Cumbria County Council v A [2020] EWCOP 38

Tower Hamlets LBC v PB [2020] EWCOP 34

The Court of Protection has confirmed that where a Deputy wishes to stop acting, they cannot do so by simply withdrawing their consent to act. An application to cease acting must be made to the court, which does have some discretion when considering whether to allow such a change.

If a Property and Affairs Deputy for a protected party wishes to cease acting in that capacity, can they be forced to continue? The answer is more nuanced than one might initially think.

In this matter, a professional Deputy (a solicitor) applied to the court to be appointed as Property and Affairs Deputy in seven cases. The existing Deputy in each case was Cumbria County Council, which had devised certain criteria, the application of which led to the conclusion that it no longer wished to act as Deputy in respect of the seven cases. It therefore asserted its desire to relinquish its position and supported the professional Deputy’s application to be appointed in its place.

The Court noted that under section 19(3) of the Mental Capacity Act 2005, a person could not be appointed Deputy without their consent. It did not follow, however, that after their appointment, they could withdraw their consent and cease to act without reference to the court. Reasoning by analogy from the case of Bradbury v Paterson [2014] EWHC 3992 (QB) (which dealt with applications to discharge the Official Solicitor as a litigation friend) the court confirmed that an application to the court had to be made. Nor did it follow that such an application would inevitably succeed. The court would consider all the facts of the case and determine the application based on what was in the best interests of the protected party concerned.

Relevant considerations would include the extant Deputy’s reasons for wishing to cease acting (e.g. it would be extremely difficult to force an individual Deputy to continue acting beyond their retirement), the size and complexity of the estate, and the nature and state of the relationship between the protected party and the Deputy. The cost to the estate of switching, for example, from a public body to a private professional, could also be relevant.

In practical terms, this judgment is likely to be of most interest to public bodies providing Deputyship services, such as local authorities. Although it is clear that a refusal to continue acting as Deputy is not sufficient to achieve that result, it is only where the court is dealing with something like a local authority that declining an application to cease acting is a realistic possibility – it is only in such cases that the court could require a Deputy to continue acting whilst having confidence that a proper and professional service would continue to be provided to the protected party.

Tower Hamlets LBC v PB [2020] EWCOP 34

In this case involving a man with a long history of severe alcohol misuse, the Court of Protection emphasised the importance of preserving autonomy under the scheme of the Mental Capacity Act 2005, and reiterated the distinction between making very unwise decisions, and lacking capacity to make them at all.

PB had a long history of severe alcohol misuse, to the extent that he had sustained brain injury and developed features of a dissocial personality disorder. He also had a range of physical co-morbidities, including Chronic Obstructive Pulmonary Disease (“COPD”), Hepatitis C and HIV.

Following a period of street homelessness and a stay in hospital in 2019, PB was discharged to a supported living placement in a unit operated by the applicant Council, and subjected to a very vigorous regime intended to restrict his access to alcohol (for example, he was not permitted to leave the facility without an escort). PB deeply resented the restrictions on his ability to drink, and although he recognised he had a drinking problem, he felt that he should be permitted to work towards a habit of drinking in moderation.

The Council applied to the Court of Protection to determine whether PB had capacity to take decisions as to his care and living arrangements, and sought guidance more generally on the proper approach to the assessment of capacity in respect of individuals who are alcohol-dependent.

The judgment of Hayden J provides an extremely useful digest of the core principles guiding capacity assessments, and a salient reminder as to the philosophy underpinning the Mental Capacity Act 2005 (“MCA 2005”).

Most prominently, Hayden J emphasised the cardinal importance of the presumption of capacity enshrined in section 1(2) of the MCA 2005, saying that it is “every bit as important as the presumption of innocence in a criminal trial” and that “[t] he philosophy informing the legal framework illuminates the point that this case highlights, namely ‘a person is not to be treated as unable to make a decision merely because he makes an unwise decision’” [6].

In the case at hand, the consultant psychiatrist who reported on PB initially concluded that he had an impairment of the functioning of the mind or brain, caused by alcohol-related brain damage and a dissocial personality disorder, but that he nevertheless had capacity to make decisions concerning his care and residence. Although the expert felt that PB seriously overestimated his ability to control his drinking, he said that:

  • minimisations, rationalisations and justifications despite all evidence to the contrary are typical of people with substance dependence who are not generally considered to lack capacity;
  • [PB] did not exclude the possibility he could die and defended his decision to continue drinking on grounds of autonomy (“it’s my life”) and fatalism (“I’ve not got long to live”); and
  • his answers 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”. Although [PB’s] aim to keep drinking in moderation was unrealistic, “he was using the information that returning to more excessive drinking would be dangerous”.

