A serendipitous judgment

If a judgment can be serendipitous, then this was. Last week I gave a case law update to the fantastic Yorkshire and Humber Best Interests Assessors conference. In that update I talked about Article 8 and issues where an older person wanted to return home, but it was felt they were safer in residential care.   I described case law where the focus had been on a person’s desire to be reuinited with a loved one (in particular, DJ Eldergill’s judgment in A London Local Authority v JH & Anor [2011]), but grumbled that no judgments had yet been published about a person’s desire to be reunited with their home. This surprised me, as there are surely large numbers of older people in care homes who want to return to their homes, but where the ‘family life’ pull isn’t a factor. I then spent the best part of this week complaining about how fuzzy the concept of 'capacity' is, how little detailed guidance (as opposed to equivocal platitudes) the courts have given on how capacity should be assessed, and how much potential for arbitrariness there is in capacity assessments...  So, it was with a great deal of pleasure that Baker J’s judgment in CC v KK and STCC (2012) arrived in my inbox this morning. In the first place, it’s a much needed case about an older person who wants to return home. In the second place, it goes into considerable detail about what a good capacity assessment looks like. This case will not only shore up people’s rights to self-determination, it should also place capacity assessors on a much surer footing about what is expected of them by the law.  (By the by it also talks about the meaning of deprivation of liberty, and - with a few sideswipes at Cheshire - finds that a person who is objecting and 'has somewhere else to go and wants to live there' - see Cheshire [58] - isn't deprived of their liberty because their objections aren't causing enough conflict. But we'll let discussion of the parlous state of DOLS case law pass for now...).



The dangers of the ‘protection imperative’ in capacity assessment

One of the key problems for capacity assessors is the ever-present knowledge that if they find a person has capacity, and some harm then befalls them because of a decision they were allowed to take, they will be held accountable.  This is legally possible under the 'duty of care' or positive obligations under the human rights act, but it's far more likely that blame will come from public, peers or press.  There are a growing array of judgments, Local Government Ombudsman reports and Serious Case Reviews which castigate professionals for working from the ‘presumption of capacity’.  By contrast, there are only the barest sprinkling of cases where professionals have been litigated for treating a person as lacking capacity when in fact they had it (most cases involving professionals trampling over people's rights to self-determination have turned on best interests, not capacity).  Even when the courts have found that a person has capacity, they don't escape censure and headlines if a person comes to harm - see, for example, the comments of an 'outraged' coroner regarding the Court of Protection's decision that a man had capacity to return to his 'filthy Mitcham flat', where he subsequently died.  What's a capacity assessor to do?  A doctor once commented to me ‘I’d rather be litigated by P for overriding her wishes and preferences than by her family because she died’. I don’t agree with that sentiment, but I think its an understandable feeling.  The irony in all this is that capacity assessments were meant to provide immunity from liability for acts, but I bet the fear that haunts social care professionals at nights isn't being litigated for paternalistic acts, but for omissions to act where something goes wrong.  In the event of something going wrong, you want a really solid and robust capacity assessment to fall back on to explain why you let a person take a particular risk, but when the whole concept is so fuzzy there is a clear temptation to opt for the risk averse option.

Baker J (following Ryder J in Oldham Metropolitan Borough Council v GW & Ors [2007]) recognises that there are strong pulls towards finding a person lacking in capacity where the impulse to protect is strong: 

In assessing the evidence, the court must be aware of the difficulties which may arise as a result of the close professional relationship between the clinicians and professionals treating and working with, P... [In] cases of vulnerable adults, there is a risk that all professionals involved with treating and helping that person – including, of course, a judge in the Court of Protection – may feel drawn towards an outcome that is more protective of the adult and thus, in certain circumstances, fail to carry out an assessment of capacity that is detached and objective. On the other hand, the court must be equally careful not to be influenced by sympathy for a person’s wholly understandable wish to return home.' [25]  (see also PH v A Local Authority (2011) at paragraph 16).

Baker J went on to say that there was a danger ‘that professionals, including judges, may objectively conflate a capacity assessment with a best interests analysis and conclude that the person under review should attach greater weight to the physical security and comfort of a residential home and less importance to the emotional security and comfort that the person derives from being in their own home’ [65]. He goes on to reiterate Munby LJ’s well-worn (but perhaps insufficiently well-used) dictum: 'What good is it making someone safer if it merely makes them miserable?' 

