Wandsworth Clinical Commissioning Group v IA (By the Official Solicitor As His Litigation Friend) [2014] EWCOP 990

Case No 12104512
COURT OF PROTECTION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 3 April 2014
Before
MR JUSTICE COBB
Between
Wandsworth Clinical Commissioning GroupApplicantIARespondentTARespondent
Miss Nicola Greaney (instructed by WCCG) for ApplicantMiss Katie Scott (instructed by Irwin Mitchell for Official Solicitor) for the First Respondent, IATA in person for in personHearing Hearing dates: 13 and 14 March 2014
JudgmentMR JUSTICE COBBThis judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the incapacitated person and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.The Honourable Mr Justice Cobb :Introduction and Summary
[1]IA was born in 1954, and is now 59 years old. He suffers from Type 2 diabetes mellitus, is partially blind (due to diabetic retinopathy) and has limited mobility. He has a serious kidney disease for which he requires regular dialysis, and suffers from anaemia. He has chronic leg ulcers, cellulitis, and neuropathy in his feet as a result of his diabetes; he is constantly at risk of severe infection.[2]In June 2007, he was the subject of a violent criminal assault, being repeatedly kicked to the head; he sustained a serious head injury, involving skull fractures, brain haemorrhage and contusions to the right frontal area of the brain. As a result he suffered a degree of cognitive impairment for which he was treated at a specialist rehabilitation centre. The injury was said to have left IA with problems of memory, inflexibility of thought, impulsivity, and mood control. He has exhibited deficits in executive functioning with reduced capacity to organise, judge and show control over decision-making.[3]IA is currently at one of London’s major teaching Hospitals (“the Hospital”), where he has been an in-patient since November 2013. He was admitted as an emergency following an episode of diabetes-related hypoglycaemia. IA is now ready for discharge from hospital, and decisions are required as to his future care. Critically, the court needs to determine whether IA has capacity to make or contribute to the relevant decisions.[4]Specific issue has arisen as to whether IA is able to make decisions about his: i) ongoing medical treatment; ii) future residence and care; and iii) management of his property and affairs.[5]These issues arise within long-standing proceedings commenced in 2012 by the London Borough of Wandsworth. At the time of the inception of proceedings, the authority was concerned about IA’s interim accommodation and care needs; consideration was then being given to placing him in residential care. Directions for the final hearing of the application were given as long ago as 15 July 2013. Unfortunately, the final hearing was delayed and complicated by the sudden deterioration of IA’s health in November 2013 (see §3 above). In December 2013, Wandsworth Clinical Commissioning Group (‘WCCG’) took over as Applicant in these proceedings following an assessment that IA is eligible for continuing Healthcare Funding.[6]The determination of capacity in this case has rightly in my judgment been described by both counsel as particularly difficult and finely balanced. The WCCG invites me to conclude that the assumption of capacity (section 1(2) MCA 2005) is not displaced in this case in respect of any of the issues identified in §4 above. The Official Solicitor, on the other hand, invites me to conclude that: i) in relation to arrangements for IA’s future residence and care (§4(ii) above), the assumption of capacity is (on the balance of probabilities) displaced, and seeks a finding that IA lacks capacity in that regard, but ii) in other aspects (including those issues identified at §4(i) and (iii)), the assumption is not displaced, and that IA has capacity in these areas.[7]TA (who is IA’s brother) invites me to conclude that IA has capacity in all domains, and invites me to declare as such.[8]The case illustrates the difficulties in assessing capacity where: i) The cognitive difficulties of the subject (IA) are multi-factorial; ii) There is evidence that the subject displayed strong and challenging pre-morbid personality traits; these traits are likely to have interfered to some degree with the subject (IA)’s willingness to be assessed as to capacity, and the assessments themselves. His direct communications with professionals, with his lawyers and indeed directly with the court in recent months reveal a profound mistrust of authority, some (but not all) professionals, volatility, and occasional unwillingness to co-operate. He can be difficult, mischievous and capricious, while also humorous and amiable. iii) There is no doubt (indeed it is agreed) that IA plainly has capacity in relation to decision-making in some domains of his life. His capacity in other respects is not so clearly ascertainable. As capacity must be issue specific, I do not view his capacity to determine some aspects of his life as determinant of his ability to reach decisions in relation to others.[9]At all earlier stages in the proceedings (from February 2012), interim declarations have been made, on the evidence then filed, that IA lacked capacity in key domains, including litigation, treatment, and the ability to make decisions about where he should live.

This hearing

[10]At this hearing, the WCCG has been represented by counsel, as has IA by his litigation friend, the Official Solicitor. IA’s brother, TA, has appeared in person. All have provided considerable assistance to the court.[11]I have considered key documents (statements, reports and medical notes spanning many years) within the three lever arch files of documents filed within these proceedings.[12]I also received a letter addressed to me directly from IA himself (see §22-28 below).[13]I heard oral evidence from Dr. Anjum Bashir, MBBS MCPS(Psych), FRCPsych, Consultant Neuro-Psychiatrist. He is a Consultant of some 17 years standing at the National Brain Injury Centre at St Andrews Health Care, Northampton and Basildon; he is an honorary senior lecturer at University College London.

