Lancashire & South Cumbria NHS Foundation Trust & Anor. v AH

This case concerns a lady of 46 who I will call Anna (or AH). That is not her real name, but I wish to protect her privacy.

Anna lives in a city in the North West of England. She suffers from type 1 diabetes. Provided she is treated properly and consistently with insulin, Anna is able to live happily and healthily. However, if she is not, she is at significant risk of serious harm and even death.

Prior to the events I describe below, Anna lived independently in her own flat in the community. Matters came to a head at the very end of last year when she was admitted to a local general hospital suffering from acute confusion and high blood glucose. She was subsequently admitted to critical care with developing cardiorespiratory failure secondary to diabetic ketoacidosis. At that time Anna had been without insulin being prescribed for several months.

At the end of her prolonged stay in the general hospital, when she was medically fit for discharge came the issues that gave rise to these proceedings.

In very simple terms the issues are these. Anna suffers from mild learning disability. There is a suggestion that she may also have a personality disorder. In the past, she has been very difficult to engage and manage in her diabetes care. Those responsible for that care are clear that her continued health- indeed, her survival- depends on their ability to ensure she receives regular administration of insulin. However, experience has shown that this is near impossible in the community.

Therefore, the Applicants initially applied to this Court for an order that Anna be admitted to a care home placement for assessment. I granted that application. It was hoped she would only need to be in the care home for a few weeks, following which a care plan in her own home could be formulated following the assessment process. That has not happened and, at the moment the Applicant considers it necessary for AH to continue in a care setting possibly in the long term.

That was earlier this year. There have been considerable difficulties with capacity evidence in this case- the details of which I will address later on. However, in order to obtain a definitive capacity assessment the Court directed a single expert report from Dr Camden-Smith. There was some delay in this, for reasons I will not explain here. The matter was listed for a one day hearing today to deal with the issue of capacity alone.

In the event, the parties agreed that there was no need to challenge the expert evidence, and neither was it necessary to hear from any other witnesses. The one exception to that was that Anna herself did want to speak to me- as she had done in April.

This judgment is concerned only with the issue of capacity.

Following brief submissions, I gave a very brief oral decision. That was that I was satisfied that Anna lacks the capacity to make the decisions with which the Court is concerned. I promised to give fuller reasons in writing. This is my judgment.

Anna’s history was contained in the records and in a Chronology taken from her GP and community records.

It seems that she was subject of care proceedings as a child which focused on her relationship with her father and the fact that she appeared to have been neglected, with no attention being given to personal care needs. She attended a special school at that time. There seem to have been concerns that Anna’s father’s behaviour was “strange”, insisting that she should not be examined in his absence. At the same time, there was concern that he was unable to care for her or meet her needs.

There was involvement of a diabetes nurse and the diabetic clinic. She appears to have been the patient of both diabetes clinics and the community mental health team in Blackpool in the early 2000s. As early as 2005 there is an entry: “Refused insulin as 2 nurses present”. This hints at the issues that were to come with her diabetes care. She was also recorded as “not taking insulin and eating chocolate deliberately”.

Anna has had involvement with and input from the community mental health team (CMHT) where she lives since 2018. There have been ongoing concerns over her physical health from diabetes nurses. She has shown a reluctance to register with GPs despite being offered assistance in doing so by the CMHT.

In December 2021, matters reached a crisis point when Anna was admitted to hospital suffering from the serious and life-threatening consequences of her failure to take adequate insulin. The problems facing those responsible for Anna’s care are most clearly highlighted in the Discharge Planning Meeting of 26 January 2022:

Then came a contribution from the Community Learning Disability Nurse which in my view identifies a major issue in this case:

In answer to that question, the following is recorded:

However, there was obvious concern that Anna was dictating to the treating team certain requirements that may, in fact, be a way of frustrating the treatment entirely. The Locality Lead for Learning Disabilities:

Later, the service manager of the agency providing care:

It has to be said, that at that meeting it was abundantly clear that the issue of capacity in this case was complex. This was particularly so because a proper assessment of Anna’s needs and how they could be met in the community was required and that may involve a further stay in some form of facility or residential placement- raising issues not only of care but also residence and because of Anna’s clear reluctance to engage, her deprivation of liberty.

Indeed, by the MDT meeting of 2 February 2022 a consultant nurse from the Trust:

This was a very pertinent concern. According to the figures given in the MDT that in October 2020 out of 62 planned visits, District Nurses accessed Anna’s property only 8 times. On 13 occasions they were unable to contact her. On 41 occasions she declined access to them. In November 2020, she refused her insulin on 37 occasions.

