By Amanda Hill, 30th August 2024
“I want to get on with my life”.
At the heart of this hearing (COP 14251478 on 20th August 2024) is P, a man who looks to be in his late 60s or early 70s. He attended remotely by video link from a psychiatric hospital and was present for most of the all-day hearing. He wants to leave the hospital but there is disagreement about whether he has capacity to make decisions about his care and residence.
The Local Authority, London Borough of Lambeth, and P’s litigation friend the Official Solicitor (OS), argue that he does have capacity to make his own decisions about care and residence. Counsel for an NHS Trust argued that he does not. (I must admit that I’m not entirely sure which Trust was being represented in court. The Transparency Order lists King’s College Hospital NHS Trust as the Applicant. But I heard references to counsel in the hearing representing South London and Maudsley NHS Trust but them not being a ‘party’).
One issue which came to the fore in this hearing was that if P does have capacity, the options open to him in terms of care and residence were limited. Apart from the periods when he was in hospital, he had lived on the streets. If the judge were to decide that he has capacity, there was a distinct possibility that he could make the potentially ‘unwise decision’, given his physical and mental vulnerabilities, to return to the streets. As counsel for the Local Authority put it, although there are “advantages and considerable disadvantages…(it) would be his choice”.
The part of the hearing I watched (the second day of a two-day hearing), consisted largely of cross-examination of two witnesses with different points of view. Firstly, a social worker who had recently performed a capacity assessment of P and considered that P does have capacity to make decisions about his care and residence. Secondly, a medical professional, a psychiatrist, who believed that P does not have that capacity. The different position adopted by these sets of professionals, social workers and medical clinicians, was an interesting feature of this hearing, as was the issue of P’s trust (or otherwise) in them and how that impacted their assessments.
In this blog I will set out the background to this case, followed by the different arguments put forward by the witnesses. I will consider P’s ‘voice’ and engagement with the hearing and outline the ‘Catch 22’ that P risked according to counsel for the OS. I will finally reflect on the lack of options available to P.
Underpinning the submissions by counsel were arguments about getting back to the basics of the MCA 2005 and how capacity should be determined – even if it means unwise decisions could be made.
Background to the hearing
I became aware of this hearing through another member of the public who participates in the Open Justice Court of Protection Project’s (OJCOP) WhatsApp observer group, Tim Sugden. He’’d attended the previous day and completed an observer feedback form, through the OJCOP website here.
There were three advocates, representing the NHS Trust, the Local Authority and P through the Official Solicitor but I wasn’t able to ask for their position statements as I didn’t catch their names. I wish that time could be taken to clearly identify counsel for public observers so that we could ask for position statements, which greatly enhance understanding of hearings.
This was a hybrid hearing and I attended remotely, as did P and the medical witness. The judge, HHJ Beckley, and the lawyers were in the physical courtroom at First Avenue House. As is often the case with hybrid hearings, the sound was sometimes poor. There was no opening summary for observers at the start of this hearing, which is disappointing and not in line with the recommendation from the (former) Vice President of the Court of Protection (here). So I have pieced together the background from Tim Sugden’s feedback form, and my own observation.
P seems to have spent a lot of his life “street homeless” and from what I observed had been content with this lifestyle, as he had expressed a desire to return to it. However, since around 2022 he seems also to have spent a lot of time in hospital and his physical capabilities have diminished. He now uses a wheelchair, and during the hearing it became apparent that he finds sitting for long periods uncomfortable. He takes medication for pain. He has indicated that he accepts he needs a certain degree of care now.
P is currently in a psychiatric hospital – but over the past couple of years, he seems to have been in and out of hospital for physical rather than psychiatric problems. Nonetheless, discussions had been ongoing regarding his future care and residence. The Court of Protection (COP) had become involved at some point (the Transparency Order I was sent was issued by District Judge Mullins and dated 14/5/24 so the court was certainly involved by then).
