RB v Brighton and Hove Council  EWCA Civ 561 (Arden, Jackson and Fulford LJJ)
Mental capacity – deprivation of liberty
In June 2007 RB sustained a serious brain injury in an accident. He was treated for eight months in hospital and then transferred to a care home, S House. In 2011 RB ceased participating in rehabilitation programmes and proposed to leave S House. The staff at S House considered that RB was not capable of independent living. Because of his physical and mental disabilities he was likely to (a) resume his former chaotic lifestyle, including using alcohol to excess and (b) to suffer serious or fatal injuries in consequence.
The Council granted a standard authorisation pursuant to Schedule A1 to the MCA 2005. RB brought an application under s.21A MCA 2005 to terminate the standard authorisation. At first instance, District Judge Glentworth accepted that although RB’s wish to consume alcohol pre-dated his brain injury, he was unable to weigh up information to make a decision because of his brain injury, and was therefore in a different position to a non-brain injured alcoholic. It was in his best interests to remain in the care home despite his objections. On appeal, HHJ Horowitz refused to interfere with the District Judge’s reasoning and conclusion on either capacity or best interests. Before the Court of Appeal, RB argued that two preconditions for deprivation of liberty were not satisfied, namely the mental capacity requirement (set out in paragraph 15 of Schedule A1) and the best interests requirement (set out in paragraph 16 of Schedule A1).
In relation to the first ground, the core submissions were that:
- RB’s inability to control his drinking was the same now as it was before the accident. RB’s brain injury is not the cause of his propensity to injure himself through excessive drinking. Furthermore the judge erred in applying s.3(1) MCA 2005: the third of the specified skills, namely using and weighing information, does not and cannot be expected to come into operation when an alcoholic is considering whether to have a drink.
- Reliance was placed upon the fact that RB preferred S House to alternative accommodation which was offered at a place called V, and RB had capacity to make that decision.
- As a separate strand of arguement it was apointed out that by 2013 RB had ceased participating in rehablitation at S House. Therefore the "care and treatement" referred to in the mental capacity requirement could only be day to day personal care. RB was aware that he needed that. He had capacity to decide that he wished to receive that in a flat, rather than at S House
In relation to the second ground of appeal, the core submission was that the personal care which RB currently received could equally well be provided in a flat. The sole purpose of RB's detention at S House was to stop him drinking. It was therefore submitted that it was a misuse of the “best interests” provision to incarcerate an alcoholic so as to stop him drinking. On the evidence, it was submitted, there was no basis for concluding that detention in S House accords with RB's best interests.
These arguments were described by Jackson LJ (giving the sole reasoned judgment on behalf of the Court of Appeal) as “formidable.” In the course of his judgment, Jackson LJ observed that:
“40. The cases which arise for decision under Part 1 of the MCA (including the present case) tend to be acutely difficult, not admitting of any obviously right answer. The task of the court is to apply the statutory provisions, paying close heed to the language of the statute. Nevertheless, as judges tread their way through this treacherous terrain, it is helpful to look sideways and see how the courts have applied those statutory provisions to other factual scenarios. This has nothing to do with either the doctrine of precedent or the principles of statutory interpretation. The purpose is simply to see how other judicial decisions have exposed the issues or attempted to reconcile the irreconcilable.”
The judge went on to dismiss the submission made on behalf of RB that, as in the sphere of sexual relations, a decision (by an alcoholic) whether to have a drink is not one that generally involves a complex process of reasoning, and so the ability to use or weigh information should have little or no significance in assessing capacity in this context, noting that:
“64 […] What the court must do in the present case is apply the clear statutory provisions to the facts as found by the first instance judge, District Judge Glentworth. It is inappropriate for the court to start comparing the decision which RB wishes to make in this case with the decisions which other disabled persons sought to make in other cases.
65. That approach sucks the court into convoluted reasoning. It also drives up costs. There appear to be innumerable ‘capacity’ cases out there in the law reports and on the websites... If lawyers are going to trawl through previous cases looking for factual similarities or analogies and then debate these in their skeleton arguments, that will involve a substantial waste of costs and time.”
The Court of Appeal rejected RB’s case, holding that:
“70. The decisions which RB wishes to make require a process of using and weighing up relevant information. On the basis of the expert evidence and of the district judge's findings of fact, RB is not capable of carrying out that mental process. The difficulties which RB has in using or weighing information and making consequent decisions accord closely with the situation described in paragraphs 4.21 and 4.22 of the Code of Practice. RB is unable to appreciate and weigh up the risks which he will run if he resumes his former way of life and goes out on drinking bouts. Therefore, applying MCA section 3(1)(c), RB does not have capacity to make this decision.
The Court of Appeal went on to hold that all appropriate steps had been taken to assist RB to make a capacitous decision, and that it was clearly in his best interests to remain deprived of his liberty in the care home despite his objections.
81. Both the Council and the court are aware of RB's wishes, namely to live independently in the community. The MCA section 4(6)(a) requires both the Council and the court to take those wishes into account. I do so. Unfortunately it is not possible for the time being to comply with those wishes.
82. RB is not thereby condemned to a lifetime of incarceration without hope of release, as Mr Gordon submits. If only RB would continue to co-operate in rehabilitative programmes (as he did up until 2011) he may well become capable of independent living in the future. In order to comply with the MCA section 4(4), the staff at S House must continue to offer rehabilitation to RB and must encourage him to participate.
83. Without proper safeguards a regime of compulsory detention for medical purposes would be unacceptable, indeed Orwellian. However, the carefully drawn provisions of the MCA together with the reviewing function of the court ensure that the power to detain is not misused. In the present case deprivation of liberty is necessary in order to protect RB from seriously injuring himself. That must be in his best interests.”
This judgment is very significant in terms of the approach that is to be adopted by judges to the MCA 2005 and to the use of case-law to amplify the provisions of the statute. It is, clearly, correct that the starting point must be the plain words of the Act. However, almost every word in Sections 1-4 (in particular) is loaded with significance going far beyond the plain terms; especially given the seriousness of the consequences of a conclusion that a person lacks capacity in one or more domains, it is hardly surprising that both lawyers and in turn judges have sought to look sideways for assistance.
While it is certainly correct that judges in the CoP should not seek to strive to shoe-horn the very sensitive facts of one case into the ratio of another; we hope that this decision is not taken as a licence to abandon attempts to achieve consistency between decisions where such can properly be achieved. This would, apart from anything else, have a disastrous impact upon the already difficult task of bringing about understanding of the MCA 2005 outside the courtroom. The issue of capacity, in particular, is one in which, in the editors’ view, there both can and should be consistency of approach. It is far from obvious why a higher level of sophistication as regards the using or weighing of information should be required in relation to decisions about care, residence or contact, as compared to decision about whether to have a sexual relationship, or whether to marry. (See also the RC case covered in this newsletter, in which the ability to weigh information was held to be of little relevance where an individual had strongly held religious beliefs on an issue). Without a clear and consistent approach being taken to the often critically significant requirement of using or weighing information, there is a serious risk that the capacity bar will be set too high in spheres of decision- making in which the state has fewer qualms about intervening.