That was, of course, the period leading up to the crisis admission at the end of December and the very real risk to Anna’s life.

Dr Camden-Smith is a consultant Psychiatrist with a specialism in Neurodevelopmental Disability Psychiatry. She was jointly instructed to carry out a capacity report on the following decision-making areas:

It is interesting that Dr Camden-Smith immediately focused upon the records prepared by Ms Hutchinson, then a community learning disability nurse, later a consultant LD nurse (and Mental Health Act approved clinician). In July 2007, she quoted a psychiatrist who had commented on Anna:

Furthermore, at that time Ms Hutchinson was very concerned about Anna’s behaviour around members of staff. There had been harassment of staff, with Anna developing an obsession with one and following another to their home. Hutchinson said:

Later, in July 2015, Ms Hutchinson recorded:

Dr Camden-Smith recognised that capacity in this case was difficult and recorded that there had been differing outcomes to capacity assessments within the currency of these proceedings.

One aspect of Anna’s history the expert focuses on is her social and adaptive functioning. It seems to me this is the central issue in Anna’s case. As Dr Camden-Smith puts it:

In the section of Dr Camden-Smith’s report entitled Mental State Examination the expert goes into some detail of her interview with AH. I note that the interview was conducted over a video link due to the constraints of time. Although the interaction between the expert and AH were probably not as complete as they would have been had they met face to face, I am satisfied that Dr Camden-Smith has given a great deal of consideration to what AH has said and that is reflected in the comprehensive report. In particular, although AH is noted to be very suspicious, Dr Camden-Smith does not consider her to be paranoid to a clinically significant degree.

The expert also considers AH’s diet which is said to include foods that the SALT has advised her not to eat due to a choking risk. This is so she can prove she is not at risk of choking.

Then there is the 2012 care plan that AH developed for herself. This was an extremely detailed care plan about the care and support she wants and how she wants it delivered. To quote the report:

AH repeatedly refers to the 2012 care plan and to how it is not being followed.

Dr Camden-Smith’s opinion on diagnosis is extremely important in order to understand the issue of capacity. AH has a confirmed diagnosis of mild learning disability, with which Dr Camden-Smith agrees. However, she is also clearly of the view that there are traits of personality disorder that ought to be explored, with the expert concluding AH almost certainly has a disorder of at least moderate severity:

In addition, Dr Camden-Smith concludes there is evidence that AH is autistic. Again, this is an area those treating her shall explore.

In conclusion on the question of diagnosis, Dr Camden-Smith says this:

I shall summarise Dr Camden-Smith’s conclusions on capacity before considering the legal tests.

In relation to AH’s capacity to make decisions as to residence, the crux of the issue is her:

The same is true of her ability to make decisions concerning care and support. Her attitude towards her care and support needs (and how they can be met) follow a similar path of not being able to understand her obsessional attachment to people, as well as the maladaptive way she seeks to obtain certain types of care and support. In particular:

It is this inability to recognise, let alone to understand that she has mental health needs due to a combination of learning disability and personality disorder (and perhaps autism) that makes it impossible for her to understand that her own chosen care plan is not feasible. Further, she is unable “to understand the consequences of her behaviour on the care that she receives and continues to behave in maladaptive ways despite repeated evidence of the harm that this causes to her”.

For these reasons, Dr Camden-Smith also considers AH to lack the capacity to make decisions about information sharing, restrictions that amount to a deprivation of liberty and to litigate in these proceedings.

Dr Camden-Smith does conclude that AH is not deprived of her liberty at the care home because she is not “subject to continuous supervision and control”. None of the legal representatives in this case consider that to be correct, and neither do I.

Since those representing AH did not challenge Dr Camden-Smith or her conclusions I need only deal with the law briefly. It is important, however, that I do comment on the legal framework for reasons that will become apparent.

The law is contained in the early sections of the Mental Capacity Act 2005 (MCA). There is a presumption of capacity which may only be rebutted by evidence which is accepted by the Court on the balance of probability.

Capacity is issue and time specific. One can lack capacity in a particular area at one stage in time but possess it at another. Equally, one may have capacity in one area but lack it in another.

Then there is the diagnostic and functional tests of capacity in ss 2 and 3 MCA. There needs to be an inability to make decisions as per s 3(1), and that must be caused by the impairment of or disturbance to the mind of P.

In this case, it seems to me that the central issue giving rise to what Dr Camden-Smith identifies as AH’s incapacity is complex- with elements of personality disorder and perhaps Autism exacerbating the effects of AH’s learning disability on her ability to make decisions about her care and treatment.

