Lincolnshire County Council v JK (Capacity)

This hearing is to decide questions of mental capacity in four areas. There is an extensive background but nothing that I say in relation to that background should be taken as an indication of the outcome as the questions of best interests or other welfare-based decisions which are yet to be considered. I have made those references simply to give context to the capacity decision. As Mr Justice Baker in CC v KK [2012] EWHC 2136 pointed out in paragraph 25 of that judgment any question of capacity needs to be approached with a detached and objective assessment. There is in this category of case a natural desire to be protective for an adult individual but as he wisely remarks that should not drive a Court out of concern to an outcome which is simply convenient to that point. In other words, capacity is dealt with strictly in accordance with the evidence and the statutory test.

The law is happily not in dispute. Counsel have drawn my attention to the provisions of the Mental Capacity Act 2005, to capacity in the Code of Practice and to a number of authorities. Perhaps the most recent although on an entirely different point is that of my Lord, Mr Justice MacDonald, in Kings College Hospital NHS Foundation Trust v C and V [2015] EWCP 80. In that case he in – if I may say so – a clear, scholarly and comprehensive way sets out in a number of paragraphs the legal position and I can do no better than adopt that as the starting point for my consideration. He draws together the strands of a number of previous authorities some of which were referred to in this case by learned counsel. In order simply to save time I am not myself going to cite the Sections from the 2005 Act; they are there set out from paragraph 24 onwards in Mr Justice MacDonald’s case and if this judgment were ever transcribed I could simply insert them, if required, in extenso but I have considered all of the relevant early Sections in the Act which deal helpfully and comprehensively with this test.

It is necessary however simply to draw out so that this is understood in the context of this case the key factors and I remind myself of them although merely summarising them by way of bullet points. There is of course a presumption of capacity. Second, it is possible for there to be a perfectly capacitous decision made which nevertheless may objectively be regarded as unwise. Third, in any consideration there are always the two elements, the so-called diagnostic and the functional. Fourth – and this is drawn from the Statute – in assessing an inability to make a decision the elements are understanding the relevant information, retaining it, using and weighing it, and communication. Fifth, relevant information includes information about reasonably foreseeable consequences of making a decision one way or another or failing to do so. Sixth, there is an important causal link between the two limbs or elements of the test. Seven, not every detail needs to be retained or weighed; the key is an understanding and processing of the salient factors. Eight, different areas of capacity involve different pieces of information and must be approached separately. The danger of conflation or elision must be guarded against. I mention that in the context of this case because important submissions have been made in relation to the overlap or not in terms of questions of residence and care needs. Nine, the expert evidence in the case is likely to be determinative of the diagnostic element but it is merely one aspect of the functionality test and the Court must look carefully at all of the evidence.

In this case the material comes broadly from five areas. The first is the background non-controversial facts gleaned from all sorts of places. Second is the Local Authority evidence on paper from Miss X, whose evidence was read, and on paper and live from Miss P. There are various other Local Authority documents and reports in the bundle. Third, there are the observations of those representing JK, the neutral Attendance Notes designed (and I accept entirely well-made) to assist the Court from Miss Cowans and Miss Day. Fourth, the expert evidence principally in the form of reports of Dr Lennon, although there are a number of other pieces of psychiatric material scattered around the papers some of which are commented upon by him. Fifth, information provided by Mrs K herself.

The provenance of that, as we all agree, is the importance of the protected party participating in the proceedings and as, in fact, is well known I have recently delivered a decision (A County Council v AB and others [2016] EWCOP 41) which deals with a number of important factors involving participation of P (as he or she is known generally) and the importance of Rule 95(e) of the Court of Protection Rules whereby the person in question is allowed to participate by the provision of information which may fall short of strictly admissible evidence. That was accomplished in this case by my discussion with Mrs K in the presence of some if not all of the participants in this case but on the record so to speak so that it is recorded and therefore it is important information that I take into account. I should record that this is, I think, the third time that I have had the pleasure of meeting with her and having short discussions. This is the first occasion where they have been in the form of the provision of information to form part of the decision-making process rather than mere familiarisation and scene-setting. It was a valuable exercise. She was, as ever, keen to express her view and did so clearly and pleasantly to me over the course of 10-15 minutes.