It appears that P doesn’t understand why the COP is involved. The social worker stated during cross examination: “I couldn’t sway him from the criminal element of what the court was… he said ‘I haven’t done anything wrong’…I explained the Court was about doing the best for him”.[1]
The social worker also referred to discussions with P about moving to a care home from hospital. P has an issue with trusting medical professionals which impacted on how he felt about moving into a care home. For example, the social worker reported that P “felt that medical were out to get him… to trap him… not listen to him”. P did however say he was willing to move to a care home on a short-term basis, as a precursor to finding a longer-term solution, which could be some form of supported living. The social worker assessed that P had the capacity to make this decision when he met him in June 2024.
P subsequently moved to a care home in July 2024. However, within four hours the move had failed as P had set fire to his bedding. He was taken to A&E at the local hospital with a wound to his hand and then detained under section 2 of the Mental Health Act that same day and admitted to an acute psychiatric unit. On 2nd August 2024 a tribunal ruled that P should not be detained in the Psychiatric unit under Section 2 and should be discharged. But P was still detained in the Psychiatric hospital until a decision could be made about his capacity to decide for himself about his care and residence (and if he lacks capacity, his best interests in that regard). It had already been agreed that he did not have capacity to make decisions about litigation – hence the appointment of the Official Solicitor.
This hearing was held over two days, to enable the judge to make a decision about capacity and, if necessary, best interests, as well as authorization of a short- and long-term Deprivation of Liberty.
One striking feature outlined on the feedback form completed by Tim Sugden at the previous day’s hearing was that P asserted in court that the reason he had set fire to the bedding was that it was effectively a reaction to what he had seen and how he had been treated at the care home. From the observer feedback form, I read that P had held up his hand to intervene in the hearing because “He wanted to say that the fire he had started at the nursing home had “not been intentional”, that he had only done it as he had “been stripped and locked in a room for hours”, “beaten up” and “held by the throat” by staff, and refused any access to talk to someone in charge.” In the hearing I observed, there was reference to a Section 42 safeguarding enquiry against the care home staff, which I assume was as a result of P’s allegations.
The previous day the court had heard evidence from the Interim Team Leader from Lambeth who co-ordinated completion of the Capacity Assessment. She suggested that P did have capacity to make decisions about his care and residence. Now the court was to hear from the Social Worker who had also assessed P as having capacity and a senior Psychiatrist who had treated P in hospital.
Does P has capacity to make decisions about his care and residence?
The social worker, (W), was cross-examined extensively by the three counsel and I will outline the main points he put across to support his assessment that P had capacity to make decisions about his care and residence.
He explained that he was a qualified DOLS (Deprivation of Liberty Safeguards) assessor and had conducted capacity assessments since 2007. He had met P for nearly three hours in June 2024 and described P as ‘receptive’ to him. He contrasted what he found to what he had expected, in terms of how P engaged with him. He’d written in his report that “P appears to engage differently with psychiatrists to social workers”. He was asked by Counsel for the OS whether in terms of “using, weighing and retaining information, are you happy that P is showing some insights…are you confident that it was proper evidence to use and weigh rather than him saying what you wanted to hear?” W replied that P did understand his care needs. For example, he was not accepting of male personal carers and would prefer females. “In my opinion he accepted that his life had moved on and he was aware of his limitations”. He accepted he was now in a wheelchair and he understood that taking drugs and consuming alcohol over a long period had impacted his health. It did seem, however, that P was more accepting of his physical limitations than his mental limitations.
When questioned by counsel for the Trust, it was put to W that P agreeing to go into the care home one day and then setting fire to it so soon after arriving was evidence that he suffered from impulsive behaviour that was incompatible with making capacitious decisions. W replied that he felt it was down to how P was supported to make decisions. It was about “his involvement in decisions and how much he is listened to”. W implied that social workers approached P differently: “my colleagues all have different (views) ….a social worker looks at (the situation) holistically….psychiatrists view things differently and focus on mental issues.” He reiterated: “I’m not trying to put my opinions above other colleagues but social work is about helping people to understand how to make decisions …it depends on how things are explained to him”.
