London Borough of Tower Hamlets v A & Anor

whether A presently has capacity to decide for herself where she lives (it being agreed that she lacks capacity to decide how she is cared for); and

if she lacks capacity to decide where she lives, is a trial period of returning to live at home with a care package in her best interests?

Filed by the Applicant:

Filed on behalf of A

Filed by KF

Jointly instructed expert

I should address A by her first name;

The purpose of the call was to facilitate A’s participation in proceedings by expressing her wishes and feeling, as distinct from A giving evidence or the court making a direct assessment of capacity;

The conversation would be recorded by the courtroom recording system, and A’s solicitor would take notes which would be typed up and circulated to all parties within 3 working days;

I would summarise to all parties what A had said before the hearing went any further.

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 – section 1(3); and

A person is not to be treated as unable to make a decision merely because he makes an unwise decision – section 1(4).

It does not matter whether the impairment or disturbance is permanent or temporary.

A lack of capacity cannot be established merely by reference to –

…. any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.

…a person is unable to make a decision for himself if he is unable –

A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids, or any other means).

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.

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.

the “diagnostic test” - is there an impairment or disturbance in the functioning of the mind or brain?

the “functional test” – is the person unable to understand, retain or use/weigh relevant information, or to communicate their decision?

the “causal nexus” - is the inability because of the identified impairment or disturbance?

what the two options are, including information about what they are, what sort of property they are and what sort of facilities they have;

in broad terms, what sort of area the properties are in (and any specific known risks beyond the usual risks faced by people living in an area if any such specific risks exist);

the difference between living somewhere and visiting it;

what activities P would be able to do if he lived in each place;

whether and how he would be able to see his family and friends if he lived in each place;

in relation to the proposed placement, that he would need to pay money to live there, which would be dealt with by his appointee, that he would need to pay bills, which would be dealt with by his appointee, and that there is an agreement that he has to comply with the relevant lists of "do"s and "don't"s, otherwise he will not be able to remain living at the placement;

who he would be living with at each placement;

what sort of care he would receive in each placement in broad terms, in other words, that he would receive similar support in the proposed placement to the support he currently receives, and any differences if he were to live at home; and

the risk that his father might not want to see him if P chooses to live in the new placement."

The “important questions” of the appeal were “as to the factors relevant to making the determinations of capacity” and “as to the approach to assessment of capacity when the absence of capacity to make a particular decision would conflict with a conclusion that there is capacity to make some other decision.” [para 4]

The first instance judge, Cobb J, had set out the list of information relevant to a decision on residence which had been formulated by Theis J in LBX v. K, L, M [2013] EWHC 3230 (Fam).

The Court of Appeal observed [para 62] that “we see no principled problem with the list provided it is treated and applied as no more than guidance to be expanded or contracted or otherwise adapted to the facts of the particular case.”

Cobb J had concluded that B did have capacity to make decisions in relation to residence but did not have capacity to make decisions about her care.

The Court of Appeal identified [para 35], broad principles in the following terms:

“Cases, like the present, which concern whether or not a person has the mental capacity to make the decision which the person would like to make involve two broad principles of social policy which, depending on the facts, may not always be easy to reconcile. On the one hand, there is the recognition of every individual to dignity and self-determination and, on the other hand, there is a need to protect individuals and safeguard their interests where their individual qualities or situation place them in a particular vulnerable situation….”

The Court of Appeal restated [para 36] that the determination of capacity is to be

“by reference to a particular decision.”

The appellant’s criticism of Cobb J’s decision in respect of capacity to decide residence was that it failed to take account of relevant information relating to the consequences of the decision, produced a situation in which there was irreconcilable conflict with his decisions in respect of other domains of capacity, and made the provision of care to B practically impossible. These criticisms followed from an approach which analysed capacity in respect of different decisions as self-contained

“silos” without regard to the overlap between them. [para 63]