Background

[14]IA is from a large family; he has a particularly close relationship with his older brother TA (a solicitor) and sister-in-law AQ, who are said to have been most supportive of him over the years. His family have all been relatively high-achievers. IA was well educated, obtaining good grades at O and A level and having read physics at university. He has at least an average IQ, which it is said has been preserved in tact since the 2007 injury. He slightly lost his professional way in adult life, though for many years he ran a business in South West London.[15]IA was diagnosed with diabetes in about 2002 or 2003. Even in the years before the acquired brain injury it is, notably, reported that he failed to comply with his insulin therapy.[16]As a result of the brain injury, he is no longer able to run his business. He tells me that he now has a firm intention to devote his time to writing a recipe book and having it published; he has (he reports) two interested publishers (“but I am hoping for higher offers and a three book deal”). He says that he does not see himself making it:
“…as big in food recipes as Nigella or Jamie Oliver, but I can still make good money from recipe books without being as famous as them. I am a good cook and I know my food.”
[17]For many years he owned his own home in South West London (“the property”). In 2007 (prior to the acquired brain injury) the property was subject of a Compulsory Purchase Order, as a consequence of its dilapidated and unhygienic state and general disrepair, a course which IA opposed, and an outcome against which he has subsequently appealed. This has almost certainly soured his relationship with the London Borough of Wandsworth (no longer in fact directly involved in the provision of his care), and I believe continues adversely to affect his ability to work co-operatively with social workers allocated to provide adult care services to him.[18]Upon being moved from his home, the London Borough of Wandsworth endeavoured to provide suitable accommodation for him; possibly (at least to some extent) because of his grievance at being displaced by the Council, IA has been consistently resistant to residing in accommodation provided by the London Borough of Wandsworth. He would only accept hotel accommodation, therefore between December 2012 and November 2013 he has been resident in various hotels.[19]Regrettably, IA had to move hotel altogether ten times between January 2013 and November 2013; it appears that these moves (or most of them) were caused because the hotel had served notice on IA that he was keeping his room in an unacceptably poor state. Social services received complaints that IA’s room were dirty and smelly (to the extent that this permeated other areas of the hotels); there was, it was said, evidence of urine and faeces on the carpets and the beds, blood splatters were found around the rooms. IA himself disputes much of this evidence (by his letter of 12 July 2013 he made some minor admissions - “being blind just means that I can’t see the mess I make to get it cleaned up” – but his letter 10 March 2014 makes clear that he does not accept the worst allegations). I have not heard direct evidence about this, and make no findings. Whatever the reason for his many moves, it appears that prior to his current admission to hospital, IA had a somewhat itinerant year. This cannot have assisted in achieving continuity of medical or other care (a view expressly confirmed by his GP) – a problem compounded by the fact that he would accept only a small fraction (15 hours) of the 56 hours of care to which he was entitled.[20]On admission to the Hospital at the beginning on November 2013 it was apparent that IA’s level of compliance with personal care had been extremely poor. Even in hospital initially, it is said that he was unable to prevent himself from soiling his bed sheets and then refused assistance to get out of bed to allow the sheets to be changed. He would sometimes agree to allow nurses to wipe the bed sheets after he had heavily soiled himself. IA disputes much of this.[21]Fortunately, IA’s situation has in some respects now improved; IA has in recent weeks apparently become more compliant with his medication and treatment. On the whole, he has been receptive to the care offered, his self-care has improved, and consequently his level of physical well-being has improved. The picture is not uniformly positive; Professor Oliveira, Professor of Renal Medicine, responsible for his care, has commented that: i) IA has fluctuating compliance with personal care, care of leg ulcers and medication (influenced by his personal opinion of the staff member providing treatments and his mood at the time). ii) He is not compliant with fluid restrictions advised by doctors (he periodically exceeds the permitted intake of liquids, namely 750mls per day). iii) His acceptance of diabetic and blood pressure medications, and compliance with medical treatments generally, fluctuates with mood. However, iv) During this admission, IA has always accepted dialysis when offered and has complained to staff when it was not provided at the “usual” time; his reasoning is that otherwise it interferes with his routine and plans. v) He has appeared to be able to retain, process and weigh information regarding his medical condition and treatment and the potential consequences of non-compliance. This information was retained on further assessment on the following day.

