The local authority sought determinations of capacity in respect of an adult, PB, with a lengthy history of serious alcohol misuse who had developed alcohol related brain damage and was assessed as meeting the criteria for a dissocial personality disorder. The regime in the unit where PB lived was a rigorous one where he was not permitted to leave the unit unescorted to prevent him from drinking, which he resented. The consultant psychiatrist concluded that, despite finding that he could understand and use information relating to the damage his alcohol consumption might cause, he lacked capacity to make decisions about his residence and care since he did not accept that recent episodes had demonstrated that he was unable to control his drinking and would continue to drink to excess if not supervised. The parties sought guidance on (i) how the court should approach the assessment of capacity of individuals who were alcohol dependent and (ii) whether or in what circumstances the Mental Capacity Act 2005 should be used coercively to prevent people who were alcohol dependent from gaining access to alcohol. It was submitted on behalf of PB that the consultant psychiatrist had applied too high a test in requiring PB to concede or acknowledge “beyond doubt” that he was unable to control his drinking and would be “certain” to drink to excess if not supervised.
On the application—
Held, (1) in determining that the flaw in PB’s decision-making was his inability to understand that he would never be able to drink alcohol other than to excess, the consultant psychiatrist had set a test which was too high and did not integrate those facets of reasoning which had caused him, in an earlier assessment, to conclude that PB had the capacity to decide on issues relating to his residence and care. It imposed a very challenging test of capacity to expect an alcoholic to be required to concede or acknowledge “beyond doubt” that he was unable to control his drinking and would certainly drink to excess if not supervised. A test which was so absolute and unyielding was difficult to reconcile with the fundamental principles of the 2005 Act, it significantly eroded the space between a decision which was unwise and one which an individual did not have the capacity to take, and it was not easy to reconcile with the body of case law emphasising that the relevant tests in assessing capacity in issues such as residence and care should not be set at a high level. The test to be applied was that set out in section 3 of the 2005 Act. Since PB was able to analyse his dependency on alcohol in a way which was both articulate and rational, was clear as to the dire consequences of his drinking to excess, and could make the association between the consequences of drinking to excess and the impact on his care arrangements, the evidence was not sufficiently choate to rebut the presumption of capacity, which was as important as the presumption of innocence in criminal law, to make decisions about his residence and care. Although he was content to live in the unit on the proviso that he was permitted to drink, the arrangements amounted to deprivation of liberty because they curtailed his choices and required him to exercise guile and deception to achieve his own wishes (paras 6, 22, 29, 30, 42).
(2) The phrasing of the second issue implied coercion. It implied persuasion by the use of force or threats. As such it had no place in the Court of Protection and jarred entirely with the applicable principles of the 2005 Act. Moreover, the question only arose when the issue of capacity had been determined. If an individual (“P”) had capacity, then manifestly the Act did not apply. If P lacked capacity, facilitating compliance with a regime to which he was opposed would always involve the lightest possible touch, the minimal level of restraint or restriction and for the shortest period of time. In other words, the level of intervention had to be proportionate (para 50).
Per curiam. While it is not possible to give further guidance, it might be useful to reiterate some general principles: (i) the obligation of the court to protect P is not confined to physical, emotional or medical welfare, but extends at all times to the protection of P’s autonomy; (ii) the human instinct to protect vulnerable people from unwise decisions must never be permitted to eclipse their fundamental right to take their own decisions where they have the capacity to do so; (iii) the framework of the Mental Capacity Act 2005 establishes a uniquely fact-sensitive jurisdiction; (iv) the presumption of capacity is the paramount principle which can only be displaced by cogent and well-reasoned analysis; (v) the criteria for assessing capacity should be established on a realistic evaluation, the bar should never be set unnecessarily high, nor should the professional instinct to achieve that which is objectively in a person’s best interests influence the formulation of the criteria on which capacity is assessed; (vi) it follows that the weight to be given to P’s expressed wishes and feelings will inevitably vary from case to case (paras 51, 52).
Catherine Rowlands (instructed by Solicitor, Tower Hamlets London Borough Council) for the local authority.
Fenella Morris QC and Peter Mant (instructed by Bindmans llp) for PB (by his litigation friend the Official Solicitor).