Capacity to make decisions on care and alcohol dependency

The case of Tower Hamlets v PB [2020] EWCOP 34 came before Judge Hayden and concerned PB, a 52-year-old man who suffered from serious health concerns coupled with a history of long-term alcohol misuse. PB was in the care of the local authority and given his dependence on alcohol in the past, he was permitted to have a trial period where he was allowed to drink limited amounts of alcohol on a regular basis.

Unfortunately, during the trial period, PB left the property on occasion and returned drunk, whereupon he became abusive to carers.

A Consultant Psychiatrist undertook a capacity assessment and reached a conclusion of capacity in respect of care and residence. The psychiatrist felt could that PB was able to rationally explain his intention to drink in moderation, could confirm that he understood the need to drink in moderation and the risks to his health, and even potential death if he failed to drink moderately.

The Consultant Psychiatrist subsequently changed his opinion on the basis that PB did not understand that he was unable to control his drinking in practice.

Judge Hayden rejected the expert’s approach because it placed weight on the balance between capacity and unwise decisions (s1 and s3 MCA 2005). The Judge stated that the psychiatrist could not decide that PB lacked capacity simply because he was making an unwise decision.

Further, the Judge said that an expert cannot say that PB lacked the ability to use and weigh information if he was simply applying his own personal values to the decision in question.

The Judge approved the local authority’s approach which was that the decision regarding capacity should not focus on PB’s ability to make decisions around care and support but whether he understood the impact his continued drinking could or would have on that care and support and the risks and consequences heavy drinking could have (including death).

Judge Hayden found PB to be articulate and rational in his comprehension in respect of alcohol consumption, including the risks to his health. PB was able to show that he understood that he needed to moderate his drinking.

Notwithstanding, his history showed that it might not be possible for PB to limit his drinking but that is not enough in itself to rebut the presumption of capacity. There was not enough evidence before the court to justify the interference in his life.

The Judge declined to provide general guidelines for other substance abuse cases and stated that each case would turn on its own facts. However, as a general rule, local authorities should always aim for the least restrictive and lightest touch approach for the shortest time period.

There were several key points arising from the case including:

• If an individual has capacity to make decisions around care and residence, and is content to remain in the placement while being able to access alcohol to some degree, local authorities may feel that they have no other option than to let that individual take risks with their health that the local authority is uncomfortable with.
• The real question is the extent to which alcohol consumption affects the individual’s capacity to make decisions in other areas of their life. Capacity assessments should consider the individual’s ability to understand, use, retain and weigh information about the consequences of their alcohol consumption and how that affects their decision making in other key areas, including care and support. The effect on their health and potential risk to their life will be part of that consideration.
• If an individual cannot understand, use, retain and weigh information because of their dependency on alcohol, it is likely that they will lack capacity to make those decisions. However, where the individual does clearly understand the risks to their own health presented by their use of alcohol, it is likely to be found by courts that they will have capacity to make decisions about care and support. This will apply even where an individual does not have a realistic view about how they will moderate or manage their drinking. As long as the individual has an understanding of the risks posed by heavy drinking, although the decision may be classed as an unwise one, it does not mean that they necessarily lack capacity to make it.

This could have significant consequences for local authorities responsible for providing care and support where a person has a history of alcohol dependence.

If that person is able to state clearly and rationally that they understand the risks to their health, however severe, it is likely that the local authority will be unable to prevent that person having access to alcohol.

In each case, the way the dependence and use of alcohol affects the person’s decision making in other areas of their life will need careful assessment, most likely by an expert with specialist knowledge of alcohol misuse.

Laura Wares is a trainee solicitor at Invicta Law.

Invicta Law’s Community Care team can assist with advice in respect of capacity assessments and adult social care generally. Get in touch with Kerry Short for more information or call 01622 392000.