SL, Re

SL was born on 17 September 1956 and is now 60. She has two brothers, IL and NL and previously lived with them and her mother in housing association accommodation. She has been diagnosed as having schizophrenia and obsessive compulsive disorder. She first came to the attention of mental health/social services professionals in around 2012 when there were concerns about self-neglect. Her mother died in 2014 and it appears that her condition deteriorated to such an extent that on 12 March 2015 she was admitted to hospital, initially under section 2 of the Mental Health Act 1983 (the MHA). At that point she had ulcerated sores on her legs which were a cause of concern. She remained detained under section 3 MHA until her discharge on 9 November 2015. She was then moved to supported living accommodation where she remains. She is subject to a community treatment order (CTO) as she has a history of not taking her medication.

An application was made by the London Borough of Brent (the Applicant) for an order authorising the deprivation of liberty occasioned by her care regime using the streamlined procedure in form COP DOL10 under the Mental Capacity Act 2005 (MCA). SL has been consistent in her wish to return home but it is the Applicant’s case that it would not be in her best interests to do so. The application was made on 8 April 2016. An initial order was made on 12 April 2016 appointing a rule 3A representative. The matter came before District Judge Batten on 12 May 2016 who was not satisfied that the application was suitable to be dealt with under the streamlined procedure and she gave directions for a hearing. The first hearing, listed for 15 June 2016, had to be adjourned because there had been a failure to comply with the order of 12 May. At the hearing on 12 July 2016 an order was made inviting the Official Solicitor to act on SL’s behalf and a section 49 report was ordered to address SL’s capacity to conduct these proceedings and make decisions as to her residence, care and treatment and to enter into a tenancy agreement. A further directions hearing listed for 24 August 2016 had to be vacated because although the Official Solicitor had confirmed that his acceptance criteria were met he had indicated that he was not yet in a position to allocate the case or retain a solicitor.

By the time of the hearing on 23 November 2016 it had become apparent that given the complexity of the issue of capacity it would be necessary to obtain a report from an independent expert. Dr Hugh Series, Consultant Old Age Psychiatrist was instructed. Further consequential directions were given and this hearing was listed. On receipt of Dr Series’ report dated 27 January 2017 SL’s solicitors and NL put a number of questions to him which he answered in a document dated 13 February 2017.

Dr Series’ report does not definitively conclude that SL does not have capacity to conduct the proceedings. In his response to the questions posed on behalf of SL he leaves the matter for the court to decide. At the hearing on 24 February 2017 counsel for SL invited me to decide the matter as a preliminary issue. I have the position statements from the Applicant and counsel instructed by the Official Solicitor on behalf of SL. I was told that the Official Solicitor’s position on this issue was neutral but capacity to litigate is clearly central to the way in which these proceedings are conducted.

The form COP3 filed with application was completed by Dr Kenneth Lindsay, Specialty Psychiatrist responsible, as part of a multi-disciplinary team, for SL’s care whilst in hospital. He records that SL has had schizophrenia since at least 2012 and that she does not accept that she grossly neglected her own care before her admission to hospital. He assessed her as unable to understand or weigh up all the relevant information in relation to her own needs, both mental and physical or to weigh up the pros and cons of different types of accommodation as well as treatment and care in the community following hospital discharge.

The section 49 report is dated 12 August 2016 and was prepared by Dr R Patel, Consultant Psychiatrist. He reviewed SL on 11 August 2016 and was aware of the court proceedings at that point. He notes that she understands that she is receiving treatment for schizophrenia whilst believing that she does not have the illness. She told him that she took the medicine prescribed because she was, ‘… not allowed to refuse it’ [F8]. He was of the opinion that she lacked capacity to enter into a tenancy agreement and make decisions about her care because she does not understand the concerns which led to the decision that it was in her best interests to live in supported accommodation rather than return home. He also concluded that she lacked capacity to conduct these proceedings because, ‘… she does not understand the basis of such proceedings, as she is preoccupied by the fact that she would prefer to live at home… she was not able to explain what the aim was for the Court of Protection despite giving a brief explanation and the reasons behind why such proceedings would take place’ [F8]. He concludes that, ‘… although she retains capacity in making decisions around medical treatment, she does not have capacity to make decisions around her overall care and treatment which includes residential placement’ [F9].

