Newcastle City Council v TP & Anor (Capacity)

I heard oral evidence yesterday from Dr Annette Hughes in relation to determining whether or not TP has capacity to make decisions or conduct this litigation. I have also had regard to the written documentation provided by Dr M (TP’s GP), and Michael Beck, a social worker who was asked to complete an assessment in relation to a request for a standard authorisation.

The report provided Dr M is dated 10^th March 2016 and reaches the conclusion that TP did not have capacity to conduct the proceedings nor to decide about her community care and support needs. He expressed the belief that TP does not have the capacity to manage her own finances. He referred to TP’s learning disability which he emphasised had not been formally diagnosed at that stage. Michael Beck in his report dated 9^th August 2016 considered TP lacked capacity to make decisions in relation to her accommodation in the care home where she is placed or in relation to her care or treatment.

The court made an interim order on 2^nd February 2016 declaring that pursuant to section 48 of the Mental Capacity Act 2005, the court had reason to believe that she lacked capacity to make litigate, to make decisions about social care and medical needs, about contact with others, and to manage her finances. The interim declarations have continued to date and have further included a declaration that TP lacks capacity to make decisions about where she should reside.

The court is now required to determine capacity on a final basis. It is for the applicant to prove, on the balance of probability, that TP lacks capacity in the relevant areas. Again, FW has not attended this hearing despite being aware that the court is considering the issues in relation to TP and providing this morning a further letter to the court.

The local authority did not seek to question Dr Hughes, but Ms Gardner on behalf of TP asked relevant questions in relation to the conclusions which Dr Hughes expressed in her reports. Dr Hughes prepared six reports dealing with various aspects of TP’s abilities. Dr Hughes has seen TP on seven occasions between 17^th May 2016 and 17^th November 2016. Three of her reports are prepared in respect of assessment of capacity. Three of her reports are to comment upon best interests. Thus, Dr Hughes has had the opportunity to meet, talk to, and assess TP over a period of six months and has been able to form an overview of both TP’s capabilities and needs from observation over a significant period of time. The court has been able to receive a professional view from someone whom I am satisfied has come to know TP, in Mr McCormack’s words, “pretty well.”

I have been referred to LBX v K & Ors [2013] EWHC 3230 (Fam) decided by Mrs Justice Theis on 19^th June 2013 in considering the legal framework in respect of the issue of capacity. The basic starting point, however, is set out very clearly in the opening sections of the Mental Capacity Act 2005. 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.”

Section 2 deals with the preliminary position in relation to 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.”

Section 3 deals with the inability to make decisions and at section 3(1) it is set out:

“(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).”

At paragraph (3), it is set out that:

“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.

At paragraph (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.”

At paragraph 13 in LBX, Mrs Justice Theis refers to the Code of Practice and states:

“In the Code of Practice that operates under the umbrella of the 2005 Act in relation to s.3, para. 4.16 states relevant information includes ‘the nature of the decision’, ‘the reason why the decision is needed’ and ‘the likely effects of deciding one way or another, or making no decision at all’. As I have said, the burden of proof in relation to capacity is on the local authority and the required standard is the balance of probability.”

Mrs Justice Theis went on to opine at paragraph 14:

“In relation to capacity, the cases state that there is little to add to the clear words of the statute.”

However, while I bear this in mind, I remind myself of certain matters clearly set out within the authorities and statute. A person must be assumed to have capacity unless it is established that they lack capacity. If the evidence before me does not enable me to reach a decision on the balance of probability that the presumption is displaced, then this court has no further role to play as far as TP is concerned. The determination of capacity must always be decision-specific and each particular aspect of decision-making must be considered separately.

Mr Justice Peter Jackson, in the Heart of England NHS Foundation Trust v JB [2014] EWHC 342 (COP), at paragraph 7 made clear that a person is not to be treated as unable to make a decision merely because he or she makes a decision that is unwise. It is important in this regard to recall the words of Peter Jackson J in Heart of England:

“The temptation to base a judgement of a person’s capacity upon whether they seem to have made a good or bad decision, and in particular upon whether they have accepted or rejected medical advice, is absolutely to be avoided. That would be to put the cart before the horse or, expressed another way, to allow the tail of welfare to wag the dog of capacity. Any tendency in this direction risks infringing the rights of that group of persons who, though vulnerable, are capable of making their own decisions. Many who suffer from mental illness are well able to make decisions about their medical treatment, and it is important not to make unjustified assumptions to the contrary.”