Counsel for the OS asked W to reflect on why P distrusted medical professionals. “Do you think that P’s experience of being let down by professionals going back to his mother’s death, is … a factor?” W replied “I will answer that question how I want to, based on my conversation with him. I got the feeling that P is very distrustful of medical staff, I went with an open mind and I was surprised how I was received by him, we were in a small room, as a social worker we showed we could listen and could help him and I got the impression he sees the professions very differently…that’s my feeling about that, we didn’t openly discuss it.”
W remained convinced that P had capacity and believed that how P reacted depended on how he was supported to make decisions. He asserted that although P had agreed that he should go to a care home for a short while, he was already anticipating that he might not like it. He didn’t waver from his assessment that P had capacity to make decisions about his care and residence, at least when he had assessed him in June.
Dr A (as I will call him) was cross examined next. He is an experienced psychiatrist and was part of P’s clinician and liaison team when he was in the previous hospital. He had seen P informally when he was in hospital (during ward rounds) and formally (to assess and treat him), for a number of months before his discharge to the care home. He accepted that the team viewed “this as a complex case”. He still firmly believed that P did not have capacity to make decisions for his residence and care, although he accepted that he “had not seen him recently”. He outlined some of the multiple diagnoses that P had, including personality disorders resulting in behavioural issues. P had sustained a brain injury in childhood and had abused substances over many years. A recent cognitive impairment was indicative of dysexecutive syndrome. However, the nub of Dr A’s evidence was that testing had indicated that P had a progressive, deteriorating condition: “We have two different tests that indicate he has a high probability of dementia”. Dr A believes that “there is an underlying condition that affects his ability to weigh up information”. He stated that P “doesn’t accept he needs help” and that his lack of ability to plan for the consequences of his actions indicated that he could not process information in a way that indicated capacity. He used the example of P being asked what he would do if he was discharged. P stated that he would get a taxi to Liverpool Street but Dr A believed it extremely unlikely that a taxi driver would take him, an indication of a lack of adequate planning.
He questioned why P would set fire to the bedding at the care home when it would not lead him to better accommodation. This led to an interesting exchange between Dr A and counsel for the OS, which I will paraphrase. It was revealed that P had taken two lighters with him to the care home and only handed one over when he was admitted. He then used the other to set fire to the bedding.
Counsel asked Dr A if this indicated an ability to plan actions. “…P kept the other one (lighter) in case he needed it…..does that indicate executive functioning?”.
Dr A referred to a “frontal load deficit” and gave an example of making a cup of tea: multiple steps are involved, one could put the kettle on a cooker but forget to take it off. “I can’t say how capacitious he was to set fire to the place, but the planning component was falling apart ….in terms of planning, what was the pathway, what did he think he would get out of it?”
Counsel for OS: Couldn’t the logic be “I set fire and therefore I will get out of the care home?
Dr A: Did he get out?
Counsel for OS: Well, yes he did……and he says he saw some things there and has made allegations.
Dr A: But he took the lighters with a plan to set fire to the place before he saw it?
Counsel for OS: Maybe he took the lighters just in case …..and then had a distressing experience, saw people treated badly and was shut in a room for four hours.
Counsel suggested this course of events indicated planning. Dr A believed it indicated impulsive behaviour.
Dr A stated that he believed that P lacks insight into the challenges facing him in the immediate future, because of a choice between going into a care home or back onto the streets. Counsel for the OS suggested that maybe he would think differently if there was a different option, with more supported independent living, giving him more freedom to come and go. Dr A replied that the first question in the capacity assessment was the impairment of the brain and that is still there… “the dysexecutive syndrome is not likely to reverse”. Although still believing that P lacked capacity to make decisions about his care and residence, he accepted that multiple people had differing views on this, and he was not going to pretend that it was a straightforward case.
