London Borough of Tower Hamlets v PB [2020] EWCOP 34

In this matter the Court of Protection provided further clarification on the balance to be struck between an individual’s autonomy to make unwise decisions and finding that the individual lacks capacity to make a decision.

Background

PB has been described as being ‘stubborn, uncompromising and … direct’. PB has suffered from a heavy dependence on class A drugs and alcohol. PB realised that his drug consumption would lead to his death and therefore he decided to stop taking drugs. However, PB’s alcohol dependency continued to the extent that a number of relationships with his accommodations (mostly hostels) would regularly breakdown. PB was evicted from one accommodation in February 2019 and thereafter was homeless for 3 months. This took a heavy toll on PB’s health which culminated in PB suffering a serious hypoxic event in May 20109. PB remained in hospital for three weeks before being discharged to a specialist supported living placement.

PB’s placement included a care package designed to restrict PB’s access to alcohol. This was very strict at first with PB not able to leave unescorted. The restrictions had previously been authorized by a number of orders made in September 2019. A trial was initiated to provide PB with 2 hours where he was unescorted outside of the placement. Unfortunately, the trial was not successful as PB returned late on numerous occasions and was found to have vomited and urinated in his bed in December2019 as a result of alcohol consumption.

Decision to be made

The Court was faced with ascertaining whether PB had capacity to make decisions in respect of his residence and care. PB appeared to demonstrate an understanding that if he was to drink to excess, then his placement would be under threat due to his extremely challenging behaviour.

The assessment undertaken of PB’s capacity set a very challenging test as it required PB, an alcoholic, who continues to drink, to be required to acknowledge ‘beyond doubt’ that he is unable to control his drinking and that as a result it has become a certain fact that he will drink to excess if unsupervised. The Court acknowledged that this test was set a very high level and did not respect the ‘space’ between a decision which is unwise and one which an individual does not have the capacity to take.

The Court considered this ‘space’ and also the comments made by PB. These included that he wished to moderate his drinking, whilst at the same time acknowledging that drinking to excess could jeopardise his placement.

The Court found that ‘Here, an appreciation of and sympathy towards PB’s vulnerability and the entirely accurate recognition of his parlous situation, strikes me as having cast a shadow over the forensic rigour required in an assessment…The imperative, in these circumstances, is not paternalistically to protect PB’s health and welfare but to respect his autonomy. PB’s desire to live where he is presently based, but on his own terms, strikes me as consistent with his recognition of his limited options.’

The full judgment can be read here.

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