IA’s views

[22]IA has made known his own views clearly to Irwin Mitchell, solicitors appointed by the Official Solicitor to act on behalf of IA, and to others. In some respects, these views (particularly in relation to his future residence and care) have contradicted those which he has expressed to Dr. Bashir and others (see below).[23]He has also been a regular correspondent with the court over the two or more years of this litigation. I have read his earlier letters to my predecessor judges. For this hearing he has sent (via his brother) an 8-page typed letter for me (dated 10 March 2014), setting out his views on a range of issues relevant to the dispute before me; in the letter, he also discusses a number of other interesting topics including news items and current affairs of concern to him. He writes of his enjoyment of listening to the radio and CDs, and watching cookery programmes on the television (though he is quite opinionated about the poor quality of some of the contestants, and indeed the host chefs).[24]He regards himself as a “lucky man” to have survived his head injury (“I know miracles happen because I got one”). He says that he regards his glass as “half full”. Although he lists the activities he is no longer able to enjoy “there are plenty of things that I can still do.”[25]In relation to medical treatment, he is clear in his letter that he knows that he is diabetic, and he has “to take my insulin and other medicines every day. I have kidney failure and need to have dialysis three times a week…”.[26]In relation to his property and financial affairs, he reports that “when I visit the bank, I make my withdrawals and count my money better than even than the note counting machine does”. He is clear that he wants to use the compensation from the Compulsory Purchase Order to by a “new place to live in Wandsworth with my carers”, adding that he wants it to be “in my GP area”.[27]In relation to his future care, he tells me that he wants nothing to do with WCCG, and wants nothing from them. He adds “I don’t want to live in a nursing home and I have always told everyone this – my family, my doctors, my lawyer and all my friends…I never want to set foot in one in my life.” He complains about social workers visiting him in hospital, describing their visits as ‘harassment’. It is these views expressed in this letter (and other views in a similar vein) which cause the Official Solicitor to contend that IA does not have the ability to ‘retain’ the information, or more specifically ‘weigh up’ the options for the future in a way which demonstrates that he has capacity.[28]His letter concludes:
“I don’t know if you will believe anything that I have written to you. But I hope you will read all my letter before you make up your mind about me. Thank you for reading what I have got to say.”

Care plan

[29]WCCG has filed a detailed care plan setting out its proposals for IA’s post-discharge care. If IA has capacity to make decisions about this plan, it is proposed that this will be delivered for him under the authority’s ordinary statutory duties (IA has been assessed as eligible for NHS continuing healthcare in part due to his non-compliance with care interventions and challenging behaviour). In the event that IA is found not to have capacity to make decisions about his future care, this plan is urged upon me as representing his ‘best interests’ (within a determination under section 4 MCA 2005).[30]Essential aspects of the plan address issues of mobility, nutrition, personal care, incontinence, wound care and medication. WCCG is able to facilitate a move into the community at the appropriate time using the services of independent agency: i) This could be done on an interim basis at one of a number of identified residential homes, until IA finds his own private accommodation (IA’s clear preference); ii) There would need to be assessment of IA by a care agency (IA has been reluctant to co-operate with this up to now); iii) WCCG has responsibility to fund the care package in the community but not the costs of the accommodation itself. The accommodation would have to be funded by housing benefit or by private funds. This needs to be sorted out (IA has access to funds from the CPO, which have not yet been released to him pending this decision); iv) The social worker has attempted to complete the relevant social housing forms to assist IA. IA has previously refused to talk to the social worker. On 12 February 2014, TA advised the social worker that IA would only accept a private rental property and would not make an application for social housing.[31]His care plan further prescribes: i) Skilled monitoring of fluid intake and output; ii) Regular attendance at the Hospital for dialysis 3 times per week; iii) Skilled wound care management for his leg ulcers and frequent monitoring and change of dressings; iv) Blood glucose monitoring (essential); v) 24-hour nursing care with supervision because he refuses care interventions.[32]On 5 March, shortly before this hearing, the CCG Continuing Care Nurse Assessor met with IA and TA and was able to make progress with advancing this plan. IA signed the social housing application form and agreed to go to a nursing home as an interim placement while accommodation in the community is identified. The forms are now with the housing agency which is processing them. Even though social housing is not IA’s preference this was something of a break-through. WCCG has agreed to look for some other care homes because two of those identified were not close enough to IA’s GP.

Capacity

[33]In three areas I have been invited to consider IA’s capacity (see §4 above).[34]In making my determination, I of course start with the statutory assumption that IA has capacity to make decisions with regard to the relevant issues; only if it is established that he lacks capacity (see section 1(2) MCA 2005) can the court possibly intervene. This essential statutory test is buttressed by the neighbouring provisions of section 1; in this respect, I have paid particular regard to: i) Section 1(3), taking account of the fact that a person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success; and ii) Section 1(4), a person is not to be treated as unable to make a decision merely because he makes an unwise decision. As the Code of Practice 2008 makes clear, this is a very important principle of autonomy recognising the right of a person to make his own choices. Just because a decision is unwise does not mean that the person has lost mental capacity.[35]Lack of capacity may be demonstrated by reference to the two-stage ‘functionality’ (“unable to make a decision for himself in relation to the matter”) and ‘diagnostic’ (“because of an impairment of, or a disturbance in the functioning of, the mind or brain”) test of section 2 of the MCA 2005. I bear much in mind that the fact that IA has suffered head injury does not of itself establish lack of capacity, that his impairment can be permanent or temporary (section 2(2)), and that the issue of lack of capacity is to be decided on the balance of probabilities (section 2(4)).[36]In making the assessment of capacity, I have applied the provisions of section 3 MCA 2005, notably the fourfold ‘functionality’ test which focuses on IA’s: i) Ability to understand the information relevant to the decision; ii) Ability to retain that information; iii) Ability to use or weigh that information as part of the process of making the decision, and iv) Ability to communicate his decision.[37]I accept that the threshold in relation to capacity to understand should not be set unduly high. As Baker J remarked in PH and A Local Authority v Z Limited & R [2011] EWHC 1704 (Fam) at paragraph 16 (xi):
“[the] courts must guard against imposing too high a test of capacity to decide issues such as residence because to do so would run the risk of discriminating against persons suffering from a mental disability.”
[38]The approach of Macur J in LBJ v RYJ [2010] EWHC 2664 (Fam) as adopted by Baker J in CC v KK & STCC [2012] EWHC 2136 (COP) provides that it is: “not necessary for a person to demonstrate a capacity to understand and weigh up every detail of the respective options, but merely the salient factors” (paragraph 69).[39]I have then gone on (following the Court of Appeal’s clear guidance in PC & NC v City Of York [2013] EWCA Civ 478 at [58]) to consider the ‘diagnostic’ test, namely to consider whether any inability of IA to make a decision is because of an impairment of or disturbance in the functioning of his mind or brain.[40]In the event that I find that IA lacks capacity in any of the specified areas, then I will need to go on to consider whether to make interim decisions in his best interests under section 4.[41]Were I to find that the assumption of capacity has not been displaced that will bring these proceedings to an end.

