The ability to choose: KK v CC

Deprivation of liberty cases in the Court of Protection raise important and difficult questions. How should a local authority decide whether someone lacks the capacity to make decisions about where they live? How should the wishes and feelings of an elderly person who wants to stay in her own home be balanced with the risks to her health and safety of doing so? When does requiring someone to live in a care home against their will amount to depriving them of their liberty?

Challenging times

A recent judgment, CC v KK [2012] EWHC 2136 (COP), provides useful guidance on how decision makers should assess whether an individual has the capacity to make decisions.

However, the judgment also highlights the difficulty of challenging a deprivation of liberty in the wake of the Court of Appeal decisions in Cheshire West and Chester Council v P [2011] EWCA Civ 1257 and P and Q v Surrey County Council [2011] EWCA Civ 190.

KK was an 82-year-old woman with Parkinson’s Disease and vascular dementia, who was also paralysed down her left side. In recent years, KK’s physical mobility had deteriorated and she had become dependent on care given at home by the local authority.

In July 2011, KK was admitted to a local nursing home for emergency respite care after a urinary tract infection. She was assessed as lacking the capacity to make decisions about her care needs and residence. From that time on, KK was not allowed to leave the nursing home, despite continually expressing a strong desire to return to her own home.

In August 2011, the local authority issued a standard authorisation under the Deprivation of Liberty Safeguards, in effect requiring KK to remain at the home. KK challenged the standard authorisation in the Court of Protection and the matter eventually came before the court in May 2012.

By the time of the hearing, KK had been assessed as lacking capacity to make decisions about her residence and care needs on seven occasions. All of the assessors took the view that KK did not understand the risks of returning home, and that she therefore lacked the capacity to make a decision about where she should live.

There were two issues before the court. The first was whether KK had the capacity to make decisions about her care and residence. If so, then KK could not be kept at the care home subject to the DoLS framework, and would be able to make her own decision to return home.

The second issue was whether KK was being, or had been, deprived of her liberty by being required to reside at the care home.

1. Capacity

Because in most proceedings the issue of capacity is not in dispute, there are very few reported cases which address the issue. Challenging capacity can therefore be difficult, particularly where there are a number of previous expert assessments which have all found that an individual lacks capacity. The judgment in KK sets out detailed guidance on assessing capacity which will be helpful in other similar cases.

First, the court emphasised that it is not necessary for the person being assessed to comprehend every detail of the issue at stake; the key question is whether they can “comprehend and weigh the salient details relevant to the decision”. Decision makers must bear in mind that different individuals give different weight to different factors in making a decision.

In KK’s case, her emphasis on the importance of returning home had led previous assessors to the conclusion that she was unable to weigh up the risks of the decision. However, the court took the view that the assessors had given excessive weight to their own views of the risks, and had not given sufficient consideration to KK’s own views of her care needs and how these could be met.

The fact that KK needed to be reminded to eat and drink regularly did not mean she lacked the capacity to make a decision about where to live.

Second, the question of whether a person has capacity is for the court to decide, on the evidence before it; expert assessments are simply one factor to be taken into account.

This has two important implications. It shows that it is possible to challenge a finding of lack of capacity, even where all previous expert assessments have been unanimous in their conclusions. In addition, it highlights the crucial importance of oral evidence from the person whose interests are at stake.

It is often easy for practitioners to forget that oral evidence can have a highly persuasive effect; in KK’s case, her oral evidence was the decisive factor which enabled the court to reject the previous expert assessments and find that she had capacity.

Third, the judgment highlights the risk that care professionals may be unduly influenced by the ‘protection imperative’ (the need to ensure the person’s physical safety and comfort), without considering emotional wellbeing.

Practitioners will be familiar with situations in which well-meaning care professionals act on the basis of fixed views about what course of action is best for the cared-for individual, and this can be the main obstacle to a return home from respite care. The danger is that capacity assessments can become conflated with consideration of what is in a person’s best interests.

In KK’s case, the court agreed that the previous capacity assessments had emphasised the need to keep KK physically safe in the care home and had given insufficient weight to her emotional needs.

KK’s evidence that “if I fall over and die on the floor, then I die on the floor” demonstrated that she understood and accepted the risks of returning home.

The judgment also highlights another important element which is often missing from many capacity assessments, namely the need to assist the individual in making a decision by offering detailed options. To help KK weigh up the potential risks of a decision to return home, it was necessary for the local authority to present details of the package of care and support which would be available.

The local authority’s failure to do this undermined the previous assessments of capacity and breached the statutory principles in the MCA 2005.

2. Deprivation of liberty

The courts have made a number of recent decisions which restrict the potential for successful deprivation of liberty challenges, culminating in the decisions of the Court of Appeal in P and Q v Surrey County Council [2011] EWCA Civ 190 and Cheshire West and Chester Council v P [2011] EWCA Civ 1257.

The judgment in KK demonstrates just how difficult it can be to succeed in a deprivation of liberty challenge in the wake of these cases.

At the time of the hearing, KK had been resident at the care home for ten months. She was allowed to visit her home for a few hours several times a week, although she was required to live at the care home for the rest of the time.

The court found that on at least one occasion when KK had said she did not want to return to the care home from a home visit, she had been ignored, and that staff at the care home exercised a large measure of control over KK’s care and movements. It was not in dispute that KK objected strongly to her residence at the care home and had done throughout her residence there.

Even though KK had capacity and had been kept in the care home for ten months against her will, the court found that KK was not deprived of her liberty.

KK’s physical disability meant that she would be subject to significant restrictions on her life wherever she lived. She was able to move around the nursing home and her door was not locked. It was a care home, not a type of institution associated with deprivation of liberty, and it was well run.

There was no evidence of “a significant degree of conflict” between KK and staff, and the fact that KK was able to visit her home during the day was a sign of normality.

Relative normality

Fortunately for KK, the court’s finding that she had capacity to make her own decisions meant that she could choose to return home permanently, and since the judgment she has done so.

However, the judgment is obviously problematic for others in the same situation. Of particular concern is that it confirms that, where an individual has physical disabilities which leave them dependent on others for care and mobility, the ‘relative normality’ analysis used in Cheshire West and P and Q means that they are highly unlikely to be able to show a deprivation of liberty unless a considerable degree of additional physical restraint is involved.

The judgment also suggests that a deprivation of liberty requires evidence of ‘significant conflict’ between an individual and a care home, over and above expressing repeated objections to living there. It is difficult to see how many care home residents can demonstrate such conflict, when they cannot physically leave the premises and their objections are simply ignored.

Permission to appeal has been granted in P and Q and Cheshire West and recent Strasbourg decisions in Stanev v Bulgaria,  DD v Lithuania and Kedzior v Poland may encourage a domestic change of approach. It is to be hoped that the Supreme Court takes a more liberal approach to the interpretation of deprivation of liberty.

Without a change of heart, the judgment in KK suggests that in the domestic courts challenging capacity may be more effective than challenging a deprivation of liberty.

Leonie Hirst is a barrister at Tooks Chambers and acted for KK www.tooks.co.uk/people/leonie_hirst