The background, which is very well set out in the papers, need not be dealt with in detail. JK is I think now 73; she is a widow; she has a son but he has some difficulties of his own and so does not feature prominently. She has had some health questions both physical and mental, and unfortunately things came to a rather severe head last year. She had the onset of a period of quite severe depression which very happily she is over. She suffered the bereavement of the loss of her husband and the increasing difficulty in terms of financial problems came to a head. Her home conditions sadly deteriorated very rapidly. We have not looked in depth as to the precise reasons for that. They are, I am afraid, clear from photographic evidence if from no other source. Accordingly, about a year ago she came to AB Care Home, originally it was thought as a respite but of course she has remained there since and now therefore has spent many months there.

In parallel the financial difficulties were being addressed. I am not sure of the exact date but a bankruptcy order has been made and the Trustee in Bankruptcy has attempted to pull together the strands of the difficult financial aspects of this case. What started as a debt from a finance company I think has escalated as a result of the costs of the Official Receiver, the Court costs and others associated with the bankruptcy together with no doubt statutory interest so that the outstanding sums are not quite six figures but are into the ninety thousands. Mrs K has two properties. One has recently been repossessed and falls therefore into the bankrupt estate and will be used to discharge the indebtedness. The more difficult question is whether the second property, which is her home, is required for that same purpose or whether the debt can be cleared elsewhere or at least protected by a simple Charge on the property avoiding sale. That all remains to be seen and is even now not clear.

At that period at the end of last year I have no hesitation in finding that Mrs K was not coping. There is much evidence to support that. Even in the short summaries at the beginning of the Social Workers’ evidence the position is plain. At E6 in Miss X’s evidence it shows that the assessments that were made at the end of last year make, I am afraid, somewhat depressing reading. Paragraph 14, for example, highlights the difficulties in her personal hygiene and the need for personal care and the ability to prepare meals and to use the toilet and so needs to be looked at carefully. She was able to undertake those matters but the question was increasingly as to the home conditions and they were, as I have said, well documented in the photographic evidence at E87 and E174, and increasingly desperate, it seems to me. Although there can be debate as to semantics on any view this house had become dangerously overcrowded, presenting no doubt tripping hazards, poor hygiene and other hazards of the obvious sort restricting access to the normal amenities in the home. For that reason Miss X at E11 paragraph 35 sets out – and again I will not read them – a long series of bullet points itemising the very real difficulties which existed at the time.

As I say, fortunately the depressive episode has been treated and has settled. Other matters to do with the onset of migraine headaches and some skin sensitivity I think are largely under control and the regime of medication is in place. The overarching diagnosis relevant to this case which was tentative but it is now confirmed and repeated by Dr Lennon is the onset, I am sorry to say, of Alzheimer’s dementia. I am sure everyone understands or has some comprehension of this condition. She has been prescribed medication and as I understand it that will if possible slow the progression but it is, as we know sadly, an incurable progressive and ultimately debilitating condition. Happily, at the present time many of the worst aspects have not set in. There is however obvious memory and cognitive impairment, as Dr Lennon records, but he is able to describe it at present time as relatively mild.

I am satisfied that my own short discussion this morning was characteristic and in many ways typical and that the sort of information provided under Rule 95(e) is probative in that it is clear that Mrs K speaks well. She has a good command of language structure and vocabulary and she has pleasant interpersonal skills. She also demonstrated throughout the hearing a great degree of concentration and attention. She interacted on occasions, interrupted – and I criticise in no way at all for that – to clarify or to express an opinion, and that showed engagement with the process. But that I am afraid is only one side. My brief discussion and all the evaluations on the papers confirm that there are significant gaps in knowledge or an inability to retain information.

A few examples. She, I am afraid, misunderstands the real nature of these proceedings. Significantly in the discussion with me she did not appear to have a clear recollection of discussing in a realistic sense the third option, namely, that of supportive living. She minimises or fails to comprehend the extent of the problems at home; looked at objectively they are substantial. She failed to address or comprehend the requirements that there will be to address those problems and overcome the practical difficulties, and although she has some comprehension of her own financial situation she has only a superficial understanding of the realities of the case.