The evidence on capacity

[42]I have reviewed medical opinion on the issue of IA’s capacity. This issue has been repetitively assessed over the course of the last 2½ years by a number of experts.[43]Some of those experts whose opinions are contained in the papers have expressed a view about IA’s capacity without the benefit of meeting with IA; this has generally been, it seems, because IA has chosen not to co-operate with appointments, or assessments. Those who have undertaken only ‘paper’ assessments have undoubtedly been seriously hampered in their ability to advise confidently: “assessment of capacity based on case notes is of necessity a relatively inadequate substitution for the complex assessments that occurs in a clinical interview” (Dr. Janet Grace, Consultant Neuro-Psychiatrist). Moreover, it is also more likely to be the case that clinical notes will contain an intrinsic bias – a concern about a patient is more likely to be recorded than a lack of concern.[44]Notwithstanding the limitations imposed on some of the clinicians by the lack of access to this patient, it is nonetheless the case that a strong body of professional opinion has built up over the years establishing the view that IA did indeed lack capacity to make decisions in a number of key areas of his life. Dr. Nicholas Stokes, Consultant Clinical Psychologist (one of those who did meet IA) advised in September 2011 (specifically in relation to IA’s opposition to or appeal against the compulsory purchase order) that he had deficits in his executive functioning ability, specifically: i) IA lacked capacity to make a decision about residence at his home because he was not able to understand or weigh up information about the property. He further lacked capacity in relation to residence generally if he was required to make a judgment about the habitability of the housing or if he had a particular emotional investment in choosing one option over another; ii) He had capacity to make every day financial decisions although a further assessment would be required if his finances became more complicated; iii) IA had capacity to make decisions about the composition of the care package but not about the delivery of the care package. This was due to his poor insight into the state of his housing and the importance of this issue to the delivery of his care package; iv) He lacked capacity to litigate the proceedings concerning the Compulsory Purchase Order.[45]In the following year (December 2012), when advising on whether IA had capacity to pursue his claim to the Criminal Injuries Compensation Authority (‘CICA’), Dr. Grace, Consultant Psychiatrist (without seeing IA) opined that IA suffered from poor insight into his health problems and a tendency to minimise problems; he was said to respond in a flattened manner to them (anosagnosia and anosodiaphoria); this was consistent with a right sided brain injury. She noted that his IQ was in the average range but with a pattern of executive dysfunction. She concluded that IA lacked capacity to conduct litigation in relation to the CICA claim (report 10 December 2012).[46]She noted significantly that that prior to the brain injury there was a history of: i) non-compliance with insulin therapy; ii) allowing his home conditions to deteriorate to an extremely poor state of dilapidation; iii) making unusual choices.[47]She felt that that the injuries from the acquired brain injury are usually static, but impairment due to poor diabetic control is likely to deteriorate over time. Renal damage, vascular damage and peripheral neuropathy, with biomechanical evidence of poor blood sugar control, have all combined in IA to indicate poor diabetic control; this can itself impact on cognitive function. She concluded that there were likely to be times when IA would be unable to weigh up the advantages and disadvantages of medical treatment and will lack capacity to make decisions about physical health issues and care related to that.[48]Dr. Grace noted that IA appears to have a fluctuating level of cognition, a view shared by Dr Shrivastava, IA’s treating consultant nephrologist at the Hospital, (who assessed IA in July 2013). Dr Grace said that she had seen no evidence to challenge Dr Stokes’ view on capacity to litigate and to make decisions in relation to finances (see §44(ii) above).[49]At or about the same time (December 2012), the social worker (having seen IA) concluded that IA did have the capacity to sign his own tenancy agreement and manage his own tenancy.[50]IA’s general practitioner who carried out Mini Mental State Examinations on IA (a tool used by clinicians, neuropsychologists, and GPs to help diagnose dementia) both before and after this time, in April 2012 and in 22 August 2013, both record a score of 28 (essentially normal).[51]In January 2014, Dr. Marcus Hughes, Consultant Psychiatrist, endeavoured to make an assessment of IA. This proved impossible when IA refused to engage with him; IA was upset by opinions or comments expressed by Dr. Hughes in an earlier report (demonstrating well, it seems to me, IA’s ability to retain information). Dr Hughes concluded (10 January 2014) that IA has:
“some significant challenging personality traits, including inflexibility and emotional instability, which manifests as brief outbursts of rage when he is faced with a situation in which he feels vulnerable. These personality traits would present a significant challenge in providing one-to-one care. Carers are likely to be met with refusal to allow some care at times, although [IA] does appear able to identify when essential care is needed and to allow that. Carers are likely to be exposed to outbursts of verbal hostility at times, which will be difficult for a lone carer to cope with.”
He has added in a follow-up report (24 January 2014) that: 52. IA “has a longstanding tendency to minimise his cognitive and emotional problems, which is reflected in the projection of optimism found in Dr Bashir’s report. This prevents him from weighing up information about his needs and constitutes an impairment of capacity, when the daily care that IA needs is as finely balanced as highlighted in the [earlier] report.”