Guidance on assessing capacity: the ‘blank slate’ problem

I suspect one of the most important elements emerging from this case will be what Baker J had to say about what he calls the ‘blank slate’ approach to assessing capacity. When KK’s capacity to decide where she lives was assessed, she was given no detailed information about what support would be available to her if she were to return home. In effect, there was only one care plan on the table – the residential home – and she was being asked to choose between that detailed and well known care plan (as she was living there) and ‘a return to the bungalow with no or limited support’ [68]. But, said Baker J, this wasn’t in reality the case – there was no suggestion that if KK went home she would receive only very limited support. In order to facilitate a person making a choice between staying in a residential care home and going home, he said, a person ‘must be presented with detailed options’ [68]. Supporting a person to make a choice (as per s1(3) MCA) requires:

‘...a detailed analysis of the effects of the decision either way, which in turn necessitates identifying the best ways in which option would be supported. In order to understand the likely consequences of deciding to return home, KK should be given full details of the care package that would or might be available.’ [68] 

I wouldn’t like to speculate on how often this happens, but I’m aware of situations where local authorities have simply refused to say what alternative care would be put in place if a person lived in the place they want to return to. This is usually an issue at the point of a ‘best interests’ decision. Now, if a local authority is saying on public law grounds ‘we simply wouldn’t put in place any care at home’, then that’s a judicial review matter and the Court of Protection can’t spring a package of care out of them that they wouldn’t offer even if a person had capacity. I’m not sure how robust that decision would be under public law (I’d be tempted to say “of course they must make some offer of support at home, even if it would be manifestly inadequate”, but then there’s the ruling in Khana v London Borough Of Southwark [2001], which frankly looks weirder by the year given the way it ignored capacity issues). But the critical point here is that alternative care plans must be sufficiently detailed not just for best interests decision makers, but for the assessment of capacity itself. Now, I can imagine some local authorities not taking too kindly to being expected, in effect, to produce two (or more?!) detailed care plans – one for where the person wants to live, and one for where the local authority think they should live. I can imagine them finding it tough to plan an ‘alternative’ which they see as inadequate to meet a person’s needs, or not in their best interests or whatever. But it’s important to remember that a) this isn’t about best interests, this is about capacity – best interests aren’t in the picture yet; and b) even if not all care needs are met by the alternative care plan proposed by the local authority, a person has a right to accept a care plan which leaves some needs unmet provided they have capacity.

From a practical perspective, this puts the mental capacity assessor under the DoLS in a tricky spot. As somebody pointed out to me the other day, DoLS are odd in that usually under the MCA the same person is responsible for assessing capacity as for making a best interests decision, and they are also usually the person proposing whatever care or treatment is on the table. So it’ll be up to them to flesh out the alternative support packages (which is their job to do anyway), as well as assess capacity. But what of an ‘expert’ capacity assessor who isn’t responsible for care planning? What of a best interests assessor, for that matter, who isn’t responsible for care planning? I think this judgment means that DoLS teams will have to stamp their foot a bit if their colleagues in the local authority or health are unwilling to produce detailed support packages for the alternatives in question. Because, this judgment suggests, they simply can’t assess capacity without it.

The place of ‘insight’ into assessing capacity

The ruling was also interesting for what it had to say about insight. Various clever people have pointed out that it’s all too easy to conflate ‘capacity’ with ‘insight’ and with a person basically agreeing with whatever view the capacity assessor takes of their diagnosis or care needs. (e.g. ALLEN, N. (2009) 'Is Capacity "In Sight"?' Taking Stock: The Mental Health & Mental Capacity reforms: the first year (9th October 2009, Royal Northern College of Music, Manchester); BANNER, NATALIE F. (2012) 'Unreasonable reasons: normative judgements in the assessment of mental capacity', Journal of Evaluation in Clinical Practice 18(5) p 1038-1044; HOLROYD, J. (2010) 'Clarifying Capacity: Autonomy and Value' Autonomy and Mental Health (7-8 January 2010, CRASSH, Cambridge)). This case suggests that the courts – or Baker J at least – are on the lookout for this.

The local authority had argued that ‘awareness of her care needs is superficial. While she may have a general understanding of the decisions that need to be made, she lacks understanding of the likely consequences of her decisions’ [57]. It was argued that KK was unable ‘to weigh up information that does not concur with her fixed view that she should return to the bungalow’ [52]. Now, this is quite an interesting issue in its own right. Capacity assessment is not some kind of scientific process where capacity is ‘measured’, it’s a social interaction - often with hugely high stakes for the person being assessed. If I were having a conversation with a person and something I desperately wanted hinged on it, I think I would probably try to convince them that it was a good idea and minimise the risks. That’s how some people argue. That’s a pretty standard persuasive tactic when arguing a point. It may not mean that a person doesn’t understand the risks – it might mean they don’t want to hand a person they regard as powerful any more ammunition to deny that it’s a good idea. Have Cameron and Osborne acknowledged the risks of Plan A? No. Does that mean they lack capacity... (perhaps not such a good example, sorry). I digress.

So, the local authority argue that KK has a ‘superficial’ understanding of her care needs (on which more below), but for KK her desire to go home trumps the problems which might ensue. According to the local authority this means she’s not weighing the information correctly. Is this a cognitive failure, or is this more like what Banner calls a ‘normative mistake’ where she simply doesn't attach the weight to the different possible outcomes that assessors think she should.  Did the assessors believe that if KK really understood the risks of a return home then she must want to stay in the care home - therefore, although she appears ‘superficially’ to understand the risks, the fact she still wants to return home means that she can’t really understand them? One way of identifying these types of situations would be to ask whether there is anything that a person could say, to convince a capacity assessor, that they had both understood the risks and were prepared to tolerate them? Or is this, as we saw in a recent ruling on anorexia, a Catch 22 situation where the only way you can be said to have capacity is to agree with your assessor’s view of the weight you should accord to particular options?

