By Daniel Clark, 31st January 2025
Mr H has lived in A Care Home since 2022. He is challenging his deprivation of liberty, pursuant to s21a of the Mental Capacity Act 2005[i], but the respondent local authority think that it is not in his best interests to return home.
A brief (25 minutes) hearing in this case (COP 13269646) was heard on Friday 15th November 2024 at 2pm before District Judge Anderson, who was sitting remotely (via MS Teams) at Bradford County Court.
Hannah Bakshani, of St John’s Buildings, represented the applicant Mr H, via his Accredited Legal Representative (ALR). Pippa Pudney, of Spire Barristers, represented the respondent local authority, Calderdale Metropolitan Borough Council.
Prior to the hearing, the parties had agreed a draft order and sought to vacate the hearing. The judge, however, was not content to do this, and ordered that the hearing remain so that she could receive clarification on various points in the order.
Some of these related to Mr H’s dietary requirements, though this wasn’t expanded on except to note that the court needed to know the issues around this prior to the next hearing.
Another point of clarification was Mr H’s request for a judicial visit. This is something that the judge was “very open to in principle [but] I understand he’s expressed concerns about lots of visits from professionals so the timing needs to be considered carefully”. It was agreed that his legal team would discuss this with Mr H, and then inform the court.
The two issues I will focus on in this blog are (1) Mr H’s diagnosis, and (2) his property and finances.
- Questions surrounding Mr H’s diagnosis
For somebody to be lawfully deprived of their liberty by the Court of Protection, there must be (at least) “reason to believe” that they lack capacity to consent to their residence and care.
A capacity assessment is made up of two tests: a functional test (can the protected party (P) understand, retain, and weigh the information relevant to the decision prior to communicating a decision) and a so-called ‘diagnostic’ test (in the rather general words of the Mental Capacity Act 2005, does P have an “an impairment of, or a disturbance in the functioning of, the mind or brain”).
A “causative nexus” must also be established: that is to say, it must be demonstrated that the lack of capacity is caused by the “impairment or disturbance” in the mind or brain.
As explained in an earlier blog, the statutory basis for the causative nexus (though not the phrase itself) is in s2(1) of the Mental Capacity Act: ‘a person lacks capacity in relation to a matter if at the material time he [sic] is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain’ (my emphasis).
If any of these three elements is missing, it cannot be finally determined that P lacks capacity. If that is the case, P can also not be lawfully deprived of his liberty (though the court can make an interim declaration that P can be lawfully deprived of his liberty while further assessments take place if there is “reason to believe” that P lacks the requisite capacity.
It is important to stress there is not actually a statutory requirement for any specific diagnosis to be made. In North Bristol NHS Trust v R, Mr Justice MacDonald considered an application for declarations that it is lawful, and in R’s best interests, for an elective Caesarean operation to be performed. MacDonald J considered the question of whether a formal diagnosis was required before the court could made declarations as to capacity and best interests. He found that this would be undesirable: “To introduce such a requirement would constrain the application of the Act to an undesirable degree, having regard to the complexity of the mind and brain, to the range of factors that may act to impair their functioning and, most importantly, to the intricacies of the causal nexus between a lack of ability to take a decision and the impairment in question” (§47).
In the case of both R and Mr H, there was uncertainty about what their diagnosis actually is. As Counsel for the local authority put it, there is “some lack of clarity around [Mr H’s] diagnosis and how that feeds into his functional ability”.
The judge was concerned by this, and it was one of the reasons that she declined the application to vacate: “This is a case where the first Form 4 [detailing P’s eligibility to be deprived of his liberty] that I have seen details that P has a cognitive impairment due to a brain injury… The Form 3, dealing with best interests, refers to a brain injury as well as epilepsy. The most recent standard authorisation includes a Form 4 setting out that his symptoms and presentation and history are consistent with “Korsakoff’s and alcohol-related dementia”. There’s no mention of a brain injury and Form 3 mentions Korsakoff’s diagnosis in 2016. I want to address how that best be addressed.”