The question of capacity is central to the jurisdiction of this court and I was satisfied that, having considered all the documents, there should be an assessment by an independent expert. Dr Hugh Series was instructed and his report is dated 27 January 2017. His opinion is that, on the balance of probability SL is suffering from paranoid schizophrenia which is a recognised mental disorder. At paragraph 7.1.5 he says that, ‘… schizophrenia is a condition which interferes with the process of thought, and it can undermine a person’s ability to reason and to weigh things up appropriately. It is common for a person to lack insight into his condition and not accept that there is anything wrong. I found that SL did not agree that she had schizophrenia; this is also reported many times in the papers in the bundle.’

Addressing the second stage of the test he concluded that:

In relation to those areas where he is of the opinion that SL lacks capacity, he commented that she simply did not accept the information about her previous condition namely that she had arrived at a state of self-neglect, poor nutrition and weight loss which probably contributed to the development of the ulcers. He considered that the refusal to accept the information was a result of her lack of insight into her illness, which is itself a result of the illness [8.1.2]. The natural result of her refusal to accept this information means that she cannot use or weigh it, although she can retain it because she has no memory problem as such.

In his report he sets out the test as stated in Masterman-Lister v. Brutton & Co [2002] EWHC 1889 and makes reference to Bailey v. Warren [2006] EWCA Civ 51. At para 8.5.3 he says, ‘… I do not think that SL lacks the intellectual ability to understand the matters at issue in litigation but her illness may have an effect on how she weighs them… the view that SL wishes to put forward is that she does not want the case to continue and she would prefer to stay where she is… I do not think her view is unreasonable or driven by delusion.’

He also refers to what Munby J, as he then was, said in Sheffield CC v. E [2004] EWHC 2808 (Fam) at 49 that cases where someone has litigation capacity whilst lacking subject-matter capacity are likely to be very rare. Dr Series addresses SL’s understanding of the proceedings and her reasons for objecting to their continuation. He says that SL, intellectually ‘… has a reasonable understanding of the issues involved, and she is able to retain the information, consider it, and use or weigh that information to reach a decision. She is able to communicate her decision’ [F57 para 8.5.18].

He is clearly aware that this puts him at odds with the position as set out in Sheffield CC v. E. He acknowledges that his doubt is not occasioned by any consideration that SL may have made an unwise decision but because her decision making, ‘… is coloured by the emotional blunting which results from her illness, and I accept that it could be argued that this blunting has undermined her ability to weigh the relevant information properly and thereby undermined her capacity’. He records that, in part, SL’s conclusion is driven by her natural carefulness with money, which I accept is reasonable and understandable and not a result of her illness. She is described as regretting that she has to contribute to the cost, that it has gone on so long and she does not like having to talk to people about the matters repeatedly. Dr Series’ view is that these are valid reasons for her to take into account and I accept that. He distinguishes between a denial and a delusion and says that her belief that she can look after herself without professional help is a denial which can be seen in other cases where people are unable or unwilling to accept the reality of their situation but that does not make their belief delusional.

Given the implications for SL of a decision that she did not lack litigation capacity but lacked capacity about the issues to be decided in these proceedings, with the exception of her property and affairs, there was a written request for clarification. Dr Series’ response is dated 13 February 2017.

Having considered his reports it appears that the reason for his difficulty is his struggle with the application of the legal test to the assessment he has made of SL. I was invited to consider whether I could decide this matter on the basis of the written evidence or needed to hear oral evidence. Dr Series felt that ultimately the question of whether SL lacks litigation capacity is a question for the court to decide. I am satisfied that there is sufficient material in his carefully considered reports to enable me to address the matter without hearing oral evidence.