The Court of Appeal agreed with that criticism [para 64]. It was identified that the first instance decision as to residence had declined to take into account the implications (and therefore the reasonable consequences) of living with a particular person (Mr C), and there was conflict between:

the conclusion that B did understand in broad terms the care she would receive if she lived with Mr C (and by implication could use or weigh that information as part of a decision on residence), and the conclusion that she did not have capacity to make decisions about care [paras 64 and 67]; and

London Borough of Tower Hamlets v. NB [2019] EWCOP 27, where the VicePresident emphasised the need to focus upon the individual’s circumstances when applying tests formulated in case law;

PCT v. P, AH and The Local Authority [2009] COPLR Con Vol 956, and Re SB [2013] EWHC 1417 (COP) as authority for the proposition that, even though a person may be unable to use or weigh some information relevant to the decision in question, they may nonetheless be able to use or weigh other elements sufficiently to be able to make a capacitous decision;

the decision of MacDonald J in Kings College NHS Foundation Trust v. C and V [2015] EWCOP 80, and in particular paragraph 38, where he said in respect of using and weighing relevant information:

“It is important to note that s3(1)(c) is engaged where a person is unable to use and weigh the relevant information as part of the process of making the decision. What is required is that the person is able to employ the relevant information in the decision making process and determine what weight to give it relative to other information required to make the decision. Where a court is satisfied that a person is able to use and weigh the relevant information, the weight to be attached to that information in the decision making process is a matter for the decision maker. Thus, where a person is able to use and weigh the relevant information but chooses to give that information no weight when reaching the decision in question, the element of the functional test comprised by s3(1)(c) will not be satisfied. Within this context, a person cannot be considered to be unable to use or weigh information simply on the basis that he or she has applied his or her own values or outlook to that information in making the decision in question and chosen to attach no weight to that information in the decision-making process.”

She considered A’s capacity to decide “where [she] will reside to receive appropriate ongoing care and support to maintain her health and well-being.” She identified two diagnoses, namely “F106 amnesiac syndrome alcohol drug use (Korsakoff)” and “F011 Multi infarct dementia.” She concluded that A is able to understand information regarding where she will live “on a basic level” but is not able to understand “vital information regarding her care needs which affect this decision.” She considered that A is “not able to retain information longer than a few minutes” and therefore could not use or weigh such information. She considered that A lacked capacity to make the decision identified.

She started working with A in December 2018, visiting at least monthly but at times weekly [G3];

A “struggled to accept that she needed support” and Ms. Dalton believed that to be “because [she] was not able to remember key facts about her needs, such as diagnosis, symptoms and risk” [G3];

“Each time I have met with [A] I would need to explain who I was, why I had come and why I was involved in her care [G3]

“At times, [A] was able to partly orientate with her diary but this could also often lead to further confusion” [G3]

A is “unable to repeat back concerns expressed plainly, within a very short space of time, approximately 30 seconds - 1 minute” [G3]

reviewed A’s medical records. He refers [I71] to a number of instances from June 2018 where A sustained injuries without remembering how, and to reports of concern about A made by her friends to her GP [I72]. He sets out [I79-80] the previous history of lack of engagement with District Nurses, the Alcohol Liaison Service outpatients clinic, and carers.

describes [I85] his meeting with A on 4^th October, and her recollection that he had had to change the date of the appointment. He describes [I86] A’s note-taking during the meeting and subsequent use of her notes to remind herself of his profession.

notes [I86] A’s positive account of KF: “although we have had our differences, she is deeply honest and trustworthy.”

records his explanation [I87] to A that others had raised three concerns about her ability to manage independently: “her poor memory, her excessive alcohol use and her history of falling.”

records [I87] A’s view about remaining in residential care: “I wouldn’t be happy, I can’t think of a more desperate situation. I would be one of a herd of poor sods whose lives had been taken from them and can’t decide what to do and where to go. Please don’t do that to me.”

sets out an account of discussions with the manager of C Care Home [I88], KF [I88] and A’s social workers [I89-90].

opines [I90] that A has dementia, likely of a multi-infarct type, and therefore “unlikely to significantly improve with stopping the alcohol.” However, he notes that “if [A] drinks to excess she will be vulnerable to accidents and confusion because of her underlying dementia.”

additionally gives two further diagnoses [I91]:

“It is my opinion that the periods when [A] has been confused relate not only to dementia but also to an additional diagnosis of delirium” due to a leg infection.

concludes that “[A’s] dementia…meets the Mental Capacity Act requirement for an impairment of, or disturbance in, the functioning [of] the person’s brain or mind. [A]’s dementia does affect her decision-making ability.” [I92] (It is important to be clear that Dr. Mynors-Wallis does not make any reference to the other two diagnoses in reaching his conclusion as to causative link between mental impairment and functional incapacity.)

considers each domain of capacity separately and concludes that A

addresses particularly the question of deciding where A lives, and concludes that A “is able to retain the information for at least a time with regards to the risks of returning home and the conditions required for her to live at home safely. She was able to repeat back to me what the possible conditions were. She is also able to write down information and refer to it later. It is my opinion that she would be able to write down the necessary conditions and have a system whereby she is reminded of these when living in her home…. [She] is able to understand that if she doesn’t comply with the requirements to keep her safe, there is a risk that she will not return home…It is my opinion that she would rather risk falling at home than to remain in a nursing home.”

acknowledges [I96] that his opinion differs from the Local Authority’s, and suggests that this “may reflect the fact that [A] was physically well when I saw her. She was abstinent from alcohol and well nourished – reflecting her care in the nursing home. She also had had the experience of being in a nursing home rather than in her own home.”

identifies [I97] several factors which might assist A and mitigate the risks of a return home: “the key intervention ..is that she abstains from alcohol” but she also “needs to be assisted with memory aids” and “would benefit from the provision of some form of structured social activity.”

acknowledges that A “is unlikely to fully comply with any conditions set regarding a safe return home, reflecting her past history, her poor memory and the background of alcohol dependence.” However, “although the probability of compliance does not reach over 50%, there is a possibility that [A] will comply with conditions required for her to remain at home safely, reflecting the fact that she does retain some memory and is so clear in her wish that she would do anything not to remain in a nursing home.”

proposes that “a reassessment of [A]’s capacity once she has been in her own home for a period (eg one or two weeks) might be of assistance to the Court…”

“an example of a major decision about care would be a decision as to how much social care was required at home to keep [A] safe” [I117]

for a trial at home to be considered the requirements would be [I119] that A agrees, that she remains abstinent from alcohol for the duration of the trial, that she lets in carers “with a frequency of say twice a day” and that she co-operates with an ‘activities of daily living’ assessment at the care home or otherwise accepts a carer preparing food for her at least once a day;

failure to comply with such conditions “would lead to a re-assessment of her capacity to make a decision about where she lives.”

the present situation can be distinguished from past attempts to assist A with care at home because of three factors [I122] – her “understanding that the alternative to compliance with support measures may mean that she spends her remaining days in a care home,” her present health and abstinence from alcohol, and the possibility of best interests decisions being made on her behalf in respect of matters pertaining to finances and care.

He explained that A’s dementia, being multi-factorial (and as distinguished from alcohol-induced dementia), will persist and worsen. She has some impairment of her ability to make new memories, but she retains at present the ability to use techniques such as note-taking to help reduce the impact of that.

He agreed that A tends to ‘normalise’ alcohol consumption as a feature of her profession and that, if she returned to drinking alcohol, an attempt to live at home would fail but he identified a change from previous experience in that A is aware of that explicit link in the sustainability of any return to live at home. He acknowledged the “significant chance” that A would drink alcohol again if she returned to live at home. He considered that the agreed care package would mitigate the risks of this through the frequent visits of carers. He was clear that the response to any resumed alcohol consumption would need to be proportionate.

When questioned by Ms. Kohn, Dr Mynors-Wallis confirmed his view that A did understand when he met her in October “that her ability to remain at home depended on factors relating to her care.” She understood “the stark choice” between residential care and living at home with the agreed care package. He acknowledged that A’s test attainments have worsened over time “but she is still at a higher level than many people going into care…. The level of her dementia is not such that, on its own, I would have concern about her going home.” He pointed out that her weight is now normal, and under the care package carers would let themselves in. He considered that A “understands the reality of people being in her flat, and she’s able to retain it long enough to weigh, and she’s certainly able to communicate her view on it.” He recognised that she may find the presence of carers distressing at first, and for that reason consistency of provision would be important, but he considered that she would become accustomed to it. It was his view that, if an attempt to live at home failed, A would be disappointed but she would also be “assured that everything had been done to accommodate her as best as possible.”