Professionals, as well as the court, must not conflate a capacity assessment with a best interests assessment. At paragraph 34, MacDonald J in King’s College Hospital NHS Foundation Trust v C and Another [2015] EWCOP 80, reminds the court that:

“Within this context, it is important to remember that for a person to be found to lack capacity there must be a causal connection between being unable to make a decision by reason of one or more of the functional elements set out in s 3(1) of the Act and the ‘impairment of, or a disturbance in the functioning of, the mind or brain’ required by s 2(1) of the Act.”

Finally, in relation to considering the generality of the law which I must apply, MacDonald J in the King’s College Hospital case reminds me that it is for the court to make the decision upon capacity. Cleary, the evidence of professionals is likely to be determinative of the issue of whether or not there is impairment of the mind for the purposes of section 2(1), but it is for the court to consider all the relevant evidence which has been placed before it before reaching a decision upon capacity.

Ms Gardner in her position statement draws my attention to the fact that Dr Hughes has given evidence and is relied upon as a witness of fact as the relevant professional in offering a clinical opinion as to TP’s capacity and also in relation to TP’s bests interests. That, in those circumstances, the temptation to conflate a capacity assessment with a best interests assessment must be a live risk and also when a clinician has worked with the patient, TP, and there is a good professional relationship, there must be also a risk as set out at paragraph 39 in the King’s College case where MacDonald J stated:

“Equally, in cases of vulnerable adults, there is a risk that all professionals involved with treating and helping that person – including, of course, a judge in the Court of Protection – may feel drawn towards an outcome that is more protective of the adult and thus, in certain circumstances, fail to carry out an assessment of capacity that is detached and objective.”

Dr Hughes gave evidence that it was clear from the information available from the records and the regional disability team that it was likely that TP had experienced difficulties throughout her life. Dr Hughes stated that in her professional opinion, it was most likely that the learning disability was linked to the cerebral palsy which TP had since birth. TP herself told Dr Hughes that she was born with cerebral palsy and Dr Hughes concluded in her report:

“[TP] has an impairment in the functioning of her brain by virtue of her having a learning disability which has been present since birth. The aetiology of her difficulties is most likely related to her cerebral palsy.”

Dr Hughes told the court that in diagnostic terms, TP came within the spectrum of mild disability when applying ICD10. However, that TP came towards the severe end of the spectrum of mild disability. Dr Hughes carried out a range of tests, but because of TP’s physical disability she could not obtain a full IQ score. However, using the British Picture Vocabulary scale, which measures single word understanding by using pictures, TP achieved an age equivalent score of 5 years 3 months. The results were in the range that Dr Hughes expected. There was not a disparity between the clinical picture and the testing result.

Dr Hughes commented that TP had a lot of words which she could use. Dr Hughes expressed the view that it was quite surprising but that she thought TP had been well brought up by loving parents and supported by parents in using and accessing words. This would seem to fit the picture of what is known about TP’s history and background. Dr Hughes emphasised, however, that there were gaps in TP’s understanding. The Wechsler adult intelligence scale was also used in testing. However, only two of the four index scores were tested, namely the verbal comprehension subtest in the short term and the short-term memory subtest. The verbal comprehension score was 58, well into the learning disability range and broadly consistent with the clinical picture. The short term working memory test provided a slightly better score at 63 but not, Dr Hughes said, dramatically so. She referred to TP’s slight relative ability to remember which may make people think that she has understood when, in fact, she has not.

Dr Hughes gave evidence that it was a marginal improvement but that B was performing in the extremely low range of cognitive ability. TP has a global impairment in her intellectual ability and while it may superficially not be at first apparent it was present during all the seven visits that Dr Hughes undertook. Dr Hughes did not see any change or difference over the period of time to lead her to question the results which she had obtained. Dr Hughes told me that she was curious to see if TP would grow and develop in the care home setting and curious to see TP alone without the domination of FW and his presence, but Dr Hughes told me that TP’s intellectual cognitive function was not changed by reason of her being apart from FW over the period of time.