The principles which apply for the purposes of the Mental Capacity Act 2005 (the MCA) are set out at section 1. Section 1(2) provides that ‘a person must be assumed to have capacity unless it is established that she lacks capacity’. The Mental Capacity Act Code of Practice at paragraph 4.30 highlights the importance of acknowledging the difference between unwise decisions, which a person has the right to make and, ‘decisions based on a lack of understanding of risks or inability to weigh up the information about a decision’. It goes on to say that, ‘Information about decisions the person has made based on a lack of understanding of risks or inability to weigh up the information can form part of a capacity assessment - particularly if someone repeatedly makes decisions that put them at risk or result in harm to them or someone else’. The burden of proof lies on the party asserting that a person does not have capacity, in this case the Applicant, and the MCA provides that ‘… any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities’ (section 2(4)).

A person may have capacity in respect of certain matters but not others. A person lacks capacity in relation to a matter if at the material time she is ‘unable to make a decision for herself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain’ (section 2(1) MCA). A person is unable to make a decision for herself if she is unable:

In CC v. KK and STCC [2012] EWHC 2136 (COP) Mr Justice Baker set out what is required of the court when assessing capacity at paragraph 24 as follows, ‘… when assessing the ability of P to (a) understand the information relevant to the decision (b) retain that information, and (c) use or weigh that information as part of the process of making the decision, the court must consider all the evidence, not merely the views of the independent expert. In many cases, perhaps most cases, the opinion of the expert will be confirmed by the other evidence, but inevitably there will be cases where the court reaches a different conclusion.’

The Position Statement filed on behalf of the Official Solicitor for SL refers to Bailey v. Warren [2006] EWCA Civ 51 which also makes it clear that the judge is best placed to consider how the nature of the particular proceedings impacts on the issue of capacity as well as the type of decisions which are likely to arise as part of the proceedings. Reference is made to the Civil Procedure Rules 1998 (CPR) and specifically to rule 21 which has now been amended to take account of the provisions of the MCA. Rule 21.2 CPR provides that a protected party must have a litigation friend to conduct proceedings on her behalf. A protected party is defined at rule 21.1 as, ‘a party or an intended party who lacks capacity to conduct the proceedings’. Rule 21.1(c) provides that the phrase ‘lacks capacity’ means lacks capacity within the MCA.

I have also been handed the case of Dunhill v. Burgin [2012] UKSC 18 which addressed the question of litigation capacity in relation to proceedings for damages for personal injury but is obviously of more general application in considering what is required. At paragraph 15 Baroness Hale said, ‘Read as a whole, therefore, rule 21 posits a person with a cause of action who must have the capacity to bring and conduct proceedings in respect of that cause of action. The proceedings themselves may take many twists and turns, they may develop and change as evidence is gathered and the arguments are refined’ and further at para 18, ‘I would hold, therefore, that the test of capacity to conduct proceedings for the purpose of CPR Part 21 is the capacity to conduct the claim or cause of action which the claimant in fact has.’

In Masterman-Lister Kennedy LJ said, ‘It is not difficult to envisage claimants in personal injury actions with capacity to deal with all matters and take all ‘lay client’ decisions related to their actions … but lacking capacity to decide (even with advice) how to administer a large award’.

I also take account of what Munby J, as he then was, said in Sheffield CC v. E. At paragraph 41 he refers with approval to the acceptance by the Official Solicitor that the tests for ‘litigation capacity’ and ‘subject matter capacity’ are not identical and that an adult who lacks the capacity to litigate may nevertheless have capacity with regard to the matters which are the subject matter of the litigation. He expressed the view that there is no particular difficulty with such cases. He acknowledged that someone may have the capacity to litigate in a case where the nature of the dispute and the issues are simple, whilst at the same time lacking the capacity to litigate in a case where either the nature of the dispute or the issues are more complex. He refers to the decision of Bracewell J in The NHS Trust v. Miss T [2004] EWHC 2195 (Fam). This is a decision to which Dr Series was referred and provided with quotations from in the letter of instruction but which he was unable to trace. I had the same problem. I could not find it either under that citation or by a more generalised search. However, I take into account the fact that it is a proposition which was adopted by the court. Munby J referred to the fact that in that case Miss T, ‘… did not have the capacity to litigate because she did not have the capacity to make medical treatment decisions’.

