MB, Re

This is an application on behalf of MB by his litigation friend and RPR to challenge the standard DoL authorisation granted on 30th April 2016 for 12 months and renewed most recently on 28th April 2017 for 6 months. The relevant local authority is SCC who share the costs of his care home placement with a local commissioning group CCG. All parties have been legally represented at this most recent hearing. I am grateful to leading counsel for the clarity of their respective arguments and the presentation of the case.

MB's mother SB has been an interested party at previous hearings and has attended by telephone. She is aged in her early 80s and lives some distance from the court. The proceedings have been retained in Wales to allow MB to attend and meet the judge if he wished. I met with MB on the afternoon before the hearing and he was present in court for almost all of the hearing supported by a member of staff from the care home and his RPR. His brother TB and a family friend were also in attendance although SB decided that she did not want to attend by telephone and it appears that was agreed between MB and SB the night before he came to see me based on what he told me.

SB has had the opportunity to apply to be joined as a party but has not done so. Her views have not changed from those she expressed to Mr Justice Charles in 2007, 2008 and 2014 on the cause of MB's difficulties. She has told the court at previous hearings and by later emails that the issues of deprivation of liberty should be resolved speedily. Although counsel of choice were not available for this hearing I decided to maintain the listing because of the additional degree of urgency that attached to the case after the independent expert Dr Layton reported that MB lacked litigation capacity but had capacity to make decisions about both residence and care. The implication of the report would be that the court lacked jurisdiction to make orders about MB if he had capacity to make decisions for himself.

I accept that this case has a complex previous history both in and out of court. It is set out in the judgments of Mr Justice Charles and it is unnecessary to repeat it here. There is professional agreement within the papers that MB has a moderate learning disability, an autism spectrum disorder and complex epilepsy. He has lived at the care home under orders of the court since 14^th July 2008. He is regularly reviewed for his epilepsy by local clinicians. He experiences seizures periodically and is prescribed medication to control them. It is not in dispute that he qualifies for care under the Care Act 2014 and that SCC have statutory obligations to him irrespective of the outcome of the application and this hearing.

My attention has been drawn to paragraph 36 of the judgment of Mr Justice Charles reported at [2007] EWHC 2290 where he records the effect of the medical evidence then before him. It was that MB lacked capacity to make decisions about his residence and care. That view has been maintained consistently in assessments of MB up to Dr Layton's report. It is a significant plank in the argument of Mr O'Brien QC that there should be a second report on MB's capacity notwithstanding that the report of Dr Layton was a joint instruction. He argues that the issue is very important and a move to his own home in the community has been considered a "huge risk”: paragraph 11 of the judgment of Mr Justice Charles [2014] EWCOP 22. A short delay for a second report will not be harmful because there is no identified available alternative placement. If the risk is huge the court should have sufficient evidence to resolve the now apparent conflict between years of clinical opinion and a report which infers capacity.

Miss Khalique QC for MB argues strongly that Dr Layton has adopted the correct legal approach and has discussed with MB the salient issues that go to the decision making about both residence and care as identified in recent authority. He has specific expertise in learning disability and autism which puts him in a good position to express a view on MB's ability to weigh up the salient factors even though MB may not be able to answer the "why" question.

It is common ground that the Act requires the court to apply the presumption of capacity and that one of the criteria in section 3 has to be met before the court can find that MB lacks capacity. He is entitled to support to help him to make the decision. Capacity is both issue and time specific. The fact that he may make an unwise decision does not mean he lacks capacity. The main area of debate in Dr Layton's evidence has centred on section 3(1) c of the Act and whether MB can use or weigh the information as part of the process of making the decision.

The court gave permission for the instruction of Dr Layton for two main reasons. The most recent capacity assessment by Dr Wiltshire had arrived at the conclusion that MB lacked capacity to communicate his decision and the reasoning set out in the standard document was too brief to interpret what he had taken into account in his conclusion. The RPR’s view was that MB did understand the information relevant to the decision and was able to communicate his decision. She was concerned that this might be a case of borderline capacity. The option of questions to Dr Wiltshire was raised by the court since it may have been possible for him to clarify his conclusion on MB's ability to communicate his decision but I accepted the submission that it would be unsatisfactory because the entirety of his assessment might be flawed depending on his reply and it would be a piecemeal approach. His assessment was also over 12 months old.

Dr Layton spent 3 hours with MB who was supported by his RPR. Her presence and involvement in the assessment was neutral as far as I can see apart from an attempt to prompt MB with an answer early in the interview which was prevented by Dr Layton. He divided his questioning into two sections which allowed him to assess MB's responses to the salient issues on residence and care. It is not argued by Mr O'Brien QC that the questions were inappropriate or did not cover the necessary material.

A second interview was considered by Dr Layton because he appreciated that his conclusions would be controversial and he hoped to get more detail around the weighing up process. He had sufficient material to reach a conclusion after his interview with MB. He feels he was able to get more detail from MB than Dr Wiltshire and this may explain why they have reached different conclusions.

Dr Layton was able to infer capacity from the answers given to the salient issue questions, some of which were logical and others were spontaneous and took into account information that MB was presented with. In answer to the court he advised that there were a limited number of pivotal answers that MB gave which influenced his opinion of capacity and he highlighted them as paragraph 60, 65, 66, 74, and 80. He relied more on the totality of the answers that were given.

He was aware that the issue of MB moving to independent accommodation with support has been his wish and SB's for over 10 years and therefore there is a risk that his answers are rehearsed. Previous opinions have suggested that MB has capacity to express his wishes but not capacity to make decisions. However, he accepted that there is less certainty about MB's capacity because of his difficulties with abstract concepts and his inability to describe how he weighs the information. He does better when presented with concrete options. This has never happened in respect of a move to his preferred area and options have not been considered because of the belief that he lacks capacity.

