relation to persons who do have capacity to make the relevant decision or decisions. Section 15 itself provides as follows:

“15.

Power to make declarations.

(1)

The court may make declarations as to -

(a)

whether a person has or lacks capacity to make a decision specified in the declaration…”

Pausing there, it should be noted that the power under section 15 is discretionary, since the section employs the word “may”.

On behalf of the local authority, Miss Peggy Etiebet resists that I should make a formal declaration that the patient does have capacity. She submits, rather, that I should, as the application issued last week seeks, give to the local authority permission to withdraw these proceedings. That application is made under rule 87A of the Court of Protection Rules 2007, which provides as follows:

“87A. Permission required to withdraw proceedings.

(1)

Proceedings may only be withdrawn with the permission of the court…”

Pausing there, the power of the court under that rule is also discretionary, since that rule also employs the word “may”.

Miss Etiebet makes two essential submissions. First, she submits that both chronologically (since her application was issued last week) and logically, consideration of whether or not to give permission to withdraw the proceedings requires to be considered first, and before I give consideration to the oral application made today by Ms. Dolan that I make a formal positive declaration as to capacity under section 15. The second strand of the submissions of Miss Etiebet is that, in any event, the local authority do not accept, despite the recent evidence from the two psychiatrists, that the patient does indeed have capacity to make decisions with regard to his residence and care. She says that before I were to make a formal declaration to that effect, there should be the fuller hearing that has already been earmarked for 28 November 2016, at which, she says, the local authority and she, herself, would seek to “test” the evidence of the psychiatrists by cross-examination. It should, however, be made clear that the local authority are not, so far as I am aware, in possession of any positive evidence contradicting the opinions of the two psychiatrists.

For her part, Ms. Dolan submits that once it has become apparent by the evidence of the two psychiatrists that this patient does, indeed, have capacity to make decisions with regard to his residence and care, it is not justifiable and, indeed, (although she did not use the word) would be exorbitant for the court to maintain these proceedings in being. Further, she submits that as he has been the subject of an interim declaration by this court for many months that (on an interim basis) he lacks capacity, it is only fair to the patient that there should be, and he is entitled to the benefit of, a formal declaration pursuant to section 15 that, in fact, he currently does have capacity.

My view on these competing arguments is as follows. I am faced today with applications that I should exercise discretions arising both under section 15 of the Act and rule 87A of the rules. I do not accept that I need, chronologically or logically, to exercise my discretion under rule 87A before giving any consideration to the discretion under section 15 of the Act itself. Both these applications are currently before the court at a single hearing, and it seems to me that I should give composite consideration to my exercise of the discretions under them. I accept the submission of Ms. Dolan that when there is clear evidence from two consultant psychiatrists, who formerly both considered that a patient lacked capacity but now consider that he does have capacity, the court must be very cautious about improperly leaving the proceedings in being. The existing jurisdictional foundation for these proceedings is the earlier interim orders that the patient lacks capacity, which themselves subsisted on the basis of the earlier opinions of both Dr Isaac and the treating psychiatrist. Those psychiatrists having now changed their opinions, I could not leave those interim declarations in place. In the absence of an interim declaration, the presumption of capacity under the Act would, in any event, revive. But it does go further than that. The clear opinion of these two consultant psychiatrists, both of whom have now known this patient over a period of time, is to the effect that he does have capacity with regard to his residence and care.

Further, as I have said, the picture which emerges from the recent attendance note of the solicitor is a picture of lucidity and rationality, which the patient is able clearly to express.

In these circumstances, it does seem to me that the evidence is currently all one way. It is to the effect that a patient, who was previously considered to lack capacity, does now have capacity. I agree with Ms. Dolan that, at any rate on the facts and in the circumstances of this case, that conclusion should be clearly and formally expressed by a declaration made under section 15. It is true that the written evidence of the two psychiatrists has not been “tested” by cross-examination by or on behalf of the local authority but, as I have said, they do not have any positive evidence to the contrary.

For those reasons, I propose now formally to declare, pursuant to section 15(1) of the Mental Capacity Act 2005, that this patient has the capacity to make decisions regarding his residence and care.

It necessarily follows from that that these proceedings must be dismissed, and they will be, and the final hearing fixed for the end of November will be vacated.

It is a further consequence of those decisions that I do not grant permission to the local authority pursuant to rule 87A to withdraw these proceedings since, with the words I have now uttered, they have already ceased to exist.