However, after an unsuccessful trial period in which PB was allowed to leave the unit unescorted for limited periods and came back intoxicated (and behaving abusively), the psychiatrist revised his position, on the basis that PB was not able to appreciate and weigh up the fact that “beyond doubt” he was likely to drink to excess if not supervised.

Hayden J felt that this imposed a test which was too demanding, and which would potentially place alcohol-dependent people in an invidious position. At [29] he said:

“…It strikes me as imposing a very challenging test of capacity to expect an alcoholic, who continues to drink, to be required to concede or acknowledge “beyond doubt” that he is unable to control his drinking and to such a degree that it has become a “certain” fact that he will drink to excess if not supervised. A test which is so absolute and unyielding is difficult to reconcile with the fundamental principles of the MCA, set out above. The effect of such a test strikes me as eroding, very significantly, “the space”…between a decision which is unwise and one which an individual does not have the capacity to take. The application of Dr Costafreda’s test would have the alarming effect of rendering most addicts incapacitous if they are unable to agree with the precepts of the test whilst, to my mind, making a deprivation of liberty almost inevitable to those who are able to agree “beyond doubt” that they are “certain” to drink to excess. Thus, a paradigm catch 22 scenario is created.”

He emphasised that when deciding whether an alcohol-dependent person had capacity to take decisions relating to their care and living arrangements, the court should focus not on whether the person has capacity to decide whether to drink alcohol or not, but on whether that person is able to appreciate and weigh up the consequences of drinking to excess on their care and living circumstances. In that regard Hayden J said at [42]:

“…PB analyses his dependency on alcohol in a way which is both articulate and rational. He is also clear as to the dire consequences of his drinking to excess. He makes the association between the consequences of drinking to excess and the impact on his care arrangement. He reconciles the two in his own mind by his conclusion that he should stay where he is but moderate his drinking to reasonable limits. There is within his plan an inherent recognition that drinking to excess and the sustainability of the placement are irreconcilable. There is much evidence from PB’s history that he is unlikely to be able to achieve this, but the potential gulf between his aspiration to moderation and the likely reality, does not negate the thought processes underpinning his reasoning. In any event I do not consider that there is evidence here which is sufficiently choate to rebut the presumption of capacity. The plan that PB identifies may not be sustainable long term but that does not permit an inference that he is unable to foresee the consequences of drinking to excess on the sustainability of the placement.”

He went on to say at [44]:

“It is difficult to resist the conclusion that Dr Costafreda, having plainly identified a regime of abstinence and sobriety as being in PB’s best interest, considered that his resistance to it and the stark consequences that might flow from it, must indicate an incapacity in his reasoning. The far more obvious conclusion, on the evidence, is that Dr Costafreda recoiled from PB’s bad decision. The decision may hasten PB’s death but PB, like any of us and for the reasons foreshadowed above, is entitled to make bad decisions if he chooses to do so. This is the respect for individual autonomy which courses through the MCA .

As a result, PB was found to have capacity to make decisions as to his care and living arrangements.

At the conclusion of his judgment, Hayden J summarised some useful principles to be borne in mind when considering capacity issues and the operation of the MCA 2005 in relation to alcohol-dependent people. They provide a fitting way to conclude this article:

  1. The obligation of this court to protect P is not confined to physical, emotional or medical welfare, it extends in all cases and at all times to the protection of P’s autonomy.
  2. The healthy and moral human instinct to protect vulnerable people from unwise, indeed, potentially catastrophic decisions must never be permitted to eclipse their fundamental right to take their own decisions where they have the capacity to do so. Misguided paternalism has no place in the Court of Protection.
  3. Whatever factual similarities may arise in the case law, the court will always be concerned to evaluate the particular decision faced by the individual (P) in every case. The framework of the Mental Capacity Act 2005 establishes a uniquely fact sensitive jurisdiction.
  4. The presumption of capacity is the paramount principle in the MCA . It can only be displaced by cogent and well-reasoned analysis.
  5. The criteria for assessing capacity should be established on a realistic evaluation of what is required to understand the ambit of a particular decision by the individual in focus. The bar should never be set unnecessarily high…The professional instinct to achieve that which is objectively in P’s best interests should never influence the formulation of the criteria on which capacity is assessed.
  6. It follows from the above that the weight to be given to P’s expressed wishes and feelings will inevitably vary from case to case.