He went on to say at paragraph 50, ‘In that practical sense there is, I think, much force in the Official Solicitor’s point. Specifically, and referring to the present case, I agree with his observation that if Dr M was to report that, in her view, E lacks capacity on one or more of the matters which are the subject of this litigation, that would inevitably cast doubt on her earlier conclusion that E has litigation capacity.’

Dr Series is clear in his diagnosis and I accept that. I note that SL does not accept the diagnosis and that has been her position consistently as reported in the various assessments which Dr Series reviewed in preparing his report. That diagnosis is part of the two stage test which has to be satisfied in relation to an assessment of capacity. That finding is necessary before I can go on to consider the next part of the test.

Dr Series is also clear that SL lacks capacity in relation to the issues which are the subject matter of this application as already set out. That is consistent with other assessments which have been undertaken.

Dr Series’ opinion is that SL does not lack capacity to manage her property and affairs. She knows what her income and capital positions are and her financial commitments in terms of her accommodation. She is aware that she has had to pay the costs of these proceedings because money has been taken out of her account to fund them. That is a significant issue for her. I accept his opinion and my final order will include a declaration that SL does not lack capacity to manage her property and affairs.

His initial opinion about litigation capacity was heavily influenced by what he was told was said in The NHS Trust v. Miss T. Neither he nor I have had the benefit of reading the whole decision because we have both failed to trace the original report. Given that difficulty, it might be appropriate for those responsible for the letter of instruction to consider whether reference to it should be included in future instructions. Dr Series has referred to the fact that, unlike Miss T, SL is not deluded. She has a high level of intellectual ability to understand and reason. At paragraph 8.5.17 he says, ‘The fact that SL concluded that she would rather stay where she was than spend money, time and effort in challenging the decision is likely to be affected by the apathy and emotional blunting which is a result of her illness. If she had been a person who was subject to stronger emotions, she might have felt more strongly that she was not willing to accept a decision on accommodation that was contrary to her preference, and she might have been willing to fight more strongly and commit more of her money to the fight. However, partly as a result of her illness, she does not feel or express emotion strongly. This is the meaning of the expression ‘blunting of affect’ which is a recognised feature of schizophrenia’.

In his second report Dr Series records his opinion that SL understands her preferences clearly and has maintained her position consistently over the three conversations she has had with him, namely that she is prepared to continue to live where she is now and does not want the court case to continue both because of the cost and because she does not want to have to continue to think about it and discuss it.

A person may decide to accept a situation which is not ideal by choosing not to pursue litigation to resolve the matter on deciding that the financial and personal cost was too great. That is a pragmatic decision and not, of itself, an indication of a lack of capacity. In civil litigation a person may decide to settle because of the litigation risk, a wish not to incur further expenditure or because of the personal toll it is taking in terms of time and effort. Proceedings in the Court of Protection are different. They are inquisitorial and the court only has jurisdiction if a person lacks capacity to make one or more of the decisions in question for herself. Initially SL’s position was that she would not want to instruct a solicitor to act for her but she also said she did not want to attend court and speak for herself. When asked by Dr Series how her views would be communicated to the court in those circumstances, SL said that she would keep a solicitor. She wants the proceedings to end and accepts that that would, in effect, mean that she would not be free to choose where to live.

If SL does not lack litigation capacity it is difficult to see how a solicitor instructed on her behalf could consent to an order which included a declaration that she lacked subject matter capacity. The difficulty arises because SL does not accept that she has schizophrenia. On that basis, it must be her case that the diagnostic test is not met. When dealing with that specific issue in the telephone discussion with Dr Series SL said that she would not agree to an order which recorded that she had schizophrenia, that she accepted that she had neglected herself in the past, and that she agreed to continue to live where she is now. He explained that if she was not prepared to agree some compromise this might mean that the case would continue, further costs would be incurred and there might be costs consequences for her. Her eventual response was that she did not want to pay any more for the case.