All of that is reinforced by the evidence given by Miss P. She has provided two statements and the most recent one is the clearest and most up to date account of the position from E198 onwards. She gave evidence this morning albeit quite briefly. She was in my judgment impressive and obviously compassionate, and leaning over backwards to be understanding and fair to the predicament of Mrs K. She found herself compelled to confirm the limitations that she could perceive in her ability to engage in a proper processing or weighing of information whether financial or domestic. She says at E199 by way of an update:

She also was asked to consider the position in relation to the residential option. She said over the page at 200:

The next paragraph:

In cross-examination she was asked to some extent to deconstruct some of those comments and very fairly conceded that there was some level of understanding of the position and some of the answers were entirely consistent with the reality. But her overall view was that there was poor retention of information and a minimisation or lack of full comprehension of the true position. She also gave helpful evidence in relation to the visit that was made at Dr Lennon’s suggestion to her property. She said at page 200, paragraph 17 this:

Then she goes on to elaborate. In cross-examination it was put to her that she, Mrs K, was simply demonstrating a phlegmatic view of home conditions that she could easily cope with and would fit in with her mindset and her approach to domestic living. Attractive though the proposition was, it was roundly rejected by Miss P, if I may say so, quite rightly. It is not explicable. The reaction is, I am afraid, a superficial one and therefore a profoundly worrying one in the context of this case. She, Miss P, described Mrs K’s demeanour as unperturbed and to be unperturbed by the state of affairs demonstrated by the photographs which are conceded to be an accurate and relatively up to date account of events is I am afraid disturbing.

The expert evidence came from Dr Lennon. The problem in the case to some extent was that there is a background of inconsistent views amongst some clinical colleagues. Even Dr Lennon has modified his own view and accordingly and rightly both counsel have described this as a difficult case on that aspect and I agree. He has provided three reports, two effectively full reports together with some additional comments by way of questions and answers and they comprise Section G of the bundle and I can deal with them quite swiftly.

At G9 in the earlier report, which dates from June of this year, he paints a relatively optimistic picture. He says that Mrs K has remained a resident in AB Care Home until the present date. There is strong evidence of the improvement in her mood and cognitive function. She wishes to return to live independently in the community and there have been varying views about her capacity to make this decision. He goes on then at G12 to say that it might be that she can mentally process information about questions asked in Court and concludes that it is his opinion that she has capacity to enter into the proceedings. Later in relation to residence she does understand that she could not live in a house that was not in a good state of repair, did not have access to utilities and which was dirty and full of clutter. She recognised that she would need assistance in addressing all the problems and would be willing to accept that assistance, and that encouraged him in his view.

Similarly, in relation to questions of care and treatment at G15 he says:

In other words, although there was a note of caution in what he was saying he had an optimistic and relatively open mind about the matter. However, a number of other features emerged. He was asked to consider again the position up to date in terms of September and a rather different picture emerged. To some extent he was in possession of more material, as he makes plain in his report, but essentially he refined his assessment altogether. He says at G38, dealing with the circumstances at the Court proceedings:

Later, paragraph 13:

Then in answer to the individual questions as to capacity to conduct proceedings, G42 paragraph 27:

Later at 29:

He then goes on to discuss the question of hoarding and he was asked the specific question whether she is able to understand, retain, use and weigh the risks. He says:

Later in terms of decision-making in terms of residence at para. 32 he was asked about this in the evidence:

Then later, paragraph 35, having found that she lacked the capacity to make that relevant decision, he says:

Later, in considering the question of capacity regarding care and treatment Dr Lennon says:

Then he goes on to say she lacks capacity in relation to financial matters, and I need not read further. His conclusion is this, para. 43, p. G47:

Miss Gardner on behalf of the Local Authority adopts the evidence and the recommendations of Dr Lennon and says that Mrs K lacks capacity in all four relevant areas under consideration.

Mr McCormack in a careful and realistic submission recognises the force of some of the evidence in relation to Mrs K but he nevertheless urges the Court to approach the question of capacity in a rigorous way divorced from the temptation to act in best interests or protective measures. He invites the Court to caution itself particularly against any elision especially over the issues of choice of residence and care needs. He says it is very important to ensure that there is clear identification that the two pieces of relevant information having helpfully in his position statement set out his framework for those items of relevant information.

