Irascible does not mean incapable – Court of Protection
10 April 2014
Wandsworth Clinical Commissioning Group v IA (By the Official Solicitor as his Litigation Friend)  EWHC 990 (COP) 3 April 2014 – read judgment
This was a case about determination of mental capacity, which both judge and counsel described as “particularly difficult and finely balanced”. The judge was confronted with a great deal of conflicting evidence about the capabilities of the individual in question, but concluded in the end that
His capacity may be seen to have fluctuated in the past; this is in my judgment more likely to be attributable to transient cognitive dysfunction due to metabolic reasons as a result of his physical illness … than the progression of symptoms of his acute brain injury.
IA is a 60 year old man from a professional family and himself a physics graduate who once ran his own business. But his life has been eroded by extremely poor health, Type II Diabetes and related disabilities such as anaemia and partial blindness. Then in 2007 he was the subject of a violent criminal assault, being repeatedly kicked in the head, leaving him with a serious head injury, involving skull fractures, brain haemorrhage and contusions to the right frontal area of the brain.
In 2007 (before the assault) a Compulsory Purchase Order was served on his house because of its poor upkeep and decrepit state. After this, IA drifted from temporary accommodation to hotel room and back again, under the auspices of his local council. Since 2013 he has been an in-patient at one of London’s major teaching hospitals. On the whole, he was receptive to the care offered but there were problems, as Cobb J notes from the evidence. IA had “fluctuating compliance” with personal care, care of leg ulcers and medication (influenced by his personal opinion of the staff member providing treatments and his mood at the time). Generally, his acceptance of diabetic and blood pressure medications, and compliance with medical treatments on the whole, “fluctuated with mood”.
On the other hand, he always accepted dialysis when offered and appeared to be able to retain, process and weigh information regarding his medical condition and treatment and the potential consequences of non-compliance.
Wandsworth CCG had filed a detailed care plan setting out its proposals for IA’s post-discharge care. In the event that IA was found not to have capacity to make decisions about his future care, this plan was urged upon Cobb J as representing his ‘best interests’ (within a determination under section 4 of the Mental Capacity Act 2005). The essential elements of the plan addressed issues of mobility, nutrition, personal care, incontinence, wound care and medication.
Proceedings in the Court of Protection
In making his determination, Cobb J bore in mind that the fact that IA had suffered head injury did not of itself establish lack of capacity, although injury is of course part of the “diagnostic” test for capacity. In other words, he had to consider whether any inability of IA to make a decision was because of an impairment of or disturbance in the functioning of his mind or brain.
The judge noted that a “strong body of professional opinion” had built up over the years establishing the view that IA did indeed lack capacity to make decisions in a number of key areas of his life. Most of these opinions had been reached on paper, due to the fact that IA had not cooperated sufficiently to meet the professionals involved. Other experts – notably the neurosurgeon with whom IA had cooperated – were of a different opinion, testifying to his competence in making decisions about his care, accommodation and the litigation in hand. These experts were also of the view that IA should be moved to a community placement as soon as possible, since he was needlessly occupying a “much needed bed in a busy ward”. Notably, IA’s neurologist did not regard the brain injury received in the 2007 as resulting in a “static” condition.
The Court’s decision
Cobb J concluded that, although IA had made a number of “unwise decisions” in the past about his medical treatment and home living conditions, these were not demonstrative of lack of capacity. They were more reflective of his “somewhat challenging personality” and in any event predated his acute brain injury and could not therefore have been attributable to acquired cognitive deficit. In these life-changing capacity determinations, a line should be drawn between incapacity and mere cussedness:
Medical assessment of IA (both as to capacity and other matters) and treatment of IA has been complicated by the fact that he can be (as described by the various experts) challenging, assertive, impulsive, articulate, proud, disinhibited, determined to get his own way, capricious, argumentative, and outspoken. [para 72]
The lack of wisdom in some of IA’s decision making was probably due to his anxiety to leave hospital. As the judge explained, he was frustrated by the lack of progress in these proceedings and probably felt “a degree of helplessness” at not being able to play a more active part in the proceedings.
I believe that some of his more angry outbursts, and his dogmatic pronouncements about the future recently have been provoked by his frustration at his current situation.[para 76]
As to his inconsistency of view about his future care being evidence of lack of ‘retention’ of information; this had more to do with his frustrations at his current situation, ” underscored with a hefty degree of suspicion of authority.”
In short, IA’s “dogged determination to live in his own home”, and his suspicions of efforts to place him elsewhere, were neither of themselves or together reasons to reach a determination of incapacity. The judge’s determination on capacity effectively brought these proceedings to an end. This, he noted, would “doubtless be a relief to IA and his family”.
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