As a result of the failure of the attempts made to provide care and treatment in the community due to AH’s “maladaptive strategies” that she does not (and cannot) understand the need arose for her to be placed in the care home for assessment and care. In assessing AH’s capacity, the primary decision is whether AH is able to decide to reside at the care home. However, that decision involves an ability to understand why she is there. For the reasons given by Dr Camden-Smith, AH is unable to understand that, and that is because of her learning disability along with traits of personality disorder and autism.

It seems to me this is a clear example of the expert moving away from treating capacity decisions in “silos”, but rather considering how making decisions about different subjects interact with each other.

It seems to me that Dr Camden-Smith has considered the correct relevant information in her assessment, including crucially the reasonably foreseeable consequences of making the decision one way or another- as has most recently been made clear in A Local Authority v JB [2021] UKSC 52.

The decision concerning residence and care involves whether AH would be able to receive her insulin in a consistent way if she were to live at home? There are very compelling reasons to believe that she would not- mainly derived from past experiences, but also from her present approach to her care and treatment, which is based on a wholly unrealistic assessment of her needs and how they can be met, and on the fact that she has mental health problems. Put another way, she is incapable of understanding the issue because of her learning disability and other features identified by the expert.

I am persuaded by Dr Camden-Smith’s report. I declare that AH lacks the capacity to make decisions about residence, care, sharing information concerning her physical and mental health and care, and to conduct these proceedings.

During these proceedings an issue arose which troubled me. It concerns the interaction between the assessors for Schedule A1 of the MCA (the so-called DOLS) and expert evidence in this Court.

A psychiatrist, Dr Oraegbunam carried out an assessment of AH’s capacity in March 2022 for the DOLS process. He concluded that she did not lack the capacity to make the relevant decisions. However, I had before me an assessment from a clinical psychologist, Ms Guzman. She approached the assessment of capacity in what I consider to have been a more appropriate way, and certainly closer to that adopted eventually by Dr Camden-Smith. She focused on AH’s long standing and inflexible thinking style and her inability to accept that there is anything about her that needs to change (viz. mental health).

I do not think it is necessary to deal with the merits of the assessments at that time. I made orders in relation to AH’s capacity and best interests on an interim basis, and I did so on Ms Guzman’s compelling evidence and because of the potentially grave consequences for AH if I did not and her insulin regime once again stalled.

However, the practical effect of my decision was that AH was a detained resident in a care home, but subject not to the safeguards under the DOLS, but that of the Court. It also meant that I was not able to reconfigure these proceedings under s.21A of the MCA, thereby entitling AH to non-means tested legal aid. Fortunately, due in part to the Trust’s willingness to help with funding and AH falling below the threshold whereby she would have to fund her own legal team, this did not have any adverse effects on AH.

It seems clear to me that where a court appointed expert reports on a case in which capacity is in dispute, and that expert concludes that capacity to make decisions as to residence and care are absent, that should be sufficient for the mental capacity requirement of Schedule A1 to be met without more.

However, after discussing the matter with experienced counsel, instructed by experienced solicitors in this case, there appears to be no way this Court can enforce such a conclusion.

Clearly, where any of the assessments are challenged by way of s.21A, the Court has the express power to vary or terminate the standard or urgent authorisation. However, that power is predicated on there being such an authorisation in place. What the Court cannot do is hear a challenge to DOLS capacity assessment which concludes that P has capacity, because then there will be no standard or urgent authorisation to challenge/vary/ terminate.

There was a discussion as to what a supervisory body (in this case Lancashire County Council) can do, if anything, where the assessor concludes that P has capacity. The assessors are, of course, independent of the supervisory body. That is necessary in order to make the process compliant with Article 5 of the ECHR. It would be unfortunate as well as very costly, if the supervisory body had to judicially review one of their assessors because that assessor reached a view that conflicted with a decision of the Court (see analogously, albeit within the context of the Mental Health Act where a Responsible Clinician challenged his own Hospital Managers in respect of the discharge of a patient: South Staffordshire and Shropshire Healthcare NHS Foundation Trust & Whitworth v The Hospital Managers of St Georges Hospital [2016] EWHC 1196 (Admin).)

It would be sensible, it seems to me, if the Local Authority as supervisory body agrees that P lacks capacity, that the author of the report ought to carry out the assessment for the purposes of the DOLS, if that is possible. Alternatively, I would expect any mental health or mental capacity assessor to have access to the report and any judgment such as this that has dealt with the issue of capacity.

For those reasons, I give permission for Dr Camden-Smith’s report and this judgment to be disclosed to any mental health or capacity assessor in respect of AH.

That is the judgment on capacity. The matter of best interests and, in particular, where AH ought to live in the future will be considered at a hearing just before Christmas.