In his first report Dr Series deals with litigation capacity at paragraph 8.5 [F51] and sets out the test to be applied as identified in his letter of instruction. He referred specifically to The NHS Trust v. Ms T as having a bearing on the present case. He says, ‘… I do not think that SL lacks the intellectual ability to understand the matters at issue in litigation, but her illness may have an effect on how she weighs them.’ [F53 at para 8.5.3] In effect, SL is willing to remain where she is if that is the only way of bringing the proceedings to an end. Dr Series goes on to say that whilst her view, ‘… may be influenced by her apathy and lack of motivation, I do not think that her view is unreasonable or driven by delusion’. [F53 at para 8.5.3]

He then addresses the matters which weigh in the balance on each side of the argument when arriving at an opinion. He contrasts the position of Ms T in The NHS Trust v. Ms T who is recorded as having been found to lack litigation capacity because her decisions were driven by mental disorder. He does not consider that SL’s failure to accept that her situation is as described by the Applicant necessarily indicates a lack of capacity resulting from her mental disorder. He accepts that SL’s belief that she does not have schizophrenia, that the medication is not helping her, that she does not need the kind of support which the council considers she does coupled with her desire to return home but is prepared to stay where she is if this will bring the proceedings to an end may suggest a defect in her ability to use or weight the relevant information. He makes it clear that his doubt is not caused by thinking that SL has reached an unwise decision but because her decision-making, ‘… is coloured by the emotional blunting which results from her illness, and I accept that it could be argued that this blunting has undermined her ability to weigh the relevant information properly and thereby undermined her capacity’. [F57 paragraph 8.5.20]

In his response to the questions raised he set out the detail of his further discussion with SL. He addressed the question of litigation capacity again at paragraph 2.3 [F75] and says that his opinion on SL’s litigation capacity, ‘… depends on the level of detail which the court considers she would be expected to understand in making the kinds of decisions she would need to make in the course of litigation. If it is sufficient for her to understand the matter in broad terms, then I think that she does have litigation capacity. However, if, as suggested by Irwin Mitchell, she would need to be able to have a more detailed understanding of the various potential outcomes and their consequences, then I think that she lacks litigation capacity’.

Having considered Dr Series’ reports I am reminded that I must be careful not to set the bar too high in considering whether SL lacks capacity to conduct these proceedings. A decision about capacity is significant. A finding that a person lacks capacity in relation to a specific matter means that she is deprived of the right to make decisions for herself. That is something which adults in the general population take for granted. It is a significant interference in a person’s right to self-determination.

SL had indicated that she does not wish to attend court and initially said that she would not instruct a solicitor. During her discussion with Dr Series she understood that, if she did not wish to attend court, she would need to instruct a solicitor to do so on her behalf. If SL does not lack litigation capacity then the instructions she would give her solicitor, on the basis of what she has said to Dr Series, are clear. She does not accept that she has schizophrenia, she does not accept that she has neglected herself in the past. She is willing to agree that she will continue to live where she is now to bring the proceedings to an end but she does not accept that the court should make any declaration about her residence and care. Dr Series is satisfied that she lacks capacity to make decisions about residence and care for herself. In making my decision it is necessary to consider what is required for litigation capacity in this case. In their questions to Dr Series following his initial report, the solicitors instructed to represent SL highlighted the nature of the decisions which SL might need to make during the proceedings. I accept that those are a reasonable description of situations which could arise in the course of this litigation.

I am satisfied that SL can understand the information relevant to the proceedings. There is no dispute that she is able to communicate her decision.I have noted Dr Series’ opinion at paragraph 2.3.2 of his second report [F75] that, ‘… if SL is required to make decisions and give instructions at the level of detail suggested by Irwin Mitchell, then I do not think that she is able to hold the relevant information in her mind for long enough, and nor is she able to use it or weigh it to make a decision. This is a result of mental disorder because her disorder impairs her concentration and reduces her ability to reason.’ As I have said, I accept that the situations outlined by Irwin Mitchell in their request for clarification do not overstate the nature of the decisions which might be required in the course of litigation. Having considered the evidence and Dr Series’ replies to the questions put by Irwin Mitchell, I am satisfied that SL understands in broad terms what the subject-matter of the litigation is but I am not satisfied that she is able to use and weigh the relevant information to make decisions and give instructions in relation to matters which are integral to the process of this litigation.

On that basis, I will make a finding that SL lacks capacity to conduct these proceedings.