By Jenny Kitzinger, 14 October 2020
If it had already been declared that you lacked capacity to make a decision for yourself, what would you do in court to try to get the judge to make the decision you want? How would you seek to persuade the judge of the logic, reasonableness and ‘rightness’ of the decision you want made?
I watched someone (I’ll call him “Mr G”) wrestle with exactly this issue in court. I’ve observed two recent court hearings (Case: 13382192, heard by Judge Jim Tindal: one hearing in July, the other in October 2020). The court has been trying to make a decision about where Mr G should live – and Mr G has been there in (virtual) court trying to influence that decision to go the way he wants it to.
What it means to lack capacity to make a decision
A typical public image of a person who ‘lacks mental capacity’ to make their own decisions – and who might therefore become subject to Court of Protection proceedings – is a severely learning disabled individual or someone with catastrophic brain injuries or advanced dementia.
In legal terms, such people have “an impairment of, or a disturbance in the functioning of, the mind or brain” (s. 2(1) Mental Capacity Act 2005) which leaves them unable to understand information relevant to a decision that needs to be made, unable to retain that information long enough to make a decision, unable to weigh it up or unable communicate their decision to others.
Some subjects of Court of Protection decisions “fail” to have capacity on all of these criteria. A person in a vegetative state, for example cannot understand, retain, or weigh information nor can they communicate a decision.
But a person is deemed to lack capacity to make a decision if they ‘fail’ on just one of these criteria.
For example, someone might be able to understand and retain relevant information about a particular decision, and articulate their wishes clearly, but could nonetheless be deemed unable “to use or weigh” the relevant information as part of the process of making the decision” (s3(1) MCA 2005).
This means that some people subject to best interests decision-making in the Court of Protection are a long way from the popular imaginings of the typical “incapacitous person” (itself a legal myth) and some can present very clear and compelling statements about the choices they wish to make for themselves.
Eloquent Ps in court
In the Open Justice blog posts about Court of Protection hearings so far, we’ve already met a wide range of people like this including:
- The “well-mannered, urbane”, “humorous” and “intelligent” Mr A (so described in the judgment, here).
- the “thoughtful, articulate and insightful” AB (as described by the judge, quoted in the blog post here)
- and the “eloquent and passionate” P who “displayed an impressive understanding of various pieces of legislation” (from another blog post, here)
Each of these individuals wanted to make their own choices and clearly resented the imposition of ‘best interests’ decisions upon them. However, regardless of their ‘understanding’, ‘intelligence’ or ‘insight’, the judgment was made that each of them lacked capacity about serious matters including management of their own property and decisions about their health (P) and what medical interventions to receive (AB and Mr A).
In response to such cases, some commentators have tried to explain how someone may be eloquent but lack capacity, and others have looked at how finely balanced assessments of capacity may be, or questioned how lack of capacity was determined (see the discussion in this blog post here). Others have challenged how the decision itself was framed in the hearing (e.g. here). In this post, however, I want to take the capacity assessment at face value, and focus instead on how someone conducts themselves in court in such a situation.
Mr G: presenting a ‘reasonable’ and ‘capacitous’ self
Mr G is a man in his early 60s, with frontal lobe disorder and other medical complications. He wants to leave his care home placement and return to living in the community. I wrote about the July hearing here).
The court is considering various options (including a return to living in the community) and a further hearing is scheduled for December once all the relevant plans and options are in place.
Mr G objects to other people making the decision about where he should live because he does not agree that his decision-making capacity is compromised in any way. The manner in which he comported himself in the hearings was striking, his arguments eloquent.
He asserts that he has capacity to make his own decisions
He is concerned about “the profound, serious, and in my opinion inauspicious interjections of certain parties in this action…” (October hearing). There have been, he says, “mis-judgments’ about his capacity due to misinformation, and ‘countless errors’ in a particular report. (July hearing)
He acknowledges that there have been appropriate concerns about his capacity in the past, but these don’t apply any more. His alcohol problem, for example, is he says now under control and he was at pains to demonstrate insight into, and rejection of, his previous, “anomalous”, behaviour:
I recognise my part in the circumstances that presented last year. I’ve never been in these circumstances before. I recognise I have not conducted myself in a way that I would have wished to. I recognise my culpability. (October hearing).
Mr G emphasised the things had changed since that “chaotic” period in his life. He was he said now “perfectly capable of making decisions” (July hearing)
He shows that he understands and is accommodating of the court process
In court, Mr G conveys an image of himself as well able to manage himself and his own affairs. He emphasises his understanding of proceedings (e.g. responding to the judge’s question about his grasp of a particular issue: “I understand entirely, it is not at all complicated”). He underlines that he is not only rational, but also reasonable and accommodating. When conceding, for example, that he was willing to accept a delay in the date for next hearing, he commented: “If it is a question of waiting a month or two, that isn’t going to be an impediment to my acquiesence….I want to make clear that I am a reasonable man”.
He takes responsibility for his actions
Mr G was also explicit that he was someone who acted responsibly: “I’ve put my affairs in order and done all the things you’d expect a responsible individual to have done.” (October hearing); “I’m used to taking responsibility and welcome it. I’ve always tried to conduct myself according to the right way to behave. I’m sorry if that sounds arrogant’. (July hearing)
He is respectful of others
Although at times appearing upset by what’s said about him in court, Mr G maintains a calm approach to proceedings. He is measured in challenging what he sees as errors of fact in the doctor’s report about him. He is unfailingly respectful of others, being careful to state that the staff in his care home were “courteous and hardworking” and that his eagerness to leave is “no reflection on them”. A rare moment of agitation came in response to the suggestion that he might have begun to integrate into care home life, perhaps going for a stroll with another resident. This, he says, is “absolute nonsense…it is a factual lie that I have a connection with any individual” (July hearing). He distinguishes himself from the other residents with whom, he explains, he has nothing in common, as they have “mental problems”.
