Capacity and silos (again)

The Court of Protection team at 39 Essex Chambers consider a recent case that shows the difficulty in reconciling the decision and time-specific structure the MCA requires when assessing capacity with the approach outlined by the Court of Appeal.

The case of London Borough of Tower Hamlets v A & KF [2020] EWCOP 21 (Senior Judge Hilder) was concerned with whether A – a 69 year old woman who had suffered a stroke and been diagnosed with Korsakoff’s dementia – had capacity to make decisions about her residence. It was agreed that she lacked capacity to make decisions about her care, and the court did not revisit this agreement.

A had been admitted on an interim basis to a care home after a hospital stay, but wanted to return to her flat. There was no dispute that she required care to maintain her nutritional status, to ensure compliance with her medication regime and to provide the opportunity for some sort of structured social activity. It was also agreed to be essential that A continued her abstinence from alcohol.

The dispute between the local authority and the Official Solicitor on behalf of A boiled down to whether one could properly separate the issue of A’s capacity to make decisions about her residence and care. The local authority argued that “an understanding of the kind of care required is fundamental to any decision on residence”, relying on the Court of Appeal case of B v A Local Authority [2019] EWCA Civ 913 in which the court had (at paragraphs 63-4) accepted the criticisms of the first instance judge’s approach of analysing B's capacity in respect of different decisions as self-contained "silos" without regard to the overlap between them. In particular it was, in B, said that the first instance judge’s conclusion on capacity in relation to residence “was fundamentally flawed in (1) failing to take into account relevant information relating to the consequences of each of those decisions, and (2) producing a situation in which there was an irreconcilable conflict with his conclusion on B's incapacity to make other decisions, and so (3) making the Local Authority's care for and treatment of B practically impossible".

Thus it was argued by the local authority in this case that, as A could not 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” (emphasis added).

The Official Solicitor, on the other hand, argued that assessing care and residence separately did not mean they had been separated into silos. Rather what was required was “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".

The court rejected the local authority’s approach, reminding itself that in “cases which come to the Court of Protection for determination, decisions about where a person lives and decisions about what care a person receives are usually considered as individual domains of capacity” and that such “an approach is clearly in keeping with the Act’s ‘issue-specific’ approach to decision-making.” Accordingly. Senior Judge Hilder found, there “is ample authority for considering residence and care as individual domains of capacity.” She accepted that there was an overlap between the two, but resisted the idea that lacking capacity in one domain (here, care) means that one also lacks capacity in another (here, residence). That amounted to conflating the two domains. In other words, “it is not necessary to make a capacitous decision about care in order to make a capacitous decision about residence”.

On the evidence before her, and applying this approach, Senior Judge Hilder found that A had capacity to decide upon residence, even though she lacked capacity to decide upon her care arrangements.

Comment

This case lays bare the real difficulty in reconciling the decision- and time- specific structure the MCA requires when assessing capacity with the approach of the Court of Appeal in the B case.

In the case of B, it was perhaps more obvious that in concluding B had capacity to make decisions about her residence but lacked capacity to make decisions about contact with Mr C, in circumstances where she was choosing to live with Mr C, the judge produced “a situation in which there was an irreconcilable conflict with his conclusion on B's incapacity to make other decisions, and so … making the Local Authority's care for and treatment of B practically impossible".

However in the case of A, as:

• there was a difference in the kind of care that she was going to receive between the two different available residence options –her own flat and the care home – and this was likely to impact on her functioning and well-being;
• the court accepted that the care that she would receive in both places (at least in broad terms) was part of the relevant information A was required to understand to make decisions about residence; and
• A lacked the capacity to make decisions about her care needs,

It is arguably difficult to see how A could be said to be able to weigh the different care regimes in the balance when choosing between the two options, and hence difficult to see how she could properly be said to have capacity to decide upon her residence.

The Supreme Court have given conditional permission to appeal in the B case, and so it is likely that there will be more on this issue to come – so watch this space…

It is also worth noting that Senior Judge Hilder observed, almost in passing at the end of the judgment, that a determination that a person lacks capacity to determine the care that they should receive necessarily means that they lack capacity for purposes of the DoLS regime. This observation is logically impeccable, but it is, on one view, odd that a person could have capacity to decide upon residence – i.e. where they live – but nonetheless still meet the capacity requirement for DoLS.

In due (but at the time of writing unknown) course, when the Liberty Protection Safeguards come into force, this particular oddity may be removed because the focus of the question will not be tied up with residence and/or care, but upon capacity to consent to the arrangements that confine the person for purposes of enabling their care and treatment.

This article was written by the Court of Protection team at 39 Essex Chambers.