The voice of P and a Catch 22 situation
Unlike many of the hearings I have observed, P was present and engaged throughout this hearing. He joined the hearing from the psychiatric unit, from a room that looked like a large cupboard but included a fridge – so I guess it was a sort of small kitchen. A member of staff helped him to use the computer, muting and unmuting the link as necessary, as well as giving him the occasional ice lolly, which he seemed to appreciate. He was sitting in a wheelchair. Throughout the hearing, HHJ Beckley took the time to engage with P and explain what was happening. Each time P replied, and actively participated in the conversations. For example, when P joined the link a little later than everyone else, the judge greeted him and explained that the court was hearing evidence from the social worker who had conducted the capacity assessment. “We will wait for him (to finish) and then I’ll listen to you. Is that OK?” P replied that it was.
P seemed to be listening intently as the social worker gave evidence. When he had finished, it was P’s turn to address the court. The judge started the exchange by saying “P, I realise how weird it must be for you to be sitting in that room listening to people talking about you in this room”. He invited P to tell the court what he wanted to say. P firstly apologized for how he had acted when the judge had visited him in hospital. He wanted to tell him that he was very sorry for the way he had acted and that the judge had needed to leave.
He then expressed his desire to leave the hospital: “I want to get on with my life, I’m not interested in drugs anymore, I will take my medication…I’ve been in here a while now, Your Honour…the pain I’m in now, I’m not receiving the right medication…It’s distressing for me…all I’m trying to say to you guys if you can see in your hearts to see where I’m coming from …I just want to get out.. to go somewhere where I have a carer, to help me take my medication on a more regular basis, to be as independent as possible ….I can see I need some help from carers…That’s all I’ve got to say”
The judge accepted his apologies and told P that Dr A would now be giving evidence. P replied by saying ““I look forward to it, Your Honour”.
I haven’t observed many hearings where a P has been present and participated, not least as eloquently as this P did. I noted the way he spoke to the judge, referring to him as “Your Lordship” and “Your Honour”. He certainly seemed able to express his views politely but firmly. P stated clearly in this exchange that he recognised that he needed some sort of care, but wanted to live as least a restrictive life as possible.
However, I realise that being able to express a view is not an indicator of having capacity. Previously blogged cases concerning eloquent P’s who were determined not to have capacity include: “Articulate, Eloquent and Passionate – but does P have the Mental Capacity to Make Decisions about Four Areas of her own Life?”; “Influencing ‘best interests’ decisions: An eloquent incapacitious P” and “Improving P’s quality of life pending a s.21A change in residence”.
In this case, as counsel for the OS submitted later in the hearing, P seemed to be in a Catch 22 situation. In the past he had said he did not need care, and that was evidence that he was in denial and did not have capacity to make decisions about his care and residence. However, now that he was saying he recognised that he did need care, the court was being asked to consider whether what he was saying should be taken at face value and that it was what he did rather than what he said which indicated capacity. For example, Dr A stated during his cross-examination that P had self-discharged from “multiple hospitals and nursing homes” which he considered showed a lack of ability to plan for the long-term. Counsel reminded Dr A that capacity is time and decision specific and that P was currently saying that he understands that he’s physically frail, that his body wouldn’t take him using drugs anymore. Was Dr A suggesting that his actions in the past are relevant to the capacity assessment now? Dr A replied that “My slight concern is that we are accepting he has capacity because he is agreeing with what we are suggesting”. He added “I don’t know how it squares up in my head…he says ‘give me my freedom and I’ll accept help’ but he is not accepting help now”. Dr A also stated, with regards to the fact that the social worker said he didn’t feel listened to that he would take that at “face value”.
As I set out below, the judge seemed to suggest that past actions were in fact relevant to the current decision he would have to make.
How the judge will decide
There were two aspects to closing submissions. Firstly, what the judge should consider when deciding on capacity and secondly, what options were available to P. Counsel for the OS and for the Local Authority both submitted that going back to basics was the basis. Counsel for the Local Authority stated that according to the MCA 2005 there should be an assumption of capacity and the burden was to prove that there was not capacity. There was also a principle that “capacity is not on the wisdom of the decision…P has the capacity to make an unwise decision and to suffer the consequences if things go wrong”. He argued that the bar should not be set too high to let somebody decide for himself.