He is restrained and courteous
There was only one moment when Mr G challenged the sense of egalitarian cooperation and drew attention to the power imbalances at play declaring: “It is all very well us sitting here talking about my life but it is being talked about in an atmosphere which does not reflect that I am incarcerated against my will” (July hearing). On the whole, however, Mr G is noticeably restrained, and never rails against what he sees as his unjust incarceration. He seems very conscious of the need to consider how he comes across, commenting at one point: “You’ll draw your own conclusions from how I present myself”.
When he shakes his head in disagreement, he seems to do so more in sorrow than in anger. Only on a few occasions does he talk ‘out of turn’ carefully alerting the judge to his wish to interject with comments such as “excuse my interruption; when there is an appropriate moment may I make a few comments”
Overall Mr G comports himself rather like a well-respected retired colleague at a reunion in a barristers’ chambers. The relationship cultivated between him and Judge Jim Tindal also seems mutually respectful, almost collegial. Indeed, the judge expressed the hope that he had a “reasonable relationship with Mr G despite differences of opinion” (July hearing). For his part, Mr G was complimentary to the judge: “You are a deeply fair participant in the hearing, indeed adjudicant” he commented, adding “I am very grateful for your humane as well as your professional judgment” (October hearing).
As I’ve already said on the basis of the previous hearing back in July (here), and as was also true at the October hearing, the court made obvious efforts to treat Mr G with respect and to ensure his views were fully heard. Nevertheless, it was deeply uncomfortable watching Mr G navigate, in his own words, “sitting in court, at the wrong end of the law”.
His sense of the indignity at being judged incapable of making his own decisions about important areas of his life was painfully obvious. This is also evident in some of the other blog posts for the Open Justice Court of Protection Project. Even when the court is kind, respectful and has the person’s best interests at heart, the affront to a person’s sense of their own right to make their own decisions remains.
Perhaps the right to make our own decisions is something many of us take for granted and we only realise how central it is to our sense of self once it is under threat? Or perhaps, in some cases, it is precisely because autonomy is a core part of a person’s value system that a case ends up in court?
I was acutely aware of the tensions and contradictions Mr G was navigating in the courtroom setting. On the one hand, he spoke as if he were among colleagues and everyone in the court was an equal participant in the process; on the other hand, he identified and challenged the intervention of outsiders into his life and the power hierarchy at play.
I can’t begin to imagine what it must feel like to believe that you are perfectly capable of making your own decisions and have that denied. I doubt that I’d behave with such circumspection as Mr G in these circumstances. In his situation I’d be more likely to rage against the affront to my sense of self – behaviour that might damage my attempts to persuade them to make the ‘right’ decision about me!
Watching Mr G navigate the hearings reinforced for me why I have (at a time when my capacity is not being challenged) written a legally binding Advance Decision to refuse certain treatments and have also written (and video-ed) an advance statement recording a general account of my values and approach to life. This highlights some of the values and beliefs so core to who I am as a person that I want them respected in any future best interests decisions made about me.
In this case Mr G’s own previous capacitous views on the balance to be struck between safety (living in a care home) versus self-determination (living in a flat of his own) are clearly relevant to decisions about his next placement. These views can, of course, often be gleaned from family and friends, alongside looking at past habits and behaviours, but an advance statement (written before he lost capacity) would, I suspect, have been a much more accessible, convincing and engaging way of ensuring that his past wishes are fully considered.
Mr G could be any of us who currently have – and may in future lose – the capacity to decide for ourselves. For some people that loss of capacity is associated with obvious failures in their ability to understand, remember, and weigh information, as with advanced dementia or for people with catastrophic brain injuries. But many of us may be deemed by the courts to lack capacity to make key decisions about our own lives at a point where we believe ourselves entitled to make decisions for ourselves – indeed the very loss of insight that can come with brain injury may render us completely unable to recognise our own limitations. Like Mr G, we may fight (and lose) an argument that we are capacitous. Like Mr G, we may then find ourselves subject to other people’s ‘best interests’ decisions about us – even though, like Mr G, we may have a strong sense that this is an injustice.
Trying to protect ourselves (at least in part) against that kind of future is difficult. It means reflecting, now, on what we want for our future (“incapacited”) self, and the extent to which we want to make decisions in advance for the incapacitated person we might become. It means considering what guidance we want to provide – in the form of an advance statement – for the health and social care professionals (and possibly judges) who will need to make decisions in our best interests.
My observations of hearings like Mr G’s in the Court of Protection reinforce my belief that everyone should consider advance decisions, advance statements and lasting power of attorneys as ways of supporting and protecting their future incapacitous selves – and, indeed, helping those around them who are charged with supporting their decisions, or making decisions for them. The charity Compassion in Dying provides information – for free – about all these options.
Jenny Kitzinger is a Professor in the School of Journalism, Media and Culture at Cardiff University, where she also co-directs (with Celia Kitzinger) the Coma and Disorders of Consciousness Research Centre. She has blogged for the Open Justice Court of Protection Project about this same case at an earlier hearing here. She tweets @JennyKitzinger