There is clear evidence that he has the ability to learn safe routines with support and to follow them without risk. He has an understanding of the risk factors linked to his epilepsy and how to manage them as well as the importance of taking his medication.

However, his autism predisposes him to high levels of anxiety which impairs his cognitive performance and therefore, his capacity. When he is affected by anxiety it can take between minutes and days to bring him down during which period he would lack capacity. He may not have capacity for short term decisions during the day. He could also lose capacity on any day when he would not be able to weigh matters and he is affected by unpredictable events such as interactions with others. Dr Layton accepted that it was very difficult to be sure whether MB has flashes of capacity or flashes of losing capacity. He described MB's capacity as delicate and fragile.

One of his controversial views was that MB would need a Deprivation of Liberty provision to deal with such periods. It is accepted that this is an impossibility legally or as part of anticipatory care planning to manage periods of apparent incapacity because MB cannot consent to it. Dr Layton believes that it could be managed by a carefully developed care plan and bringing in a different team or members of staff to manage MB. An alternative would be to make an urgent Deprivation of Liberty application or authorisation. He referred also the use of Mental Health Act powers in such periods which was part of the debate in the 2007 proceedings.

In this respect Dr Layton preferred empowerment of MB and managing issues as they arose rather than a more risk averse and protectionist approach. This may well stem from his particular area of expertise in autism and learning disability. He seemed to be influenced also by the fact that although MB can overestimate his abilities he does not do things that are risky. For example, he has not attempted to leave the care home and make his way to where he wants to live and he had an understanding of his basic care needs in a broad sense.

One of MB's difficulties is that he cannot generalise from the past to a new situation and an overload of information can lead to him losing capacity. Therefore, he needs substantial support to deal with new situations. Dr Layton concluded that with support he would have capacity to make decisions about his residence because this is a decision made over a longer period of time and did not require the capacity to cope with a lot of information over a short period. It would also be a decision in relation to a realistic option on offer and it could be done over several weeks to several months.

If Dr Layton is wrong that MB does have capacity in the relevant domains he suggests that MB can be assisted to gain capacity in the area of understanding through support and work from an occupational therapist and from his RPR. It is more doubtful that he can be assisted on weighing the information because of the long- term nature of his difficulties with flexibility in thinking and in abstraction. Dr Layton was challenged by Mr O'Brien QC to explain what would have brought about such a change in MB’s capacity. He accepted there was no obvious answer and to a greater extent it could only be a speculative answer because there is no evidence of any specific event or change in his regime to which it could be attributed.

Miss Khalique QC and Mr O'Brien QC wanted to introduce material that had not been lodged as evidence at almost the very end of Dr Layton's evidence. Mr O'Brien's application was in response to Miss Khalique's. It was explained by Miss Khalique QC that the recordings from the care home had only been available very close to the hearing and there had not been time for them to be considered. Their potential relevance could have been raised at a much earlier stage and the purpose of introducing them seemed to be to bolster answers already given by Dr Layton. It was also too late to ask Dr Layton to consider the historic reports which was Mr O'Brien QC's application. If they were relevant there had been about a month since the request for an urgent listing and the court was asked to give SCC time to consider the report from Dr Layton before a listing. It was also less than helpful for new information to be sprung on him. A decision was made at the time of his instruction about the material he would need to see for his assessment. I refused both applications and gave my reasons.

I accept the point that this was a joint instruction which is the accepted practice for expert evidence and that it is unusual to have a second opinion. However, there are very significant issues at stake which go to the heart of the court's jurisdiction. Dr Layton did not and was not invited to go into a lengthy critique of why his opinion differs so markedly from years of previous reports. He relied on a different and more enabling approach to that used in the past as an explanation at least in part. It is also correct to say that his opinion was/is unexpected although that does not mean that it is wrong.

The test under the Court of Protection Rules 2007 Rule 121(1) is whether the expert evidence is reasonably required and what evidence is required is a matter for the court. The question is do I have sufficient evidence to reach a conclusion that is so different from the approach to this case over some 10 years? The area of genuine difficulty is the weighing process and whether the evidence gleaned by Dr Layton through his questioning of MB is sufficient to lead to the inference of capacity when his clinical conclusion is that there may be significant periods unpredictable in timing and duration and may vary during an individual day. It is a valid consideration when should the time specific element of the decision be judged.

It is certainly possible for another view to be taken or for a second opinion to come to the same conclusion. Dr Layton's evidence was helpful in understanding how he had reached his conclusion but it raised issues about how clear cut his conclusion on capacity actually was and the implications of its fluctuating nature. At times in his evidence I had the impression that he wanted a different approach to planning for MB and he does disagree with the risk averse approach. I was also not clear how MB's ability to weigh matters could have improved in light of his overall diagnoses.

The significance of the decision (and the possibility of further litigation if Dr Layton is too optimistic on the issue of capacity) warrants a second report. It should be from another expert who brings the same clinical background as Dr Layton to the assessment process or has experience of assessing people with similar difficulties to MB. I was not persuaded that the expert suggested by SCC had a relevant background and I do not want to find myself after a second report reaching a potentially life changing decision for MB having to decide between peas and beans on the basis that Dr Layton has more relevant experience which makes his conclusions more reliable. I would welcome a more tightly drafted letter of instruction so that the report focuses on the evidential issues which emerged in Dr Layton's evidence and more detailed consideration of what historic papers should be provided for the second instruction. A meeting of the now two experts before any further hearing is also desirable.