Counsel for the OS reminded the judge that there should be a functional and then a diagnostic case – is P able to weigh, use and understand the relevant information to make a decision and if not, what is the cognitive impairment that is preventing him from doing so? She implied that the social work approach was different from the medical approach in this case, that Dr A believed that as P had a progressive, deteriorating impairment he should be assessed as not having capacity, which is the opposite way round to the way outlined in case law. I heard ‘JB’ and I think that is referring to Heart of England NHS Foundation Trust v JB [2014] EWHC 342.
I was struck by something the judge said about how he would make his decision – he said “although capacity is time-specific, I can take into account the history”. I had understood that capacity was only time and decision specific, so I learned something from this statement.
In terms of options if P were found to have capacity, they seemed to be stark. No mention was made during the hearing of any family and clearly P had no home to be discharged to. He had indicated that he wanted to be discharged to some form of supported living that enabled him to receive care but be free to come and go. However, this did not seem to be a viable option before the court at this hearing. Counsel for the OS summed it up as follows: “if you find today that P has capacity, I think you must proceed on the basis that P is free to make his own decisions. So, what is the question? The question is that there is not amazing supported accommodation so the question today is that whether he will stay where he is or go to the street, homeless.” And one can imagine that if P ended up on the streets again, he would soon find himself back in hospital.
Putting the cart before the horse?
Witnesses were asked not to speculate during this hearing but I did find myself wondering whether the decision on capacity about care and residence would be different if P had somewhere safer to be discharged to than the streets. The judge seemed to be partly considering this during an exchange between him and counsel for the Local Authority towards the end of the hearing. As much as I could understand it, counsel for the LA was pondering about the only options being between hospital or the streets “because there is no other option”. The judge reflected on the fact that P was likely to be discharged if the Court found that he had capacity. This was because the tribunal had decided he should not be detained under section 2 of the MHA. Therefore, if the COP decided that P did have the capacity to make decisions about care and residence, it was unlikely that he would be stopped from leaving the psychiatric hospital. The judge then said that he couldn’t “assess the outcome, as that’s putting the cart before the horse”.
This again seems to be referring to a point made in the ‘JB’ case. Paragraph 7 of that judgment states:
‘The temptation to base a judgement of a person’s capacity upon whether they seem to have made a good or bad decision, and in particular upon whether they have accepted or rejected medical advice, is absolutely to be avoided. That would be to put the cart before the horse or, expressed another way, to allow the tail of welfare to wag the dog of capacity. Any tendency in this direction risks infringing the rights of that group of persons who, though vulnerable, are capable of making their own decisions. Many who suffer from mental illness are well able to make decisions about their medical treatment, and it is important not to make unjustified assumptions to the contrary.’ (Heart of England NHS Foundation Trust v JB [2014] EWHC 342)
The judge concluded the hearing by saying that it was a finely balanced decision. He was going to let the parties, including P, know the next day by email, so I don’t know what decision he came to. It is unusual for judgments to be published so I have asked for a copy of the approved order. I hope I receive that as I’m really interested in what HHJ Beckley decided.
Update: a blog outlining the judge’s decision has been published:
24th September 2024 Judgment: An update to “A Catch 22 situation for P or Hobson’s Choice?” (and how access to court documents helps transparency and open justice) by Amanda Hill
Amanda Hill is a PhD student at the School of Journalism, Media and Culture at Cardiff University. Her research focuses on the Court of Protection, exploring family experiences, media representations and social media activism. She is on LinkedIn (here), and also on X as (@AmandaAPHill) and Bluesky (@AmandaAPHill.bsky.social)
Note: Where I’ve quoted from the hearing, this is based on my notes, as observers are not allowed to record hearings. I’ve tried to capture these as accurately as possible to the best of my ability, but I don’t touch type so they will not be 100% accurate. P was referred to by his name throughout but because of the Transparency Order in place, as is standard I cannot name him.)
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