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Alcohol and capacity

A recent case heard by the Vice President of the Court of Protection, Hayden J, raises three important points about the interpretation and application of sections 2 and 3 of the Mental Capacity Act 2005 (‘MCA’) in the context of alcohol addiction, writes Tony Harrop-Griffths.

These points from London Borough of Tower Hamlets v. PB [2020] EWCOP 34 are:

  1. The circumstances in which, for the purposes of section 2(1), a person’s inability to make a decision is because of an impairment of, or a disturbance in the functioning of, the mind or brain when such an impairment or disturbance is a contributory rather than the sole factor.
  2. Whether alcohol dependency Is such an impairment or disturbance.
  3. Whether, for the purposes of section 3, a person, who drinks to excess when able to, must accept it is certain he will do so in order to understand, as relevant information, that this is a consequence of him drinking alcohol.

Key sub-sections

Section 2(1) of the MCA reads: For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

Section 3(4) reads: The information relevant to a decision includes information about the reasonably foreseeable consequences of (a) deciding one way or another …”

Synopsis

PB is a 52 year-old man with a lengthy history of serious alcohol abuse. He has alcohol-related brain damage and a dissocial personality disorder. The issue was whether he had capacity to decide about residence and care but the underlying issue was whether he had capacity to decide to drink alcohol.

A consultant psychiatrist, Dr. Costafreda Gonzalez, produced 3 written reports and gave oral evidence. In his first report he concluded that if PB started drinking again (at the time he was in a placement with no access to alcohol) it was “almost certain he would lose control and trigger the cycle of homelessness, intoxication, and withdrawals, self-neglect and hospitalisations likely, ultimately, to cause his death”. The judge considered this to be self-evident from PB’s history.

The doctor also concluded that although PB wanted to moderate his drinking, he seriously overestimated his ability to keep his alcohol dependency under control. Nonetheless he found he had the requisite capacity, principally because he showed sufficient understanding and acceptance of the risks to his health and well-being that would result from a decision to go back to drinking.

In his second report, however, Dr. Costafreda reconsidered what the relevant information was and found PB to lack the requisite capacity on the basis that he “did not accept that recent episodes [of excessive drinking since the first report] have demonstrated beyond doubt that he is unable to control his drinking, so that it is in fact certain that he will continue to drink to excess if he is not supervised.”

Counsel for the OS summarised the doctor’s overall formulation of the relevant information for the purposes of section 3 of the MCA as being:

  1. If PB is allowed to go out unsupervised he will drink to excess.
  2. Drinking to excess will result in him developing extreme challenging behaviour with aggression which will likely result in him not being able to access support and becoming homeless.
  3. Drinking alcohol to excess will result in him developing life-threatening physical problems, including aspiration of his own vomit with repeated hospitalisations and a high probability of dying.

The doctor found that PB could understand, retain, weigh/use (2) and (3) but not (1).

The judge found that with regard to (1) the doctor had in effect set the bar too high. He said ‘it was a very challenging test of capacity to expect an alcoholic who continues to drink to be expected to concede or acknowledge beyond doubt that he could not control his drinking to such a degree it was certain he would drink to excess if unsupervised’. He added that the application of his test ‘would have the alarming effect of rendering most addicts incapacitous if they are unable to agree with its precepts’ and that ‘self-evidently, not every addict in some degree of denial can be regarded as incapacitous’. Principally on this basis he found that it had not been proved that PB lacked capacity to decide about residence and care.

He also found it had not been proved that any lack of capacity was, for the purposes of section 2 of the MCA, because of an impairment of, or a disturbance in the functioning of, the mind or brain. Dr. Costafreda considered that the defect in PB’s reasoning that he had identified, namely that he had a false belief as to the extent to which he could moderate his drinking, was due to alcohol dependency and that his brain injury and his personality disorder were contributory factors, all of which could not be untangled. The judge found that it was not enough for the impairment or disturbance to be one of a number of possibilities or was perhaps partly responsible, the inference being that his alcohol dependency was not identified as an impairment or disorder.

Comment

1. This was intended to be a test case: DJ Eldergill had transferred it to the High Court because it appeared to provide an opportunity, as Hayden J put it, for the Court of Protection to look more widely at the scope and ambit of the restrictions placed on those who are dependent on alcohol and who do not have capacity as a result. Unfortunately, in my view, the outcome has not satisfactorily resolved this difficult issue, in part because of the Court’s approach to the relevant information for PB and in part because his dependence on alcohol was not put forward as an impairment or disturbance. 

2. What is ‘relevant information’ is a legal issue, i.e. it is ultimately for lawyers rather than other experts to determine, but, in my view, it appears that the applicable stages or elements as regards PB have been correctly identified by Dr. Costafreda here. (1) is the key but it helps to consider (2) and (3) as well in order to understand the debate at the heart of this case. The three elements represent consequences of PB drinking alcohol and so they need to be considered in the context of section 3(4) of the MCA, namely that relevant information includes information about the reasonably foreseeable consequences of deciding one way or another, i.e. whether or not to drink alcohol.  There are objective and subjective aspects of the test. To begin with, it is for others (ultimately the Court), rather than PB, to determine what the reasonably foreseeable consequences are, from the perspective of the modern equivalent of the man on the Clapham omnibus. Then the issue is whether PB understands, etc. (i.e. understands, retains, uses/weighs) these consequences and if he does not do so he lacks capacity to decide to drink alcohol.

If element (1) represents a reasonably foreseeable consequence of PB drinking, the issue is whether, on a balance or probabilities, he did not understand, etc. that if he was allowed to go out unsupervised he would drink to excess. Whether or not this is considered to set the bar too low (even lower than that set by Dr. Costafreda) or means that many alcoholics lack capacity and may in their best interests need to be deprived of their liberty, it is mandated by the Act.

In another case (I have one in mind) a person may understand, etc. (1) (and even welcome it) but not that this is likely to result in them frequently falling over while drunk at home, frequently injuring themselves to the extent they need to be taken to hospital and at some point dying prematurely as a result of a fall, i.e. a reformulation of (3). Or they may understand these two elements and still want to drink to excess, in which case they have capacity.    

3. If on this basis PB lacks capacity, is this because of an impairment or disturbance? The judgment records Dr. Costafreda as saying that PB’s alcohol dependency, his brain injury and his personality disorder could not be untangled, as causes, and so because the expert did not identify the first of these as a disturbance or impairment, the Court, rightly, could not be satisfied on a balance of probabilities of a link between the effects of the injury and disorder on him and any inability to make a decision for himself. Although not expressed, the appropriate test must be ‘but for’, i.e. but for the brain injury or the personality disorder, or the two of them in combination, would he able to decide for himself?

4. But is alcohol dependency a disturbance or impairment? Alcohol dependence syndrome is a recognised mental disorder and in NHS Foundation Trust v. X [2014] EWCOP 35 Cobb J accepted, but did not decide, that it came within the wording of section 2(1); in the event he decided there was no lack of capacity as a consequence. In my view this issue needs to be revisited.

Tony Harrop-Griffiths is a barrister at Field Court Chambers.

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