RJ gives an account of A’s presentation after the first hearing:

“Between Court and the hospital she lost her phone, had little memory of the proceedings, who was there, what was said and what it was about. She knew we were going to [C Care Home] next day. The journey went smoothly, despite her anxiety about her phone and a card in her wallet that she could not locate for 20 minutes. We arrived at [C Care Home] around 6pm, she had forgotten why we were there and said she thought we were going on holiday and wouldn’t have come if she had known. She couldn’t remember the court recommendation that she stay [at C Care Home] until Friday. I left her in some distress, with a carer. I returned the next day at 11am to find her playing scrabble with another carer – she was happy – a transformation from the day before.” [G25]

MG gives a very vivid account of his long acquaintance with A whom he described in oral evidence as “extraordinary when I met her,” even then “incapable of rational decisions, crazy in lots of ways.” He observed that now A’s “emotional selfsufficiency gives the impression of someone far more intelligent and in control of life than is actually the case.” [G27] His account of difficulties A experienced since March 2017 is movingly told but, he says, he never realised that there was such a significant issue with alcohol. He too concludes that, if A returns home, he “would resign all further responsibility for being involved in helping to look after her… To send her home under the illusion that she is an independent intelligence capable of making decisions that are in her own best interests, even with multiple carers visiting and preparing her meals, would only be to hasten her decline still further.” [G43]

LK is the friend who lives closest to C Care Home. She says [G45] “As you will know, [A] is a very clever lady. Since she has been in hospital and off alcohol for approximately 4 months, she has regained some cognisance which is encouraging. She can present on the moment as reasonably normal however she is far from being able to look after herself. If you question her you will find that she has almost no short term memory…”

KF herself contends that A’s capacity to decide where to live, to make decisions about care at home and to manage her property and finances are “inextricably linked” [G89]. She says that A “will not understand or accept that her desired ‘return’ state will not be possible.” She points out that A’s “anger and anxiety” in respect of previous care packages were significant, and the current proposals “would be significantly more onerous and restrictive.” [G90] She does not think that A has capacity to make the decision about where she lives [G126]

“her memory is getting better. She’s not as forgetful as when she first came.” [G116]

the reason for that was “Some of the thiamine, good food, taking regular medication, regular food at regular times, routine.” [G117]

“when I saw her in the summer, she didn’t know where she was…She has come a heck of a long way.” [G117]

“I don’t think we are going to get much further in this environment; we are only maintaining. [G118]

There needs to be further exploration as to the minimum care package which would be required to manage the risks of A living at home. A has considerable means. If the Local Authority is not prepared to fund any greater care package than that which is proposed, her own funds can be used to commission a more significant care package.

There is no dispute that A meets the diagnostic test. She suffers from dementia and alcohol dependence.

There is no dispute that A lacks capacity to conduct the proceedings, make significant care and treatment decisions, or manage her property and affairs;

As to capacity to decide whether she should continue to live at C Care Home or return to her flat on a trial basis, the evidence of Dr. Mynors-Wallis is accepted;

There is no inconsistency in Dr Mynor-Wallis’ conclusions as to residence and care. He has not separated the two into separate silos. Rather he has made an individualised assessment that best interests decision will be made in respect of an appropriate care package and, in those circumstances, A is able to understand, retain, use and weigh the relevant information in coming to a decision on residence.

A’s lack of insight into her care needs presents significant challenges to the sustainability of a return home, even on a trial basis.

If residence is determined as a best interests decision, a decision not to attempt a trial return home means inexorably that A will remain in residential care for the rest of her life, and the Court should only reach that conclusion where it is plain and obvious that there is no alternative. A trial return home, with strict conditions, whilst A’s place at C Care Home remains open, is a viable alternative.

