LB Tower Hamlets v A (by her litigation friend the Official solicitor) & KF [2020]

Keywords: Capacity, Accommodation

A was 69 years old and had a diagnosis of Korsakoff’s dementia.

She had no children and her former husband had died. She has many caring friends who have taken an active part in her life and in these proceedings. She had lived in her flat, of which she was clearly very proud, for more than twenty years. About three years ago A suffered a stroke. Shortly afterwards she executed Lasting Powers of Attorney for both property and welfare. KF was one of the joint and several property attorneys, and the sole welfare attorney.

All parties agreed that she lacked capacity to decide care. She had been admitted, temporarily, to a care home, following a period in hospital as a result of a fall at home and significant confusion, and the issue was now whether she had capacity to decide whether to remain in the care home or return to her own home with a package of care.

Capacity assessments undertaken whilst A was in hospital had found her to lack capacity to decide where to live. A social worker familiar with A had concluded that she lacked capacity to decide where to live on the grounds that she lacked capacity to decide on her care needs and that those needs were crucially relevant to the decision about where she should reside. Similarly, a psychiatrist has also assessed her as lacking capacity to decide where to live because, in his view, A’s denial of her memory problems and lack of understanding of and inability to retain information about her support needs meant that she was unable to understand the relevant information. Further assessments, undertaken in the DOLS process shortly after her arrival in the care home had concurred with these views.

However, an independent psychiatrist jointly instructed by the parties, who assessed A after she had been in the care home for a longer period, considered that her presentation in hospital had been additionally affected by delirium due to an infection, which had now gone.

Additionally, he felt, her cognitive functioning had benefitted from good nutrition and abstinence from alcohol during her stay in the care home.

His view was that, despite lacking capacity to decide her care and to manage property and affairs, A did now have capacity to decide whether to live in residential care or in her own home. He identified that A was able to write down information and use her notes to prompt her recollection and that she was able to understand and weigh the risks and factors she considered important in deciding between returning home with a package of care and remaining in residential care and retain this knowledge for long enough to reach a decision.

This included her understanding of the ‘conditions’ she would have to abide by (such as abstaining from alcohol and accepting care visits) as part of a care package at home and the consequences of failing to comply with these (i.e. a return, permanently, to residential care).

A was visited by her solicitor who explained to her the idea of a care package being provided in terms that there may be ‘conditions’ to her being able to return home. The attendance note records A asking essentially how it would be known if the conditions weren’t met, and then answering her own question: “if I damage myself, or their snooping snoops smell my breath from a quarter of an inch away.” She added “this is blackmail.”

A expressed positive views about C Care Home: “It’s a decent place, run by decent people. They are there to help, not hinder unnecessarily, though obviously they wouldn’t let me get into trouble.” When asked if there was a part of her which would rather remain at C Care Home, A replied “no, but I can understand why you ask that. I would never have imagined having a wobble. It is the prospect of being monitored; it feels like a prison. This place doesn’t.”

In fact it is lawful for a council to make an offer dependent on lawfully relevant conditions, such as controlling tendencies that render the service useless, or make life impossible for carers.

Crucially it was acknowledged that the chances of A actually complying with the conditions might well be below 50%, but that did not necessarily indicate a lack of capacity to make the decision.

She was recorded as saying “I can do as I’m told. It doesn’t mean I have to like it.”

The judge spoke with A, about her wishes and feelings and understanding of what was on offer, and he reported as follows:

“A was very articulate. She told me that her overwhelming feeling was that she would like to get back to her flat and her life. She said she had learned a few lessons, including that she should take more care, and that she is now slightly sadder and wiser than she was previously. A said that the people at C Care Home are nice and the place is comfortable but it is not her home, not where her life is, not where she wants to be. When I explained the proposal for carers, A told me that she “didn’t have an option.” She was able to repeat back to me after a few minutes (and seemingly by reference to her written notes) all four of the “conditions” by which the success of a return home would be measured. She said “I realise that I am not going back to my old life.” “

The Local Authority argued (citing B v A Local Authority [2019]) that the decisions about care and residence could not be considered in ‘silos’, because of the implications of one decision for another.

The judge acknowledged that there was overlap between the factors relevant to each of those decisions, but concluded “Overlap does not however imply that a decision in respect of residence somehow incorporates a decision in respect of care … it is not necessary to make a capacitous decision about care in order to make a capacitous decision about residence. Rather, as Theis J identified, what is required for A to make a capacitous decision about where she lives is a broad understanding of the sort of care which would be provided in each of the two places of residence potentially available to her.” [para. 65]

A very good and long-standing friend of A’s observed that now A’s “emotional self-sufficiency gives the impression of someone far more intelligent and in control of life than is actually the case.” He never realised that there was such a significant issue with alcohol. He too concluded that, if A returned home, he “would resign all further responsibility for being involved in helping to look after her… To send her home under the illusion that she is an independent intelligence capable of making decisions that are in her own best interests, even with multiple carers visiting and preparing her meals, would only be to hasten her decline still further.”

So capacity here was indeed a finely balanced question.

The judge considered what constituted relevant information for the decision as to accommodation generally (derived from LBX v. K, L, M [2013]) and narrowed down those elements relevant in this case as:

a. what the two options were;

b. in broad terms, the care which would be provided to her in each place (including that, in her own flat, carers would visit her several times each day);

c. that the option of living in her flat would be initially on a trial basis for up to 4 weeks;

d. that the trial of living in her flat would be considered successful if A engaged with the carers, took her medication, maintained appropriate nutrition and abstained from alcohol;

e. if the trial of living in her flat were not considered successful, it would end and she would return to C Care Home.

Observing the influence of a protective imperative on the opinions of some of the professionals involved, the judge highlighted the need to formulate an objective assessment of whether A, after a sustained period of care, was now able to decide between the two identified options for herself.

He noted that, once a best interests decision had been made to accept the care package to be provided to A at home, including the conditions, or the care home, A was able to understand what care would be provided to her in each potential place of residence. Therefore he concluded that she did, at present, have capacity to decide where to live.

The judge said this too:

“If, when the details of the care package are settled, A chooses a trial return home and even if ultimately it is not successful, I would not characterise that decision as “unwise.” Had I reached a different conclusion as to A’s capacity, on the basis of her current wishes and feelings, it is highly likely that I would have agreed with the Official Solicitor that the proposed return to live at home with a package of care should be tried. For A as much as anyone, home is more than ‘just bricks and mortar.’ “

Public Law point

There are some interesting titbits in the judgement which shed intriguing light on the Local Authority’s decision-making under the Care Act. The judge notes that the Local Authority failed (twice) to actually produce a social care assessment of A’s needs if she returned home, despite being ordered by the court to do so.

The Official Solicitor pointed out that there needed to be further exploration as to the minimum practicable care package required. However, the Applicant Local Authority has prepared a “proposed support plan” which they were ‘willing’ to provide, setting out a suggested daily timetable for personal care support and visits of 2 hours duration on Mondays and Thursdays to support activities in the community for leisure, appointments, shopping and so forth.

It very much underlines the difference between the jurisdictions of the Court of Protection and the Administrative Court (judicial review). Given the impossibility, under the Care Act, of arriving at a view of the proposed care package without regard to any assessment of the needs to be met, any judge in the Administrative Court would have insisted on a proper assessment before any arbitrary package of 3 visits a day!

We think that the experts should have known enough about the Care Act to insist that that process should have been a precondition of their own input on capacity, because if there was no plain straightforward statement of what were regarded as eligible needs, how could she, or her financially authorised representatives decide what to spend her money on, one way or another? And how could the experts properly explore her understanding of that minimum practicable offer, properly?

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