He has added in a follow-up report (24 January 2014) that:

[52]The evidence recited in the paragraphs above illustrate well the complex, and perhaps fluctuating, presentation of IA’s capacity over the previous 2½ years. Given that discrepancy of professional opinion, it was sensibly agreed, at court on 15 July 2013, that the parties be given permission jointly to instruct a further consultant neuro-psychiatrist to obtain a report on IA’s capacity to make the relevant decisions. There was a problem in actioning this instruction (IA did agree in principle to meet with a consultant psychiatrist, however of the fifteen experts suggested, only two were acceptable to IA; those two could not report in the prescribed time).At a subsequent hearing on 11 November 2013, TA agreed to identify two experts who would be acceptable to him, to assess IA’s capacity. This led to the joint instruction of Dr Anjum Bashir, Consultant Neuro-Psychiatrist, whose written evidence has been before the Court and tested orally at this hearing. Notably, IA has cooperated fully with Dr Bashir’s assessment.[53]Dr. Bashir’s principal report is dated 5 December 2013; in that report he concludes that IA has an “intact comprehension of the matters being assessed”, “can retain the information given about each matter, … can use the information given plus his own view and past knowledge to consider the pros and cons of different choices and can express his decisions in a good enough manner”. Specifically he advised that IA has capacity in the relevant domains of his life, specifically: i) To make decisions about this litigation; ii) To litigate in proceedings concerning the damages claim arising from the compulsory purchase of his home; iii) To make decisions about his accommodation in the long and short term; iv) To make decisions regarding his care; v) To make decisions regarding medical treatment; vi) To make decisions regarding his property and finances and to manage a large damages award.[54]At the time of preparing that report, Dr. Bashir had not had access to IA’s extensive medical records; moreover, although he had had some limited discussions with IA’s treating clinicians, he had not received full accounts of IA’s record of compliance with his treatment regime, nor had he discussed with IA the risks of refusing treatment and not engaging with care and his ability to consider and weigh these issues in the balance in making decisions. When, with the benefit of that report, I was invited to give pre-trial directions in this case (14 January 2014), I was advised by the Applicant and the Official Solicitor that they were concerned that Dr. Bashir may therefore have acquired an artificially benign view of IA’s capacity, on the basis of the limited discussions with IA himself. I therefore gave directions for the parties to send written questions to Dr. Bashir to probe his opinion further, inviting him to make further enquiries.[55]A Supplementary Report followed in January 2014. In that report he confirmed his original opinion. Specifically, he reported that IA “was able to and talked about the risks to his health … associated with refusal to treatment and lack of good care. He seemed to be benefitting from the information he had received from his doctors and care staff and was taking it on board.”[56]Dr. Bashir opined that assessments which had concluded that IA lacked mental capacity in the past had been due not to the cognitive impairments consequent upon his brain injury but due to transient cognitive dysfunction due to metabolic reasons as a result of his physical illness.[57]Further to the Supplementary Report, Dr. Bashir had further discussions with the consultant nephrologist, Dr. Shrivastava. In light of his discussions, Dr. Bashir once again confirmed his opinion.[58]On 4 February, Dr. Bashir and Dr. Daniel Jones (Consultant in Renal Medicine representing the team of clinicians on the ward at the Hospital) met, and following discussions prepared a joint statement. Professor Oliveira and Dr Hughes have seen the statement and have confirmed their agreement with the statement. This confirms that: a) IA is medically fit to be discharged from hospital and this should happen as soon as possible; b) IA is consenting to treatments; the treatments are being carried out with his consent; he does have capacity to give or withhold consent to treatment; c) IA understands the information regarding his treatment, their indications, side effects and harm he could suffer if not adhered to. d) IA can retain and process this information (i.e. regarding his treatment, their indications, side effects and harm he could suffer if not adhered to). He can express a view about them to doctors. He can recall his discussion with doctors and give his opinion even a day or so later. He is considered to have mental capacity to consent to his treatment and he is being treated at the Hospital with his consent. e) IA has not co-operated for an assessment of mental capacity for other issues such a property and affairs and future care with the treating clinicians at the Hospital. (These other issues are not a concern for treating clinicians). f) IA can be a “difficult man, prone to distancing himself from clinicians whom he mistrusts and can show periods of reduced motivation for his care”. g) For the past months and weeks IA has been mainly compliant with his treatment and care and has made significant improvement in his medical condition.[59]On 5 February Dr. Bashir sent a further report. By that stage he had had extensive discussions with Dr. Jones (see above), Dr. Patel (GP) spoken with the social worker, and had taken into account the views of Dr. Oliveira. He had also seen IA again.[60]He opined as follows: a) He has no reason to change his views on IA’s capacity as expressed in his first report; b) IA is consenting to medical treatment, and has recently consented to an operation to create a fistula for regular dialysis on the future; c) IA should be moved to a community placement as soon as possible. He notes that IA is occupying a much needed bed in a busy ward; d) WCCG is willing to provide care and support in the community; e) IA has suffered from a severe brain injury but seems to have made a reasonable cognitive recovery. There is some evidence of impulsive (ill-advised) comments to others and impulsive drinking of fluids against advice but has “reassured that he would make a concerted effort to work with his carers and nursing staff in this respect”. IA does lose his temper, develops mistrust and can show mood swings. “While this presentation does not incapacitate him to make decisions about his care and future, regard needs to be given in his care regime to recognise his impairments and support him accordingly”; f) The CCG should appoint carers who have experience of working with clients of brain injury or support his care team with appropriate training so that his care in the community is well managed; g) There should be neuropsychiatric input into his care plan. h) IA’s life expectancy is reduced and he understands this. He is keen to go on the waiting list for renal transplant and is now motivated to co-operate in order to achieve this.[61]Medical notes reveal that on 26 February 2014, Dr. Jones discussed with IA and TA the possibility of IA moving to a nursing home; the note records:
“patient happy to accept what brother says. We have spoken positively about a nursing home as an interim solution to longer term community care…”
. This accords with Dr. Bashir’s oral evidence before me: “I was quite impressed by his ability to consider each options. For a short time he would accept a sensible package away from hospital”.[62]When called to give evidence before the Court, Dr. Bashir confirmed that he remained of the same view as he had expressed them in his original report. He told me that IA had indeed suffered a serious brain injury in the 2007 assault, but did not accept that this is necessarily a static condition. He told me that he has direct experience of victims of such assaults improving in their decision-making capacity over a period of time.[63]He indicated in terms (when cross-examined by Ms Scott) that IA is able to make a fully capacitous decision about choice of his future accommodation. He nonetheless emphasised the importance of a fully effective plan: he indicated that if IA was left on his own to do everything himself, he would be at risk of neglect. That is why he needs a carefully constructed care regime. Dr. Bashir confirmed that IA knows what his needs are (“I asked him to specify his needs, and he did so. He does exhibit an understanding of his impairments”).[64]As indicated above, WCCG and TA argued that the evidence currently before the court, in particular the expert evidence of Dr. Bashir, should not lead me to conclude that IA lacked capacity in respect of any of the three issues for my determination (§4).[65]The Official Solicitor, who reserved his opinion until the conclusion of the hearing, ultimately invited me to conclude that, on the balance of probabilities, IA lacked capacity to make decisions about his future care. Ms Scott contended that while IA appeared to have been able to understand and weigh up the issues relevant to his future care with Dr. Bashir, reaching an apparently reasoned conclusion, he had not (so it was argued) consistently maintained that reasoned position subsequently indicating a lack of insight and deficit in his executive functioning.

