Legal Update: London Borough of Tower Hamlets v PB
This case concerned PB, a 52-year-old man with a history of serious alcohol misuse. The question before the court was whether he had capacity to make decisions about his care and residence. If he did not, then a care package could be imposed that would mean his alcohol consumption would be controlled and restricted. If he was found to have capacity, he would be free to drink to excess and risk the serious health problems arising from this.
PB suffered from alcohol-related brain damage and had been diagnosed with a dissocial personality disorder, as well as other severe physical conditions. His alcohol abuse had led to multiple hospital admissions and he could also become abusive to others when under the influence of alcohol. PB became homeless as a result of his alcohol abuse and was then accommodated by the local authority in a supported living placement with a care package designed to prevent him from accessing alcohol. The resulting deprivation of liberty was authorised, but PB objected to it. Whilst professionals wanted PB to abstain from alcohol altogether, PB thought that he could control his dependency, and drink in moderation. His objection to the deprivation of his liberty was not due to the fact that he wanted to leave the place that the local authority had put him in (as he didn’t), but rather to the restrictive care package. As a result of his objection, 2 hours of unescorted leave were trialled; however, from this he returned late and severely drunk, was abusive to staff members, and vomited during his sleep. As such, the unescorted leave was taken away.
Expert capacity evidence from a consultant psychiatrist was sought on three occasions. In the first report it was found that, whilst PB seriously overestimated his ability to keep his alcohol abuse under control, he nevertheless had capacity to make decisions about his residence and care. This was on three grounds:
- His justifications and rationalisation, despite all evidence to contrary, were typical of those with substance dependence and this didn’t mean he necessarily lacked capacity;
- PB’s answers showed sufficient understanding of the affects to his health were he to go back to drinking; and
- he understood, and did not exclude, the possibility that he could die, though nevertheless defended his decision to continue drinking.
The expert subsequently changed his conclusions in two follow-up reports. In these he revised the ‘relevant information’ that PB needed to understand and weigh up, to include:
- if he was to go out unsupervised, he would drink to excess;
- drinking alcohol to excess would result in him becoming aggressive;
- this would likely result in him losing his placement and becoming homeless again; and
- drinking alcohol to excess could result in him developing life threatening physical problems.
This time, the psychiatrist concluded that although PB was able to understand and weigh this information, he lacked capacity to make decisions about his residence and care as he did not accept that he was unable to control his drinking and that it was a certainty he would drink to excess if not supervised; in other words, his thinking was informed by the unrealistic belief that he would be able to contain his drinking within moderate limits.
Conclusion reached by judge
Mr Justice Hayden looked at the concept of unwise decisions in his judgment, and said a person should not be treated as unable to make a decision merely because he makes a bad decision. This was a reminder that the focus should be on a person’s ability to make the decision, not on the outcome of that decision. This founding tenet of the MCA comes from a desire to preserve the autonomy of the individual (which should be upheld regardless of any potentially catastrophic consequences if it is made by a capacitous adult), and as such the test of capacity should not be set too high.
No doubt PB seriously overestimated his ability to keep his alcohol dependency under control, but his analysis of his dependency on alcohol was both articulate and rational, and although there was a huge gap between his aspiration to be a moderate drinker and the likely reality of this happening, that did not take away from the rational thought process that had underpinned his reasoning. Not every addict who is in some degree of denial about their addiction can be viewed as incapacitous.
Hayden J went on to explain that the relevant question for determination was not whether PB had the capacity to make decisions, rather, it included “an evaluation of whether PB understands the impact on his residence of care arrangements of his continuing to drink, potentially to excess.” (paragraph 41 of the judgment). And, as long as PB understood this (i.e. that he could potentially be made homeless and die), then he understood the relevant information. Finally, the test for making a particular decision only requires a person to weigh the relevant information, it does not require that a certain weight be given to any one of the pieces of information. The weight that is attributed to one piece or another is a matter for the decision maker themselves, and will inevitably be informed by their own personal values, outlook, beliefs, and might of course be objectively unwise.
Hayden J considered that the consultant psychiatrist had in this case, with understandable professional concern, no doubt recoiled from PB’s unwise decision (a decision that may lead to his death), but again the judge reminded us that PB is entitled to make a bad decision, and the consequences of that decision should not impact the consideration of whether he was able to make the decision in the first place. Hayden J concluded, “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.” (paragraph 51). In other words, misguided paternalism has no place in the Court of Protection.