Courts have no jurisdiction over "unwise" decisions where subject has capacity

That ruling from the Honourable Mr Justice Hayden, vice president of the Court of Protection, in a case brought against the London Borough of Tower Hamlets by PB though his litigation friend, the Official Solicitor.

PB has a lengthy history of serious alcohol misuse and has alcohol-related brain damage and a 'dissocial personality disorder’, together with physical co-morbidities, including hepatitis C and HIV.

His application concerning the restrictive accommodation in which he is placed came before DJ Eldergill in January who thought it presented complex issues which might need guidance from a higher court.

Hayden J said he had to determine whether PB has capacity to conduct this litigation and/or make decisions relating to where he lives and the care he receives; and if he lacked capacity whether his current care and accommodation provision were in his best interests.

This included the restrictions aimed at preventing PB from gaining access to alcohol, “which he strenuously resents”.

Hayden J said that at the core of Mental Capacity Act 2005 was “a central distinction between the inability to make a decision and the making of a decision which, objectively, would be regarded by others as unwise.

“Fundamentally, the Act emphasises the right of the individual, in exercising his or her personal autonomy, to make bad decisions even extending to those with potentially catastrophic consequences.”

After returning to the accommodation apparently drunk on several occasions, PB was examined by a Dr Costafreda who concluded PB lacked capacity to make decisions about his residence and care on the grounds that he did not accept recent episodes demonstrated beyond doubt that he was unable to control his drinking, making it certain he would continue to drink to excess if he is not supervised.

The judge said: “It strikes me as imposing a very challenging test of capacity to expect an alcoholic, who continues to drink, to be required to concede or acknowledge ‘beyond doubt' that he is unable to control his drinking and to such a degree that it has become a ‘certain' fact that he will drink to excess if not supervised.

“A test which is so absolute and unyielding is difficult to reconcile with the fundamental principles of the MCA. The effect of such a test strikes me as eroding, very significantly, ‘the space’…between a decision which is unwise and one which an individual does not have the capacity to take.”

He said Dr Costafreda's test would if applied widely “have the alarming effect of rendering most addicts incapacitous if they are unable to agree with the precepts of the test whilst, to my mind, making a deprivation of liberty almost inevitable to those who are able to agree 'beyond doubt’ that they are ‘certain’ to drink to excess. Thus, a paradigm Catch-22 scenario is created.”

DJ Eldergill had asked the court how to approach the assessment of capacity of individuals who are alcohol dependent and whether the Mental Capacity Act 2005 should be used coercively to prevent people who are alcohol dependent from gaining access to alcohol.

Hayden J said it was not possible for him to give prescriptive guidance, but said the word ‘coercively’ made him “uncomfortable with the terminology used”.

He said: “Coercion has pejorative implications, it implies persuasion by use of force or threats. As such it has no place in the Court of Protection and jars entirely with the applicable principles of the MCA.”

If PB had capacity “then manifestly the Act does not apply.”, but if not facilitating compliance with a regime to which he is opposed “will always involve the lightest possible touch, the minimal level of restraint or restriction and for the shortest period of time.

"In other words, the level of intervention must be proportionate. I am entirely confident that this balance is what DJ Eldergill was contemplating.”

He added: “The healthy and moral human instinct to protect vulnerable people from unwise, indeed, potentially catastrophic decisions must never be permitted to eclipse their fundamental right to take their own decisions where they have the capacity to do so. Misguided paternalism has no place in the Court of Protection.”