In her position statement, Ms. Kohn states that “the view of LBTH is that [A] requires 24 hour specialist care such as that currently provided to her at [C Care

The care and support plan dated 17^th February 2020 states:

Ms. Kohn in oral submissions summarised the “crux” of the Local Authority’s position as being that considerations of residence and care cannot be separated in a determination of A’s capacity to decide where she lives.

The conclusions of Dr. Mynors-Wallis are not accepted because “an understanding of the kind of care required is fundamental to any decision on residence”, relying on B v. A Local Authority [2019] EWCA Civ 913 paragraphs 63-64.

A cannot recall and does not accept her historical difficulties, and therefore cannot use and weigh that information in making decisions about the care she requires or, as a consequence, the place in which she needs to live in order to receive such care. She cannot understand the reality of living at home with a care package – “it’s words with no substance.”

A return home, even on a trial basis, would not be in A’s best interests. “It’s just bricks and mortar – not a loving family embrace. There is a high likelihood of failure.”

- as is made clear when she goes on to spell out that “[A] cannot recall and therefore neither accepts nor acknowledges her history and past difficulties and therefore cannot use and weigh this information in making decisions regarding the care she requires nor, as a consequence, the place in which she needs to live in order to receive such care.” [emphasis added] In my judgment, it is not necessary to make a capacitous decision about care in order to make a capacitous decision about residence. Rather, as Theis J identified, what is required for A to make a capacitous decision about where she lives is a broad understanding of the sort of care which would be provided in each of the two places of residence potentially available to her.

what the two options are;

in broad terms, the care which would be provided to her in each place (including that, in her own flat, carers would visit her several times each day);

that the option of living in her flat would be initially on a trial basis for up to 4 weeks;

that the trial of living in her flat would be considered successful if A engages with the carers, takes her medication, maintains appropriate nutrition and abstains from alcohol;

if the trial of living in her flat is not considered successful, it would end and she would return to C Care Home.

Ms. Dalton is the professional who has had the longest acquaintance with A. However, her initial assessment of A’s capacity was completed very shortly after the period of her hospitalisation began, before she had received a sustained period of care and supported nutrition, before she had had a sustained period of abstinence from alcohol, and before she had experience of residential care.

Mr. Lee-Drury and Dr. Akoo each assessed A around the time when she was discharged from hospital. Since then, A has benefitted from a further period of sustained care, and additionally experienced life in a residential placement. To a significant degree, in my judgment, their assessments are now ‘out of date.’

KF, RJ, MG and LK have maintained friendships with A over a very long period. They have demonstrated an impressive degree of commitment to her wellbeing. A is very fortunate to have such friends. However, the experience of supporting A has taken its toll on them. For A, and for themselves, they are understandably reluctant to risk losing any of the improvements in A’s health and safety which they have seen whilst she has been receiving residential care. All of that is understandable and, in my judgment, well-intentioned but I am concerned that such risk-aversion leads them to overlook the distinction between being unable to make a decision and making a decision which they consider to be unwise. I acknowledge their collective view that A will not be able to meet the requirements of a successful trial but I am concerned that such view does not take sufficient account of A’s improved health, her experience of residential care or the mitigating effects of the care package which will be provided.

Taking all the circumstances of this matter in consideration, I prefer the evidence of Dr. Mynors-Wallis. He is an independent assessor, jointly instructed by all parties. He has many years of professional experience relevant to making capacity assessments. He has fully considered A’s medical records, has seen A in person, and has considered the views of relevant others. He conducted his formal assessment at a time when A had benefitted from a sustained period of care and abstinence from alcohol, and gained experience of residential care.

For A as much as anyone, home is more than “just bricks and mortar.”

Court in respect of A’s care is for it to be provided as part of the residential placement at C Care Home. It is imperative that the package of care which makes trial return to A’s flat an option is arranged as quickly as possible. Until it is, on an interim basis, the determination that A lacks capacity to determine the care that she should receive necessarily means that she lacks capacity within the meaning of paragraph 15 of Schedule A1.