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The assumption of capacity the case of CC-v-KK [2012]

7 December 2012

This case serves as a useful reminder of one of the fundamental principle in the Mental Capacity Act – that a person must be assumed to have capacity unless it is demonstrated that she lacks it. It also provides a useful analysis of the current state of the law on deprivation of liberty.

Background

KK was a 82 year old lady who suffered from Parkinson’s and vascular dementia. She was living at her home with social services support. There was increasing concern over her vulnerability and susceptibility to falls.

Over a 6 month period between January and July 2011, it was recorded that she used the “lifeline” emergency call service on just under 1,100 occasions. She was admitted to a nursing home at the end of July 2011. Whilst there, KK consistently objected to staying in the nursing home and said that she wanted to return home.

Numerous capacity assessments in the context of a Standard Authorisation and subsequent court case concluded that KK lacked the capacity to make decisions about residence and care.

Did KK have capacity?

On the question of capacity, the court received written and oral evidence from KK herself.

The Judge was clearly impressed with KK’s evidence, which he described as clear and articulate. He commented that KK had an understanding of, and insight into her care and nutritional needs and that she was realistic as to her physical limitations.

The Judge warned against the “protection imperative” and the danger of professionals conflating the issues of capacity and best interests. There is a temptation to conclude that the person under review should place greater weight to physical, rather than emotional, security. It has to be recognised that different individuals may give different weight to different factors.

Another factor linked to this is the importance of ensuring, when assessing capacity, that the person has all relevant information. In KK’s case, the Local Authority had failed to identify what support would have been available to her had she returned home.

The choice which KK should be asked to weigh up was not between the nursing home and a return home with no or limited support, but between staying in the nursing home and returning home with all practicable support. KK should have had all the information relevant to the decision before it could be concluded that she does not have capacity in respect of that specific decision.

Also, when considering KK’s capacity to weigh up that  information, the Judge pointed to the fact it is not necessary for the person to understand every nuance and detail. The person simply has to weigh up the salient factors.  KK’s observation that “if I fall over and die on the floor, then I die on the floor” clearly impressed upon the Judge that she could do this. He held that the Local Authority had failed to prove that KK lacked capacity in respect of where to live.

Was there a DoL whilst KK was in the nursing home?

The answer to this was no. Whilst KK’s strong objection to the placement at the nursing home did point to a deprivation of liberty, there was no “continuous control” of her day to day activities. Neither restraint nor sedation was used, the door was not locked and with assistance, KK had free access around the nursing home. There were also no restrictions on contact.

KK’s life at the nursing home was also observed by the Judge to have “relative normality”. Her disability imposed a degree of restriction on her life in any event. Also, part of everyday was in fact spent at KK’s own home; a sign of normality which the Judge felt pointed away from a deprivation (as per P and Q v Surrey County Council)

Interestingly, there is no reference to the purpose and reason for the placement, factors which were considered of crucial importance to the question of whether or not there was a deprivation in Cheshire West and Chester Council v P and M. The case of Cheshire and has caused practitioners considerable difficulty since the judgment was handed down.

Indeed, the reliance the Court of Appeal in Cheshire placed on purpose and reason has since been thrown into doubt in the Strasbourg case of Austin and others v United Kingdom, in which the European Court of Human Rights said that “an underlying public interest motive…has no bearing on the question whether that person has been deprived of his liberty [and] the same is true where the object is to protect, treat or care in some way for the person taken into confinement”.

In KK, the Judge gave some guidance on how this circle might be squared given Cheshire is not due to be heard by the Supreme Court until autumn 2013. He suggests 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.” 

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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