Hospital discharge and subsequent placement should be considered as separate matters when determining capacity: CoP

The Court of Protection has allowed an appeal against a decision that a woman lacked capacity to consent to discharge from hospital and to be placed in specified accommodation, saying that the discharge and placement offer should have been treated as separate matters.

Mr Justice Peel concluded that “to elide discharge from hospital and proposed living arrangements, and present them to RB as the only option, wrongly conflated separate decisions which needed to be assessed on their separate merits, and was based on the false premise that living in the bungalow was the only option.”

Outlining the background to the case in Wiltshire County Council v RB & Ors [2023] EWCOP 26, Mr Justice Peel said that RB is a 29-year-old woman diagnosed with Autism Spectrum Disorder. He added: “She is intelligent and literate, having achieved 11 A* grades at GCSE. She has an unusual grasp of the Court of Protection process”.

Since 2015, RB has been electively mute, and chooses to communicate in writing or by pointing to words on an alphabet board.

Since entering sixth form, she has had “several admissions” under the Mental Health Act 1983, Mr Justice Peel noted.

In June 2020, RB was found to have capacity to decide where to live after leaving a community placement. In August 2020, she was detained in a psychiatric hospital for over 2 years. On 3 January 2023, she was discharged to a bungalow with a 24/7 package of 2:1 care.

On this, Mr Justice Peel said: “She was clearly deeply unhappy there, partly as a result of being transported against her will and subject to physical restraint. Over two days, she undertook several acts of deliberate self-harm including attempts to strangle herself.”

Mr Justice Peel noted that on 5 January 2023, RB herself emailed the Court of Protection seeking the court’s assistance.

She was admitted to a general hospital on 7 January 2023 where she remains. “She is medically fit for discharge but has consistently said that she does not want to return to the bungalow, nor does she agree to return there”, said Mr Justice Peel.

He added that the hospital is entitled to take steps to remove RB from its premises.

A direction was made for the instruction of a consultant psychiatrist, Dr Camden-Smith, to report.

On 5 May 2023 at the hearing before HHJ Cronin at Bristol Civil and Family Justice Centre, Dr Camden-Smith gave evidence, saying that RB lacked capacity to make a decision about agreeing to hospital discharge on the basis that she was unable to weigh or use information about living in the bungalow, said Mr Justice Peel.

On a number of occasions, she described this opinion as her “best guess”, Mr Justice Peel added.

After Dr Camden-Smith’s oral evidence had concluded, RB contacted the court directly and provided her own written position statement, as set out by Mr Justice Peel:

‘Not obeying the relevant authority is not equivalent to a lack of capacity or symptom of mental impairment. Not doing what a particular profession tell you to do is not indistinguishable to a lack of capacity or mental impairment. It is not a decision, if there is only one option. It is submitting to the will of the authority who have sunk cost into the option. I have no interest in living as wished.’

‘I do not wish to - as I have inadvertently done so - contribute to the enactment of my own terrors’.

“This sentence I take to be a reference to returning. to the bungalow”, said Mr Justice Peel.

HHJ Cronin said that RB’s document was “a letter which is articulate, on the point and can be easily understood”, noted Mr Justice Peel.

At the conclusion of the hearing, HHJ Cronin produced the first draft of the order which declared that RB lacked capacity to decide “where she should live”.

The crucial element of HHJ Cronin’s finding was founded on an inability on the part of RB to “use or weigh [the information relevant to the decision] as part of the process of making the decision” (s3(1)(c) of the Mental Capacity Act 2005).

Mr Justice Peel said: “Counsel instructed on behalf of RB by email to the judge requested an amendment to the order on the basis that the hearing had proceeded as a decision about hospital discharge.

“The judge partially accepted the request and altered the declaration to capacity to decide “to consent to be discharged from the hospital to live at the bungalow”, which seems to me to be a significantly different declaration from either her original formulation, or that requested on behalf of RB”, he added.

RB, through the Official Solicitor as her litigation friend, appealed the decision. On 12 June 2023, Judd J gave permission to appeal on 4 of the pleaded 7 grounds.