Conclusion on capacity

[66]Summary: On the evidence reviewed above, and for the reasons fully set out below, I find that the assumption of capacity (section 1(2) MCA 2005) has not been displaced in respect of any of the three issues on which I am invited to adjudicate (§4(i)-(iii) above).[67]I am of the view that IA does have the capacity to make decisions about his medical treatment, future residential care, and property and financial affairs, and I shall so declare.[68]It seems to me that it has been of considerable benefit to IA that practical steps have been taken (including careful explanation by a trusted professional, Dr. Bashir) to assist him to reach these decisions, weighing up the information relevant to that decision; I trust that such assistance will be available to him in the future.[69]Although I am of the view that IA has made a number of unwise decisions in the past about his medical treatment and home living conditions, these i) are not demonstrative of lack of capacity; ii) are more reflective of his somewhat challenging personality; and iii) in some respects in any event ante-date his acute brain injury and could not therefore be attributable to acquired cognitive deficit (see §46 above). Moreover, there is reason to believe that his resistance to social work intervention is probably founded in a long-standing grievance about the compulsory purchase of his home, exacerbated by his suspicions about the plans of the authority for his future care.[70]There is a risk that he will make further unwise decisions in the future – hence the importance of effective support for him in the community, and a closely monitored care plan.[71]Discussion: Dr Bashir expresses a confident view about IA’s capacity to make decisions in relation to the particular issues before the Court (see inter alia my summary §53, §58, §60 and §63). I was impressed with the care which he had brought to his investigation, and (by the time that his final evidence was filed) the thoroughness of his research among the treating clinicians and review of the medical notes. I felt that he had understood IA well; he had been allowed to discuss matters with him calmly and rationally.[72]Medical assessment of IA (both as to capacity and other matters) and treatment of IA has been complicated by the fact that he can be (as described by the various experts) challenging, assertive, impulsive, articulate, proud, disinhibited, determined to get his own way, capricious, argumentative, and outspoken. He is elsewhere described as having been “a somewhat eccentric individual” with “an unusual personality … he may have had personality variables that impeded his social integration and professional career”.[73]Dr. Bashir thought that he was “prone to making sweeping statements which he did not really mean” – Dr. Bashir illustrates this by recounting how he asked IA whether he needed care in the future, and IA had said ‘no’. When pressed on this, IA made clear that he realised that he did of course need care, but he did not want it to be felt that he was “too disabled to do anything at all”, and then “readily agreed to what will be a sensible package of care for him”.[74]It appears that IA takes a strong disliking to some people, yet will be wholly co-operative and amiable with others. Dr. Stokes reported that he “displayed a good sense of humour”, and Dr. Bashir referred to IA as “quite cheeky” with a “sense of humour as well”. As an intelligent man, he has demonstrated an ability to argue his point, and would (I was told by his brother) tend to convince people of his arguments.[75]I am conscious to guard against interpreting difficult and inconsistent behaviours (described in §72-75 above) as necessarily illustrative of a lack of capacity. Although IA can be very difficult at times, it is not right to infer that his resistance to, or simply lack of, compliance with care or treatment arises from an inability to understand, retain or use or weigh information. As Dr. Grace makes clear in her February 2013 report, “it is important not to consider IA’s non-concordance as arising solely from his Acute Brain Injury. The pattern of non-concordance was established prior to the injury in 2007”.[76]I am equally conscious that some of his decision making historically has undoubtedly been unwise, particularly in relation to his acceptance (or lack of acceptance) of necessary care and treatment. I also bear in mind that he is keen to leave hospital, and frustrated by the lack of progress in these proceedings; he probably feels a degree of helplessness at not being able to play a more active part in the proceedings. I believe that some of his more angry outbursts, and his dogmatic pronouncements about the future recently have been provoked by his frustration at his current situation.[77]With regard to IA’s “understanding” (section 3(1)(a)) of the issues on which his capacity is being judged, it is apparent from Dr. Bashir’s evidence that IA understands: i) that he has a range of serious medical conditions. Dr. Shrivastava opines that “IA understands that he has kidney disease…”. Although she thought he has a “fluctuating” attitude to dialysis, Dr. Bashir felt that IA acknowledged his health problems, and was able to describe his disabilities and needs for treatment accurately and fully. IA told me (§25) that he knew he has to take his insulin and other medicines daily; he acknowledged his kidney failure and need to have dialysis three times a week; ii) the options for his future care; iii) the financing of his future accommodation needs, and his entitlement to compensation following the compulsory purchase order.[78]With regard to §77(ii) above, as Baker J cautioned in PH and A Local Authority v Z Limited & R (see above), I guard against imposing too high a test of capacity to decide issues such as residence, and bear in mind that, necessarily, the plans for IA’s future care are somewhat indefinite in any event.[79]It is clear that IA has been able to “retain” (section 3(1)(b)) information relevant to the decisions which are in issue; indeed, he appears to have a good power of retention of information as was evident by his resistance to seeing Dr. Hughes in January (recalling his comments from an earlier report). Dr. Bashir and Dr. Jones were of the view (§58(d)) that IA is able to retain information about his medical treatment, and it is clear from IA’s communications with me and others, that he has been able to retain information about his financial affairs (returning, in his correspondence over the years, to discussing this issue in an informed way).