The importance of KK participating in court proceedings

I’ve always found it troubling to think that – in theory at least – the Court of Protection can make determinations about a person’s capacity, or at least proceed to make decisions on the basis of incapacity, where the judge has not met the person in question. I’m aware that many Court of Protection judges do make efforts to meet ‘P’ where possible. I wonder how far not meeting with P is compatible with the following extracts from ECtHR rulings on deprivation of legal capacity proceedings:

The Court concludes that the decision of the judge to decide the case on the basis of documentary evidence, without seeing or hearing the applicant, was unreasonable and in breach of the principle of adversarial proceedings enshrined in Article 6 § 1 (see Mantovanelli v. France, judgment of 18 March 1997, Reports of Judgments and Decisions 1997-II, § 35). Shtukaturov v Russia (2008) [73]

...The Court considers that judges adopting decisions with serious consequences for a person’s private life, such as those entailed by divesting someone of legal capacity, should in principle also have personal contact with those persons. [84]

...at the end of the day, it is the judge and not a physician, albeit a psychiatrist, who is to assess all relevant facts concerning the person in question and his or her personal circumstances.  X and Y v Croatia (2011), [84]-[85] 

Like the judge in X and Y v Croatia, Baker J was not content to rely upon ‘expert’ assessments of capacity in coming to his own opinion (something which the local authority seem to have found challenging, see paragraph 51). He met with KK, and what really comes through in reading the judgment is just how pivotal that encounter was in coming to his conclusion – against all the evidence of the experts – that she had capacity. It was through Baker J's discussion with KK that we learned that KK, in fact, had a pretty detailed care plan of her own worked out for her return home, comprising ‘assistance in washing including myself, toileting, preparation of food and day-today chores. I anticipate that this could be adequately provided for with four, one hour care visits a day’ [48]. She also identified that “Ensure” nutrition drinks could supplement her diet, and explained that her dietary issues in the care home arose in no small part because she didn’t like the ‘baby-fied’ mashed up food there. She wanted to plan shopping lists and menus with care staff in her own home and eat salads. She even had ideas of what hours she would need to be put to bed and get up in the morning. It’s hard to say without seeing the original capacity assessments, but the sheer level of detail of KK’s understanding of her care needs doesn’t seem to have been conveyed to the judge through the expert reports. Paragraph 38 complains that the assessments offered little detail of the actual conversations that were had with the assessor.

I’m sure there are a few capacity assessors out there who might feel a little disgruntled at the idea of a judge picking over their ‘expert’ assessment in light of a conversation he had with a person. To that I say: capacity is a legal concept, not medical. There are many factors around capacity which are not ‘medical’ but may relate to a person’s social situation (see A PCT v AH and V v R for a good examples of this). Incapacity under the MCA often requires a diagnosis, yes, but there is nothing in the statute which says that the functional test is the sole purview of clinical expertise. This case is a very good example of why. This isn’t a matter of black-box clinical judgment which the court isn’t entitled to question, this is a case of the court reviewing what Stefan aptly describes as ‘a value judgment arising from an individual's conversation or communication with individuals in positions of power or authority’ (STEFAN, SUSAN (1992-1993) 'Silencing the Different Voice: Competence, Feminist Theory and Law', Miami Law Review 47 p 763). Capacity isn’t a blood test, it’s a conversation and a value judgment, and both of these can go wrong.

The dignity of risk 

The judgment never got on to best interests – which is great for KK, but not so good for filling the gaping hole in MCA case law on when it might be in somebody’s best interests to return home to live alone, notwithstanding the risks therein. However, there were comments in the judgment which suggested that Court of Protection judges might be just as receptive to the importance of home as to family life. Baker J quoted this moving passage from KK’s oral evidence:

...KK repeated that she wanted to live in her bungalow. She said: “Everything I’ve got is in that bungalow. My whole life. Everything there is familiar to me. I’ve got my hobbies. I’ve got all sorts of things. I am doing a model village. It is in my bedroom in the bungalow.” ...She told me that she could see everything in the village from her bungalow window – the church and the tower, the whole village. She collects porcelain dolls. [45] 

He went on to say that'There is, truly, no place like home, and the emotional strength and succour which an elderly person derives from being at home, surrounded by familiar reminders of past life, must not be underestimated.' [70]
When the capacity assessors had put to KK the risks of returning home, she had responded that ‘she would like to take the risk’; this led one to conclude ‘She appeared to be attending to the subject matter throughout this conversation but I was not convinced that she was able to hold complex concepts in her mind in order to weigh risks and benefits and to make informed choices regarding her future’ [32]. In her oral evidence to the court, KK's evidence on this point was straightforward:

‘If I die on the floor, I die on the floor. I’d rather die in my own bungalow, I really would.’ [50] 

In finding that this was a capacitous view to hold, the judgment is a strong endorsement of the dignity of risk, and a warning against using findings of incapacity to try to eliminate those risks.