Wandsworth CCG v IA and TA [2014] EWHC 990 (COP)

IA suffered from a number of conditions, including Type 2 diabetes mellitus, partial blindness, limited mobility, serious kidney disease and anaemia.

He was later the subject of a violent criminal assault which left him with a serious head injury. As a result, he suffered from a degree of cognitive impairment for which he was treated at a specialist rehabilitation centre. The injury left IA with problems of memory, inflexibility of thought, impulsivity, and mood control. He has also exhibited deficits in executive functioning, with reduced capacity to organise, judge and show control over decision-making.

IA was later admitted to hospital (‘the Hospital’) as an emergency following an episode of diabetes-related hypoglycaemia.

These issues arose within long-standing proceedings commenced by the London Borough of Wandsworth. The authority had been 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. 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.

The Court needed to determine whether IA had capacity to make or contribute to decisions about his:

i.                     ongoing medical treatment;

ii.                    future residence and care; and

iii.                  management of his property and affairs.

Whilst Wandsworth Clinical Commissioning Group (‘WCCG’) believed that the presumption of capacity was not displaced in respect of any of the issues identified, the Office Solicitor believed that only in relation to the arrangements for IA’s future residence and care was the assumption of capacity was displaced. Alternatively, TA (IA’s brother) invited the Court to conclude that IA had capacity in all domains.

Background

Prior to the acquired brain injury, IA was diagnosed with diabetes, and even in the years before the accident it was reported that he had failed to comply with his insulin therapy. Previously, IA’s home was also the subject of a Compulsory Purchase Order because of its dilapidated and unhygienic state, which clearly soured his relationship with the London Borough of Wandsworth. It was believed that this adversely affect his ability to work co-operatively with social workers allocated to provide adult care services to him. After being moved from his home, IA repeatedly resisted attempts by the London Borough of Wandsworth to provide him with suitable accommodation, and instead only accepted hotel accommodation. However IA was forced to move hotel 10 times within an 8-month period after the hotels had served notice on IA that he was keeping his room in an unacceptably poor state. Due to the itinerant year that IA had lived, it militated against achieving continuity of medical or other care (a view expressly confirmed by his GP). This problem was compounded by the fact that he would only accept a small fraction of the 56 hours of care to which he was entitled.

On admission to the Hospital, it was clear that IA’s level of compliance with personal care was extremely poor, with him unable to prevent himself from soiling his bed sheets and then subsequently refusing assistance to get out of bed to change the sheets. Although on occasion he would agree to allow the nurses to wipe the bed sheets after he had heavily soiled himself, IA disputed both of these facts.

Later, IA’s situation improved and he became more compliant with his medication and treatment, more receptive to the care offered, his self-care had improved and his level of physical well-being had improved. Notwithstanding that, Professor Oliveira (Professor of Renal Medicine) commented that IA had fluctuating compliance with personal care, medical treatments, care of leg ulcers and medication, and was not compliant with fluid restrictions advised by doctors. However, Professor Oliveira nonetheless held that IA had always accepted dialysis and strictly complied with his dialysis schedule. She further stated that IA could retain, process and weigh information regarding his medical condition and treatment and the potential consequences of non-compliance.

i.                     IA’s views

IA was aware that he was a diabetic and needed to take his insulin and other medicines every day. Regarding property and financial affairs, he was also confident in his ability to control and manage his money, and he also held ambitions to use the compensation from the Compensation Purchase Order to buy a new place to live in Wandsworth with his carers and within his GP area. In relation to future care, IA informed the Court that he did not want anything to do with WCCG, and wanted nothing from them. He strongly declared that he had long held the view that he never wanted to live in a nursing home. Further, he complained about social workers visiting him in hospital, describing their visits as ‘harassments’. It was these views which caused the Official Solicitor to contend that IA lacked the ability to retain the information or weigh up future options in a way that demonstrated that the presumption of capacity was not displaced.

ii.                    Care plan

WCCG filed a detailed care plan that set out its proposals for IA’s post-discharge care. If IA was found to have capacity to make decisions about this plan, it was proposed that this would have been delivered for him under the NHS’s ordinary statutory duties in relation to CHC status. However, if IA was found to have capacity, this plan would have been urged upon the Court as representing his ‘best interests’ (within a determination under section 4 of the Mental Capacity Act 2005). Shortly before the immediate hearing, the WCCG’s ‘Continuing Care Nurse Assessor’ met with IA and TA and was able to make progress with advancing this plan, and IA signed the social housing application form and agreed to go to a nursing home as an interim placement while accommodation in the community was identified. Even though social housing was not IA’s preference, this was seen as a breakthrough.

iii.                  Capacity

Given the fluctuating presentation of IA’s capacity by various professionals, it was agreed that the parties should be given permission jointly to instruct a further Consultant Neuro-Psychiatrist to obtain a report on IA’s capacity. This led to the joint instruction of Dr Anjum Bashir, whose written evidence was presented before the Court and tested orally at the immediate hearing.

