Using, weighing and drinking: The Court of Appeal provides guidance on capacity

In an appeal concerning whether an alcoholic with frontal lobe damage had capacity to decide where to live or what care he should receive, the Court of Appeal has provided important general guidance on the assessment of capacity in the Court of Protection. Bryan McGuire QC and Sian Davies report.

In RB V Brighton And Hove City Council RB was, prior to his accident in 2007, an alcoholic with a chaotic lifestyle. However, the accident had caused damage to RB’s frontal lobe, which impaired his mental processes and in particular his ability to use or weigh information. He also had major physical disabilities. He was and is confined to a wheelchair most of the time. He wears a leg brace and has lost effective use of his left hand. Nonetheless he wished to live in the community, and to resume drinking despite the attendant dangers to him. He did not co-operate with rehabilitation treatment and absconded from the care home thereby preventing the delivery of care. A standard authorisation was sought and obtained, which he challenged by these proceedings.

Arguments

RB relied in particular of the recent case of IM on capacity to consent to sexual relations, asserting that people do not weigh up decisions to drink any more than they do decisions to engage in sexual relations; that using and weighing is irrelevant in emotional or visceral matters; and he should be released from his supervised care home. Brighton and Hove countered that one does not look at capacity through the prism of other cases. One simply reads and applies the words of the Act. RB cannot use or weigh information, so he lacks capacity to choose where to live or what services he requires.

Findings and guidance

RB’s appeal was dismissed. Jackson LJ, with whom Arden and Fulford LJJ agreed, found:

1. The task of the authority and the court is to apply the words of MCA 2005. It is drafted in plain English. Judges have rightly cautioned against glossing the statute with judicial dicta and paraphrases.
2. That is not to say that all other cases are irrelevant. “The task of the court is to apply the statutory provisions, paying close heed to the language of the statute. Nevertheless, as judges tread their way through this treacherous terrain, it is helpful to look sideways and see how the courts have applied those statutory provisions to other factual scenarios. This has nothing to do with either the doctrine of precedent or the principles of statutory interpretation. The purpose is simply to see how other judicial decisions have exposed the issues or attempted to reconcile the irreconcilable” (paragraph 40).
3. Reliance on arguably analogous cases as binding authority was wrong. RB submitted that an alcoholic’s decision to drink is emotional or “visceral”, and that this case is on all fours with IM and RB’s decision to drink is analogous to IM’s decision to engage in sexual relations. But that was the wrong way to make use of authorities in this highly fact sensitive jurisdiction. That approach sucks the court into convoluted reasoning. It also drives up costs (paragraphs 64-5)
4. The decisions which RB wishes to make require a process of using and weighing up relevant information. On the basis of the expert evidence and of the district judge’s findings of fact, RB is not capable of carrying out that mental process. RB is unable to appreciate and weigh up the risks which he will run if he resumes his former way of life and goes out on drinking bouts. Therefore, applying MCA section 3(1)(c), RB does not have capacity to make this decision (paragraph 70).

To read the full judgment, please click: RB v Brighton Hove CC judgment. 

Bryan McGuire QC and Sian Davies are barristers at Cornerstone Barristers. They were instructed by Nicole Mouton of Brighton & Hove City Council Legal and Democratic Services.