The grounds considered by Mr Justice Peel were as follows:
• Ground 1: When addressing capacity to make the relevant decision the learned judge did not correctly identify either the matter in issue or the decision to be made.
• Ground 2: The learned judge erred by merely adopting the expert’s conclusion on capacity, and not performing her own analysis of RB’s ability to make the decision in question.
• Ground 3: The expert had taken an erroneous approach to capacity, confusing the concept of having mental capacity with the exercise of that capacity. By merely adopting the expert’s decision, without any reasoning of her own, the judge fell into the same error.
• Ground 6: Insufficient evidence, analysis or reasoning in the decision regarding capacity to decide upon care.

Considering Ground 1, Mr Justice Peel said: “It seems to me at the hearing there was some confusion as to precisely what capacity issue required adjudication. The capacity declaration made by the court directly linked discharge from hospital to a return to the bungalow.”

He added: “I observe that in eliding these two components in this way, the process adopted by the court departed from that recorded by agreement in a court order dated 21 February 2023:

‘The information relevant to a decision regarding hospital discharge is:
a) That she is medically fit for discharge, i.e. has no physical reason to be occupying an acute medical bed.
b) That there is a place to which she can be discharged, i.e. the bungalow.
c) That there may be other places to which she could be discharged (to be confirmed by the applicant by 8 March 2023).
d) That if she does not agree to go, the RUH will take steps to remove her against her will, and the nature of those potential steps, including: potential legal proceedings; potential use of physical force and the police (if she is deemed to have capacity); and potential use of general anaesthetic (if she is deemed not to have capacity), following a further decision of the court’”

Mr Justice Peel noted that at the hearing before HHJ Cronin, “discharge from hospital was predicated on the basis that the only possible outcome was a return to the bungalow, and the capacity decision was therefore made on the basis.  “Instead, it should have been assessed as set out in the recital, with a more holistic view of the circumstances.”

Concluding on ground 1, he said: “In my judgment, had the judge considered the two decisions separately, she may (I emphasise the word “may”) have reached a different decision on capacity to consent to discharge, and would have needed to go on to consider the question of returning to the bungalow as a separate capacity decision issue.

“I well understand the difficulty faced by the judge, who described this as an enormously difficult decision. But in the end, I have reached the conclusion that the judge was wrong to elide the declarations as she did.”

Mr Justice Peel dismissed ground 2, noting: “I am not persuaded that the judge simply adopted the expert’s evidence without any independent analysis. She said herself in her judgment that the decision “is one that the court needs to make”.

Considering ground 3, Mr Justice Peel said: “The judge concluded that lack of ability to use and weigh information “may come about because of the inclusion in the information of the bungalow, which she has such a negative feeling about….”. But I am not convinced that the judge sufficiently weighed on the other side of the scales”.

He cited a number of examples, including that RB has “clearly expressed wishes and feelings set out, inter alia, in her letter to the judge which the judge found to be articulate”.

He added: “The fact that RB had spoken of a willingness to go into a care home which is an example of someone apparently weighing options, even if that option was not presented to her as part of the assessment of her capacity in the context of hospital discharge.”

Allowing ground 3, Mr Justice Peel said: “It is not for RB to establish capacity or justify her autonomous wishes; she is presumed to be capacitous. To interpret a refusal to contemplate returning to the bungalow as indicative of lack of capacity, or causative of lack of capacity, as the expert seems to do, should be weighed against an alternative explanation that she was simply expressing a capacitous wish not to go there again after her prior experiences.

“In my judgment, the judge did not adequately weigh up these competing factors in circumstances whereby any measure a strongly held wish not to return to the bungalow, with clearly stated reasons, was understandable.”

On ground 6, Mr Justice Peel noted that the question of capacity to decide upon care was added upon a request for clarification.

He said: “There does not appear to have been any substantive analysis and in the circumstances this ground, too, in my judgment, should be allowed.”

The appeal was allowed on three of the four grounds, and remit for a rehearing before HHJ Robertshaw on 27 June.

Concluding with a general comment about the bungalow, Mr Justice Peel said: “I appreciate the complexities of this case which is challenging to all involved. I appreciate also the immense pressure on resources. Nevertheless, from what I have seen and heard, for RB to return to the bungalow risks causing her profound harm. What happened during her time there is shocking. The expert’s view about the potential impact on her physically, emotionally and psychologically is compelling. Transportation would almost certainly take place against her will, and require physical restraint.

“It seems to me that alternative options simply have to be sourced. The expert says that RB should be given a viable alternative that is not the bungalow, and I agree. If the bungalow is removed from the equation, it is possible (indeed, I suspect, likely), that capacity and best interests issues may well resolve themselves.”

Lottie Winson