Dr Bashir’s report concluded that IA had an intact comprehension of the matters being addressed, that he could retain the information given about each matter, use the information given plus his own view and past knowledge to consider the pros and cons of different choices, and express his decisions sufficiently. Specifically, he advised that IA had capacity in the aforementioned domains of his life that were deliberated in the immediate hearing. Dr Bashir also confirmed that assessments which in the past had concluded that IA lacked mental capacity 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.

Soon after, a joint statement was prepared by Dr Bashir and Dr Daniel Jones (Consultant in Renal Medicine representing the team of clinicians on the ward at the Hospital)  which confirmed that IA was medically fit to be discharged from hospital, that IA was consenting to treatments (and had the necessary capacity to do so), that IA could retain and process information regarding his treatment and, generally, that IA had been compliant with his treatment and care and his medical condition had improved significantly. Whilst IA had a tendency to make ill-advised comments to others and drink more fluids than advised, he promised to make a concerted effort to work with his carers and nursing staff in this respect. Dr Bashir further recommended that the WCCG should appoint carers who had experience of working with clients with brain injuries, or support his care team with appropriate training so that his care in the community was well-managed.

Medical notes later corroborated that IA was happy to move to a nursing home, and was able sensibly to consider each option put forward. Whilst IA was able to make a fully capacitous decision about the choice of his future accommodation, he indicated that if IA was left on his own to do everything himself, he would be at risk of neglect. He therefore needed a carefully constructed care regime. He exhibited a sound understanding of his impairments.

Judgment

The Court held that the presumption of capacity had not been displaced in respect of any of the three issues.

Whilst IA had made a number of unwise decisions in the past about his medical treatment and home living conditions, these were not demonstrative of incapacity, but rather more reflective of his challenging personality. Additionally, the Court concluded that they could not be attributable to his acquired cognitive deficit. Further, it was held that his resistance to social work intervention was probably due to his long-standing grievances with the London Borough of Wandsworth. Also, as there was a risk that IA would make further unwise decisions in the future, the importance of effective support for him in the community and a closely monitored care plan was underlined.

Regarding IA’s ‘understanding’ (section 3(1)(a) of the Mental Capacity Act 2005) of the issues on which his capacity were judged, as Dr Bashir found, IA clearly acknowledged his health problems and was able to describe his disabilities and needs for treatment accurately and fully; he comprehended the options for his future care and understood both the financing of his future accommodation needs and his entitlement to compensation following the compulsory purchase order.

The Court held that IA was able to ‘retain’ information (section 3(1)(b) of the Mental Capacity Act 2005) relevant to the decisions which were in issue, as was evidenced by his reluctance to see a certain doctor after recalling unfavourable comments made by him in an earlier report, as well as the informed manner in which he had retained information about his financial affairs. Also, IA’s lack of cooperation with medical care and treatment was rather justified by the instability of his home circumstances, as opposed to his inability to retain information. Additionally, his variable compliance to advice concerning fluid intake was not evidence of an inability to retain information but rather him ‘not realising how much he had drunk on a warm ward’ or seeing if he could ‘get away with drinking more than he should’. The inconsistency of opinions given about his future care was also seen as more to do with his frustrations at his current situation, and his occasional tendency to make impulsive comments without considering the impact on his audience.

Regarding IA’s ability to ‘use or weigh’ the information (section 3(1)(c) of the Mental Capacity Act 2005) as part of the decision making process, it was held that IA had shown the lowest level of ability in this aspect, allowing his emotions and personal prejudices to interfere with making objective evaluations. Nonetheless Dr Bashir offered the view that IA was able to weigh up the information relevant to medical treatment, having concluded that IA was insightful in his medical conditions. Dr Bashir affirmed that he was aware of the implications of discontinuing his treatment and acknowledged the need for a carer as he was becoming increasingly forgetful. And whilst IA stubbornly resisted efforts to move him from his home, not only was he soon able to recognise the benefits of an interim placement in a care home, but this obstinacy was rather interpreted as reflecting his frustration and mistrust of the London Borough of Wansdworth.

Furthermore, whilst IA’s capacity had fluctuated, this was held to be more attributable to transient cognitive dysfunction due to metabolic reasons as a result of his physical illness than the progression of symptoms of his acute brain injury. 

The future:  IA’s best interests

The WCCG had made considerable efforts to identify medium/long-term suitable care providers and accommodation for IA, and available care home places in the short term. It was established that IA needed 24 hour/7 days a week nursing care and supervision.

As a result of the findings on capacity, the Court was not required to make a declaration as to IA’s best interests.

Regarding the plan for IA’s medical and other care, it was held that this would require very careful formulation and supervision, and that appropriately trained care staff with experience of working with patients with brain injuries would need to be engaged, with a proper level of expectation about IA’s personality.

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