I accept that it is very important to judge each area of capacity separately and to avoid impermissible conflation. However, I do not accept (and to be fair to Mr McCormack he did not go as far to assert) that there is no overlap at all. The choice of the three categories of residential arrangement cannot be taken in vacuum and cannot exclude some consideration of what care arrangements and ancillary services might be provided. Questions of cost, practical availability and in this case the impact of Health and Safety considerations if the house is dangerously overcrowded cannot be ignored in a proper evaluation of the residential options.

Similarly, the implications of care provision breaking down or being refused are not the same in relation to each choice and therefore legitimately fall for consideration in a proper way with the pros and cons of the residential options. In conclusion, I broadly accept the evidence of the Social Workers and of Dr Lennon. I find that there is no doubt about it that the diagnostic element is satisfied and shows a diagnosis of Alzheimer’s dementia. There are clear and causative consequences in terms of cognitive processing and information retention. Notwithstanding Mrs K’s pleasant and superficially competent interpersonal dealings and articulations there are clear deficits in the processing skills and memory. Her minimisation of the house conditions and inability to see the enormity of the task and consequences for care packages are worrying and profoundly significant in terms of her ability to make capacitous decisions. I am sorry to say but nevertheless quite satisfied that she has an insufficient grasp of the nature of these proceedings to conduct them capacitously. She regards the proceedings essentially about financial or practical detail when clearly the decisions involved are much more profound.

Similarly, to move to the last issue, financially she only has a superficial grasp of the complications. I am not especially critical of anyone in that situation. This is a complex area and there are very many strands in play. Accordingly the exact calculation or retention of the debt figure is not precise, but nevertheless the financial problems are not understood and importantly the implication as to her financial wellbeing and residential options are by her not understood or not retained. Accordingly, she is not capacitous in that domain either.

In terms of her ability to make capacitous choice as to where she should live, I think she has an appreciation of her current circumstances and a recollection albeit in parts unreliable of her previous circumstances at home. I accept that some of the matters which precipitated her reception into respite residential care were exacerbated by her depression, which is now removed from consideration, but that was not the entire reason. I am not satisfied, I am afraid, having heard her today and having heard the totality of the evidence that she has a real grasp of the implications of supported living as a realistic third option and it is worrying that the factor in play seems to be that she has had a full explanation given and even a preliminary visit made and yet has no clear recollection. It is in my judgment more difficult for an individual to make a balanced and capacitous decision in those circumstances.

The question remains, as Dr Lennon identifies, that of the reality of the home conditions because they are very different in each of the two regimes. The failure to understand the current enormous problems as I find them to be and the steps required to mitigate or rectify that means that the salient information in that regard is not well processed and is not properly factored into the available choices in this case. In short, it is not fully understood and it is certainly not possible of being weighed. Her personal view is strongly and consistently stressed but I am satisfied that is not as a result of a balanced decision-making process. In all of those circumstances notwithstanding her instinctive and consistent view that she can make a clear decision to return home, on the matter of pure capacity I am sorry to say that she lacks capacity in that domain.

In terms of care needs that is a difficult question. She understands undoubtedly that she has a longstanding historical problem in relation to migraines and that may be that her longer term memory is more effective. She also has a more broad and non-specific memory of not coping, but she does not, I fear, understand her present diagnosis in anything other than the most superficial way or the medical implications for that and the importance of support and care needs. She underestimates her personal domestic needs and cannot properly evaluate her need for care support in any particular environment with the nuances which would change depending on the nature of that environment. To that extent the overlap works both ways. She also does not include in her reasoning the risk factor in declining appropriate care needs.

For all of the reasons given by Dr Lennon and in the evidence of the Social Workers, and it seems to me to some extent supported by Mrs K’s own information provided to the Court and through her representatives in their Attendance Notes, the evidence overwhelmingly points one way and that in this domain too she lacks capacity. I remind myself that the starting point, as I indicated, is that there is a presumption of capacity. In coming to my conclusion, that presumption has been displaced by all of the evidence and all of the decisions which flow thereafter must be taken in that context.