I am satisfied that the diagnostic test is made out. I am satisfied, having heard her oral evidence, that Dr Hughes conducted a thorough, well explained, and carefully considered assessment in relation to not only the diagnostic test but also in respect of TP’s functioning. Dr Hughes is an experienced principal clinical psychologist with considerable experience in providing psychological services to adults with learning disability. She is well used to carrying out complex capacity assessments of adults with learning disabilities and I am satisfied that she used her expertise within the assessments which she has provided to this court in respect of TP.

Ms Gardner has emphasised the necessity to be absolutely clear about the causative nexus to link sections 2 and 3 of the Act and, to this end, took Dr Hughes through the various relevant decisions in respect of which the court must determine the issue of capacity and whether TP is capable or otherwise of making decisions, and whether or not TP lacks capacity for the purpose of the Act. The functional test focuses upon the ability of the person to make a particular decision and the processes followed by that person in arriving at the particular decision. The court must first focus upon the functional aspect of whether the person concerned is unable to make the decision in question and, if so, whether the inability is because of an impairment or disturbance of mind.

In relation to residence, Ms Gardner referred to the checklist helpfully set out at paragraph 43 by Mrs Justice Theis in LBX, and examined first with Dr Hughes the question whether TP knew what the options for residence actually are. Dr Hughes was asked if TP understood the options and was taken specifically to D97, paragraph 9, which described the visit on 9^th September. I read what is set out at that paragraph:

“I explained that the court and judge would decide if she returns to live with FW or not, but in the meantime, those working with her may want to support her to move to a smaller placement with other people with learning disability. TP said that if she could not go back to FW, she would want to stay at X care home. She said that she likes the staff and would not want to move somewhere else despite my explanations that she would not have to live with individuals with dementia that in a smaller house she would likely be able to spend more time with staff. At the end of the session, TP showed me to the door and on the way, I was pleased to see warm interactions between her and the other residents and staff. She and a member of staff showed me pictures of recent activities she had been doing in the home and spoke of how she enjoyed watching television in the evening, holding on to this female member of staff’s hand.”

Dr Hughes explained that TP is concrete in her thinking and tends to focus upon which she knows because of her learning disability. She struggles with abstract thought such as picturing herself in a different setting. In relation to looking at the type of support on offer and in relation to asking, “How do I feel about living here? What are the components of my care?” Dr Hughes expressed the view that TP is not able to conceptualise those options in a very basic simple way.

In oral evidence, she said of TP and I read from my note:

“At a superficial level, TP is a compelling and delightful character and one might feel has the understanding. However, when you dig underneath, her thinking and reasoning falls apart essentially. TP benefits from having a concrete experience.”

In relation to the location of properties:

“TP is very keen to return to the Gosforth area”. Dr Hughes explained that “TP knows that area, knows the people and the shops, and it is familiar and appealing to her. TP struggles to visualise herself in a different setting and struggles to see that the positives could be replicated elsewhere. TP is not able to visualise that there would be any advantages living elsewhere.”

Dr Hughes expressed the opinion that:

“The prime driver in terms of her difficulties and in struggling to identify advantages and disadvantages is her learning disability. She is keen to return to AS. So there is an emotional element but it is secondary to the learning disability. TP understands the concept of permanence and that her placement in the care home is temporary. TP knows a decision is to be taken and indeed she made it very clear to me when I visited her that she knows what decision has been made before Christmas. It is clear that she is pinning her hopes on a decision being made before then.”

In relation to the knowledge of activities and opportunities within the care home setting, even though at the time that Dr Hughes considered this TP had not been at the placement all that long and did not know the range of possible activities available at the care home, Dr Hughes stated that it did not alter her view as in carrying out her assessment, Dr Hughes noted that TP struggles to think outside her immediate experience. The evidence therefore provided by Dr Hughes is that TP is unable to weigh information in that the information she understands is that which she has experienced and to project forward to a different reality is where and when TP’s understanding falls down. This is due to her learning disability.

In relation to her care needs, TP can understand what the care home support looks like, but Dr Hughes was not sure that she could weigh up the benefits and disadvantages of that support. TP told Ms Prescott, and indeed myself, that she did not need support but staff at the care home will say that TP has pleasure in their company and as I referred to, holding hands and watching TV. TP, in fact, articulates quite the opposite, although she says the care home staff are every kind to her, her wish of course is to be with FW or alternatively on her own. Dr Hughes stated:

“She is not able to verbalise and truly understand her need for support in a practical and emotional way. In relation to health needs, TP has a range of health needs in respect of which I am satisfied she does not have full understanding.”

