The recent Court of Protection judgment in the case of CC v KK and STCC is a very useful and detailed analysis of the approach to be taken when addressing capacity issues. This is also one of few cases where the Court has disagreed with the consensus of expert and professional opinion in relation to capacity.

KK was an 82-year_old lady, suffering from vascular dementia, Parkinson’s Disease and paralysis of her left side. The Local Authority had taken the view that she lacked capacity and it was in her best interests to be placed in a nursing home. Initially her deprivation of liberty (DOL) was authorised, however, once trial visits to her own home commenced subsequent requests for authorisation were refused on the basis that there was no DOL. By the time of the final hearing, KK was spending part of every day visiting her own home.  

She had challenged the standard authorisation and had always expressed a strong wish to return home.  

Contrary to the unanimous views of the independent expert psychiatrist and all professionals involved, the Court agreed with KK that she had the capacity, at present, to make decisions regarding her residence and care.  

The decision helpfully sets out the approach that courts should follow when addressing questions of capacity:  

  • The court must make the final decision in relation to the person’s functional ability after considering all of the evidence, not merely the views of the independent expert
  • Professionals and the court should not be unduly influenced by the perceived need to protect the vulnerable adult (the “protection imperative”), but instead any assessment of capacity must be detached and objective
  • The person need only be able to comprehend and weigh up the salient points relevant to their decision and not necessarily all of the peripheral details
  • Different individuals may give different weight to different factors. This does not necessarily mean that an individual lacks capacity
  • Capacity assessors must not start with a blank canvas. Instead the person must be presented with detailed options so that their capacity to weigh up the options can be fairly assessed  

In this case, whilst KK underestimated some of her needs, she did not do so to an extent that would suggest that she lacked capacity to weigh up information.

In relation to the DOL the court decided that she was not being deprived of her liberty before the introduction of home visits and, once she was able to go home on a daily basis, the circumstances fell well short of a DOL.  

It was KK’s disability itself which imposed a degree of restriction on her life and it was not considered that the circumstances of her placement in the nursing home significantly added to that restriction.  

Pending the determination by the Supreme Court of the appeals in the cases of P and Q and Cheshire West, the judge noted that there is currently some uncertainty on the future interpretation of the DOL provisions. However, he said that “the right course is to have regard to the purpose for a decision as part of the overall circumstances and context, but to focus on the concrete situation in determining whether the objective element is satisfied.”

Whilst KK was completely dependent on others for her care and treatment, when considering the “relevant comparator”, anybody with the same disability would experience a significant physical restriction on the life that they are able to lead. There was no suggestion that the manner in which KK was cared for in the nursing home was significantly more restrictive than if she were to live at home in her bungalow.  

Overall it was concluded that the arrangements for her care could not be described as continuous control and KK had not lost a significant level of personal autonomy as a result of her residence at the nursing home.  

Since the joint appeals of Cheshire West and P and Q are unlikely to be heard by the Supreme Court until well into 2013, it is anticipated that the approach of Mr Justice Baker in this case is likely to be followed in similar cases in the interim.