[80]I do not regard evidence about IA’s lack of co-operation with medical care and treatment in the community in the past as evidence of an inability to retain information (or ‘weigh up’ that information – see below) about his needs; I suspect that his attitude was at least in part due to the instability of his home circumstances. I believe that his variable compliance with advice in hospital about restricting his fluid intake is also not evidence of a lack of retention of information (or ‘weighing up’ that information – see below); this is more likely due to him not realising how much he had drunk on a warm ward (as he told Dr. Bashir) or possibly ‘seeing if he could get away with’ drinking more than he should, in either event being enabled to do so by staff on duty. Nor do I view his inconsistency of view about his future care as evidence of lack of ‘retention’ of information; this has more to do with his frustrations at his current situation, and his occasional firing off views in sweeping statements without considering the impact on his audience (of which Dr. Bashir had experience –see §73 above).[81]The most controversial of the functionality indices is the evidence surrounding IA’s ability to “use or weigh” the information as part of the decision making process (section 3(1)(c)). It is in relation to this aspect that IA has shown the lowest level of ability – allowing his emotions and personal prejudices to interfere with dispassionate and objective evaluation of the issues. Dr. Hughes expressed himself of the view that this was the key potential deficit in IA’s assertion of capacity. He felt that IA lacked insight into his cognitive and emotional problems; combined with his suspiciousness of the motives of others this constituted (in his view) an inability to weigh some care decisions in the balance.[82]There is no doubt that in weighing the information properly, IA has to consider what the implications are for him if he does not comply. Section 3(4) of the MCA 2005 provides that the information relevant to a decision includes information about the reasonably foreseeable consequences of deciding one way or another, or failing to make the decision. In respect of his care regime, the stakes are high. IA faces an extremely serious threat to his long-term well-being, indeed his life, if he does not in the future comply with some aspects of his medical treatment and some aspects of his personal care: for instance i) If he does not comply with dialysis he will die within one to four weeks (or much sooner if he does not stick to fluid restrictions). He requires 3 sessions of dialysis a week, each lasting 4 hours. ii) If he does not comply with the fluid restrictions he will once again develop pulmonary oedema which is a potentially life-threatening condition. iii) If he does not comply with treatment for his leg ulcers or care properly for his dialysis line, he risks infection. This could range from a mild infection to severe and life threatening sepsis. iv) If he does not comply with treatments for blood pressure or his diabetes he is at risk of a stroke or a heart attack (the risk being higher for those with poor diabetic and blood pressure control). He could die from such complications today, or survive several years.[83]In this respect, Dr. Bashir offered the view that IA is able to weigh up the information relevant to medical treatment, concluding that IA was:
“insightful in his medical conditions… he could inform me the harm he could suffer if he discontinued his treatment. He told me that he was at risk of forgetting and thus needed a carer who could assist him.”
[84]While maintaining a dogged determination to live in his own home, and suspicious of efforts to place him elsewhere (which has caused him in the past to ‘sound off’ about the WCCG’s plans), in separate discussions with Dr. Bashir and Dr. Jones in recent weeks IA has been able to recognise the benefits of an interim placement in a residential home. I do not interpret his strongly worded pronouncements against this outcome from his hospital bed as reflecting an inability to weigh up the implications of his decision, rather it reflects frustration, underscored with a hefty degree of suspicion of authority. As Dr. Bashir told me “He has deep mistrust of the London Borough of Wandsworth, and he identifies WCCG as an extension of London Borough of Wandsworth. He slips back to that theme. He tends to make quite a lot of statements not always in his interests. If you talk to him of other options, he comes round. When challenged about the narrative, he comes round, and knows that they are the responsible authority…”[85]It is apparent that IA is capable of forming a good working relationship with professionals, which assists greatly in the management of his care and situation. The independent care agency invited by WCCG to prepare a personal support plan referred to the fact that:
“he needs trust from the carers to manage his behaviour. Once he trusts you, he will remain calm. This has worked while in hospital. IA needs emotional support and therefore, finding some activities of his choice and interest will improve his emotional status and enjoy his lifestyle.”
[86]He has of course also formed a good relationship with Dr. Bashir. It is evident from Dr. Bashir’s evidence that when “practicable steps” are taken to assist IA to make the decision, he is able to do so.[87]It follows from the above that I am satisfied that IA displays all the relevant attributes to satisfy the functionality test and, in my judgment, is able to make decisions in the key areas relevant to his imminent discharge from hospital.[88]This conclusion has been reached against a backdrop of conflicting and inconclusive assessments about the cause of IA’s impaired decision-making (the ‘diagnostic’ element). His capacity may be seen to have fluctuated in the past; this is in my judgment more likely to be attributable to transient cognitive dysfunction due to metabolic reasons as a result of his physical illness (see §56 [Bashir] and §47 [Grace] above) than the progression of symptoms of his acute brain injury.[89]Finally, it is important to note – relevant to both limbs of the test – that TA told Dr. Bashir that “his personality prior to brain injury was … not much different from now.”

