Briefing 236

July 2018

Mental Capacity Act 2005: Summary of Royal Borough of Greenwich v CDM [2018] EWCOP 15

Introduction

After assessing CDM to lack capacity on a range of matters, the Royal Borough of Greenwich applied the Best Interests principle and placed her into a nursing home. This decision was made against CDM’s wishes and the Local Authority thus bought proceedings to the Court of Protection.

The Local Authority sought the following declarations:

  • CDM lacks capacity to conduct proceedings;
  • CDM lacks capacity to make decisions about residence;
  • That CDM should be accommodated permanently in the current placement;
  • CDM lacks capacity to make decisions about care and treatment, or has fluctuating capacity only;
  • CDM has fluctuating capacity to make decisions about property and affairs; and
  • CDM lacks capacity to make the decision to surrender the tenancy of her previous home.

This case is significant because it explores the complexities around fluctuating capacity, in particular the weight that is given by the Court to the person’s wishes and feelings.

Background

Before moving to the placement CDM lived in a bungalow, where she had been for many years. Her husband died in 2014 and since then she had been on her own, aside from 3 dogs and a cat that CDM refers to as “her babies”.

CDM has multiple health conditions, including Type 2 diabetes for which she requires daily insulin injections and a controlled diet. CDM also has hypertension, Chronic Obstructive Pulmonary Disease and her lower right leg is amputated. The leg amputation took place in May 2017 after a toe amputation became infected and gangrene set in.

The toe amputation was a direct result of CDM’s self-neglect around the management of her diabetes, and the leg amputation occurred because CDM continued to self neglect and did not comply with healthcare professionals treating her toe amputation.

Whilst at home CDM had up to four domiciliary care visits each day and the District Nurse also visited daily to administer the insulin injections. She complied with the District Nurse but refused to take other medication or accept advice. She also refused entry to carers at times and made frequent allegations against them, meaning that they always attended in pairs.

In the months before CDM was placed she suffered a number of diabetic comas, falls and frequent hospital admissions. She also declined further hospital admissions against the advice of the ambulance service attending. She was sleeping on the sofa or in her wheelchair, refusing to use mobility equipment, refusing to use her commode, refusing to take some of her medication, continuing to self neglect and had difficulty cleaning up after her animals.

During a hospital admission in September 2017 concerns about CDM’s capacity grew and a social worker carried out a mental capacity assessment on the ward. This deemed CDM to lack capacity on a number of matters and a decision was made in her Best Interests that she should not return home.

CDM was discharged from hospital into a nursing home in October 2017 and in November the Local Authority issued the Court application.

In January 2018 the Court instructed Dr Series, a Consultant Old Age Psychiatrist to assess CDM’s capacity and during the course of this he reaffirmed a diagnosis made in 2017 that, as well as her physical disabilities CDM also had a personality disorder.

CDM moved to another placement in April 2018 and 2 of her dogs were permitted to live with her. The other dog and cat were housed elsewhere.

CDM’s View on Her Own Capacity

CDM, through the Official Solicitor submitted written evidence to the Court about each of the declarations being sought by the Local Authority.

CDM agreed with the Local Authority that she lacked capacity to conduct proceedings, but on every other matter she stated that she had capacity to make all necessary decisions.

CDM also wished to give oral evidence in Court and was enabled to do so by the Judge. During her oral testimony CDM said that she has capacity, apart from times when she is hyper-glycaemic.

Other Views on CDM’s Capacity

The Local Authority

Since the initial application to the Court was made the Local Authority now felt that CDM lacked capacity on all matters. The social worker who assessed CDM’s capacity explained that following the leg amputation in May 2017 her capacity had diminished, and what was previously deemed to be unwise decision making had crossed the line because CDM had lost the ability to weigh up relevant factors. The social worker felt that CDM only had capacity to make simple decisions, such as what to wear or eat. 


Dr Series

Dr Series had a different view to the Local Authority on three of the six matters to be decided. He deemed CDM to have fluctuating capacity (as opposed to lacking capacity entirely) in the following areas:

  • To make decisions about being accommodated in the care home;
  • To decide on care or treatment;
  • To manage finances.

Dr Series told the Court that fluctuations in CDM’s blood sugar levels would impact on her cognitive ability and that her personality disorder would also sometimes prevent her from being able to weigh up risks and benefits or to understand and retain information.

CDM’s Wishes and Feelings

CDM’s only wish was to return home to be with “her babies”. During her oral testimony she said “my home is my life. It is everything we put together. It is almost as if they have erased me completely”.

CDM went on to make allegations of physical, mental and sexual abuse against hospital staff and carers and accused professionals of using the Mental Capacity Act to stop her going home simply because they did not want her back at home.

The Judge described CDM as fiercely independent, articulate and determined. 

The Judgement

The Judge, the Honourable Mr Justice Cohen concluded the following:

  • CDM lacks capacity to conduct proceedings;
  • CDM lacks capacity to make decisions about residence;
  • CDM lacks capacity to make decisions about her current placement;
  • CDM has capacity to make decisions about care;
  • CDM has fluctuating capacity to make decisions about treatment;
  • CDM has capacity to make decisions about property and affairs; and
  • That CDM lacks capacity to make the decision to surrender the tenancy of her previous home.

The Judge went on to authorise CDM to remain in the current placement and be deprived of her liberty.

A further hearing is to be held in which a decision is to be made about how to manage those decisions that CDM has fluctuating capacity to make, and to consider what is in her Best Interests long term.

The Judge made his decision because CDM had been unable to demonstrate an ability to consider or acknowledge the existence of any risks at all associated with returning home. The Judge recognised how strongly CDM felt but because of the extreme nature of the risks he concluded that if CDM had capacity she would have weighed them up and not ignored them.

Further Reading

To read the full judgement, go to http://www.bailii.org/ew/cases/EWCOP/2018/15.html

 

 

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