I did wonder whether this was a semantic problem. Korsakoff’s syndrome is a type of alcohol related brain damage; that is to say, it is a type of brain injury. There is a need to clarify what, exactly, Mr H’s diagnosis is.
However, the reasons for clarifying Mr H’s diagnosis go beyond ensuring that paperwork is consistent. As Counsel for Mr H told the court, “Korsakoff’s is a complicated diagnosis. It was made in 2016 and we’re not sure how it has progressed. He hasn’t been consuming alcohol, or not excessively, since admission to new placement. We need to know if he has received further medical attention”. Indeed, Dementia UK reports that 25% of those with alcohol related brain damage recover fully, 50% recover partially, and 25% progress ‘with damage to the brain and nervous system’.
In other words, not only might Mr H no longer lack capacity but he also be missing out on much-needed medical support.
The judge therefore directed that medical records should be disclosed to the local authority and ALR. Following this, there may be a request for an independent expert to review Mr H’s capacity.
However, the judge was alive to the fact that these reports can take up to 12 weeks to be completed. She therefore directed that there must be “an early application for further evidence…. I’ll be a bit disappointed if we get to the next hearing and it’s at that point the evidence of capacity is raised again. If there’s dispute about the need for capacity evidence, I’ll do my best to list a short hearing”.
2. Questions around Mr H’s property and finances
The second reason that the judge declined the application to vacate was that she required further clarification on several points in the draft order.
Another issue, which is what I found most baffling, was first mentioned in the local authority’s opening summary. Mr H wants to return home and this is, in theory, an available option: “He has a rented flat that remains available to him though I understand it isn’t furnished”. In closing, the judge clarified that he has, “one, maybe two, properties as well as a rental…I understand from [Mr H’s] representatives that he wasn’t supported to return home after what was intended to be a short term stay at the current placement in 2022”.
There was no explanation for why Mr H was not supported to return home nor why (it sounds like) he is renting, or the landlord for, a property that he can’t live in. This is information that the judge wants to know before the next hearing.
It did however strike me that it sounds as though Mr H’s deprivation of liberty was either not authorised or reviewed until recently, at which point his objections were heard. This would not be beyond the realm of possibility: a recent Age UK report states that, in 2022/23, 126,000 DoLS applications were not completed (p3). While I do not know Mr H’s age, these figures refer to all DoLS applications across all age groups.
These resource pressures come, in part, from the way that the Cheshire West judgment (which established an “acid test” for identifying deprivations of liberty) resulted in multiple people being considered to be deprived of their liberty. This increase in applications far outpaced the number of professionals who were able to assess whether a person’s living arrangements amounted to a deprivation of liberty, and whether that was in their best interests.
Despite the significant policy implications, the acid test has not actually been discussed in any great detail in the House of Commons. The proposed Liberty Protection Safeguards would have been a helpful way to relieve some of the pressure, but these plans were shelved, and there seems to be no sign that parliament will return to this any time soon.
This means that the backlog will grow and grow, and more and more people will be deprived of their liberty without adequate safeguards. As the Age UK report comments, ‘there is inevitably a risk of injustice for some individuals, whose lawful right to liberty will have been inappropriately denied’ (p4).
Hopefully all of the issues that DJ Anderson was concerned about will be fully explained and resolved at the next hearing, which will be in the week commencing 3rd February 2025.
Daniel Clark is a member of the core team of the Open Justice Court of Protection Project. He is a PhD student in the Department of Politics & International Relations at the University of Sheffield. His research considers Iris Marion Young’s claim that older people are an oppressed social group. It is funded by WRoCAH. He is on LinkedIn, X @DanielClark132 and Bluesky @clarkdaniel.bsky.social.
[i] For some blogs by the Open Justice Court of Protection Project that detail s.21A applications, see: “A ‘bog standard’ s.21A case: Anna’s mum”; “‘What God has put together, let no man put asunder’: A s.21A challenge and the limits of Power of Attorney”; “Improving P’s quality of life pending a s.21A change in residence”; “Resisting Care: An unsuccessful s.21A challenge from a ‘feisty’ 94-year-old”; and “Inspired by Bournewood: A s.21A challenge and delay in the court”.
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