Dr Hughes gave the example that TP stopped going to the regional disability team because she did not recognise that the team should have an ongoing role in respect of her care. TP has a general tendency to focus upon the most recent experience and the concrete aspect of the recent experience. She knew that the regional disability team were trying to make her hand straighter and she was able to indicate that, but she was not able to look at her support needs in the round. The regional disability team was also concerned about her mobility, but this is a more abstract concept which TP did not understand.

I have made findings earlier this week about influence and coercion. There needs to be the consideration of the circumstances and influences upon TP’s decision-making. However, Dr Hughes gave oral evidence as follows:

“It is difficult to tease out what is influencing TP’s decision-making. We must be mindful of the message that TP is being given about support and accessing support. The negative references that she has made about social workers indicate that she is holding in mind what AS has said to her, but when you pin her down and consider her [that is TP’s] ability to weigh up, it is her learning disability that comes to the fore. She is a woman with a great deal of cognitive disability.”

There is no issue about TP’s ability to communicate. She is able to communicate and interact with a range of people.

I turn then to look at contact. TP understands the different types of contact, such as letters, telephone, face to face contact, and she knows individuals and their relationship to her or place in her life. She knows where FW lives and is able to tell an enquirer where FW lives despite telling Dr A that she did not. Also, she knows that her sisters live in the USA. It seems that she knows some of AS’ faults and is able to comment that she knows he is not nice to other people. She largely describes the positives in respect of FW. When asked the specific question of whether TP was able to weigh up the positives and negatives, Dr Hughes expressed the view that TP was not able to do so and that TP’s looking at and considerations of the positives was very superficial. Dr Hughes told me that as far as looking at the positives are concerned FW buys her perfume, he cooks for her, but TP is not able to consider the full force of the relationship or potential impact the relationship could have upon her if she was not attending appointments, nor could she understand the nature of the financial situation in which she had been placed and that TP considers everything in concrete terms.

Dr Hughes described TP as vulnerable to the views of others. She gave the example of TP when she went to visit her offering her a bar of decorative soap which was on the window sill in TP’s room. Dr Hughes said:

“If you are nice to TP, she will give you the earth. She was ripe for the plucking when she met AS. He could have been someone else.”

In relation to TP’s view of FW and her reluctance in relation to engaging in contact with her sisters, I noted Dr Hughes’s evidence when she said:

“You would need to consider the intensity and frequency of TP’s contact with FW against the intensity and frequency of any other views presented to her. AS has been part of TP’s life for six years and given her what she needs. Her sisters are distant. I think it would take a considerable length of time before TP adopts a different view from that of AS or about AS.”

The issue of contact is most difficult to tease out. It is only because of TP’s learning disability that the coercion has been able to take such effective hold. Both exist together. The learning disability means that TP’s experience is a concrete experience of FW and she has difficulty in stepping back and considering any wider aspects of her life. Dr Hughes told me that when someone is not there with TP, she really struggles to think about whether she wants to see them and their role in her life. Her relationship and contact with KS is illustrative of this point. TP had told people that FW was not nice to her, indeed assaulted her, but not having seen FW for some time was able, when asked, to say, “AS is all right, really. It’s my fault, really.”

There is evidence in the social work records that TP had been financially exploited by others and I look at C3 in a statement of Laura McDonald who refers to the records at paragraph 13:

“TP’s vulnerability when she befriended is a matter of record. TP had been subjected to financial abuse in 2006 and in 2009 by men she had befriended. Both incidents were dealt with under the city council’s monthly agency adult safeguarding procedures.”

I am satisfied on all the evidence before me, both written and oral, that the presumption of capacity is displaced in relation to residence, care and contact, and the ability to conduct these proceedings or enter into a tenancy agreement. TP’s learning disability means that she cannot understand, retain, use or weigh up information as part of a decision-making process or use and weigh the consequence of deciding, “I will” or, “I will not have contact,” where she will live or what support or care she needs. Dr Hughes’s evidence was clear and considered.

Ms Gardner submits that the official solicitor accepts the evidence given by Dr Hughes and is entirely satisfied on behalf of TP with the conclusions as advanced, as am I. I find that TP lacks capacity in the relevant areas.