The future: IA’s best interests:

[90]The WCCG has made considerable efforts to identify medium/long-term suitable care providers and accommodation for IA. It has also identified some available residential care home places available in the short term. IA needs 24 hour / 7 days per week nursing care and supervision.[91]Given my findings above on capacity, I am not required, in the circumstances, to make a declaration as to IA’s best interests. Had I done so, I would have been most likely to support WCCG’s plan for ultimate placement of IA in the community in his own home; I would have been likely to support an interim placement at a residential home if the placement in his own home could not be achieved swiftly (i.e. within a matter of a few weeks). This would be preferable (for many reasons) to IA spending many weeks ahead in hospital.[92]IA has expressed himself (vociferously at times) to be against any placement (for any length of time) in a residential home. I hope (in fact I believe) that IA will accept placement in a residential home for a short period; it will need to be presented to him as an interim measure only. Dr. Bashir (cross-examination Ms Scott) indicated that he “… was quite impressed by his [i.e. IA’s] ability to consider each options. For a short time, he would accept a sensible package away from hospital” And later (to Ms Greaney):
“his attitude was that he would accept it, although he is OK in hospital and would prefer not to…”
[93]In making such a decision, I would of course have had regard (section 4(6) and 4(7)) to IA’s wishes and feelings on this issue, his beliefs and values which would be likely to influence his decision if he had capacity, and the views of TA.

Conclusion

[94]Now that capacity issues have been resolved, IA can be involved in preparing his discharge from hospital. The funds available from the compulsory purchase of the property can in early course be released to him, and he can take steps to purchase or rent (in the private sector) a suitable home in his preferred area of south west London.[95]The plan for IA’s medical and other care will require very careful formulation and supervision. Appropriately trained care staff with experience of working with patients with brain injury will need to be engaged, with a proper level of expectation about IA’s personality. It would be of considerable assistance in my view if Dr. Bashir – a professional whom IA trusts and with whom he has co-operated well – can be directly involved in the transition plans for IA, so as to maximise the prospects that they will be accepted.[96]By this judgment, these proceedings will come to an end. This will doubtless be a relief to IA and his family.[97]However, it is vital going forward that IA receives the full support of WCCG and the health services. I make a plea directly to IA to accept their efforts. I further encourage TA and other members of IA’s family to support the endeavours of the WCCG, and – significantly – encourage IA to recognise their endeavours.[98]That is my judgment.

Cited in 1 later judgment