Capacity, contact, care and supported living

In the fifth substantive judgment in LBX v K and others [2013] EWHC 3230 (Fam), Mrs Justice Theis considers the ‘relevant information’ that needs to be understood to make a decision about supported living and care arrangements. Readers will be familiar with the important decision of the Court of Appeal which upheld one of the earlier judgments. The Court of Appeal’s decision ([2012] EWCA Civ 79) can be read here. Here, Theis J was asked to consider whether L, a young man with mild learning disabilities had the potential to achieve mental capacity to make decisions about residence, contact and some specific care decisions. Theis J agreed that the relevant information in making a decision between accommodation options was:

1. what the two options are, including information about what they are, what sort of property they are and what sort of facilities they have;

2. in broad terms, what sort of area the properties are in (and any specific known risks beyond the usual risks faced by people living in an area if any such specific risks exist);

3. the difference between living somewhere and visiting it;

4. what activities L would be able to do if he lived in each place;

5. whether and how he would be able to see his family and friends if he lived in each place;

6. in relation to the proposed placement, that he would need to pay money to live there, which would be dealt with by his appointee, that he would need to pay bills, which would be dealt with by his appointee, and that there is an agreement that he has to comply with the relevant lists of ‘do’s and ‘don’t’s, otherwise he will not be able to remain living at the placement;

7. who he would be living with at each placement;

8. what sort of care he would receive in each placement in broad terms, in other words, that he would receive similar support in the proposed placement to the support he currently receives, and any differences if he were to live at home; and

9. the risk that his father might not want to see him if L chooses to live in the new placement.

She considered it would ‘set the bar too high’ to add matters such as the cost of the placement and the value of money; the legal nature of the tenancy agreement or licence; and the relationship that L might have with his father in 10 or 20 years time if he lived independently now – this was outside the ‘reasonably foreseeable consequences’ of the decision. (para 44)

45. I agree also with the analysis of the Official Solicitor as to contact in para13 save for one matter. So I agree with the first one, who they are and in broad terms the nature of his relationship with them; secondly, what sort of contact he could have with each of them, including different locations, differing durations and differing arrangements regarding the presence of a support worker; and, thirdly, the positive and negative aspects of having contact with each person. This will necessarily and inevitably be influenced by L’s evaluations. His evaluations will only be irrelevant if they are based on demonstrably false beliefs. For example, if he believed that a person had assaulted him when they had not. But L’s present evaluation of the positive and negative aspects of contact will not be the only relevant information. His past pleasant experience of contact with his father will also be relevant and he may need to be reminded of them as part of the assessment of capacity.

46. In relation to the last aspect under contact, which is what might be the impact of deciding to have or not to have contact of a particular sort with a particular person, I think there needs to be some reference in there to family in that family are in a different category, and I will hear submissions in relation to adjustments to that aspect.

47. I agree also that in relation to contact the matters set out in para 14 are not relevant: abstract notions, like the nature of friendship and the importance of family ties, subject to the point that I have just made relating to recognising the family in the last of the agreed aspects; the long-term possible effects of contact decisions, for the reasons I have already given in relation to s3(4); and risks which are not in issue, for example, those mentioned by Dr Hall, such as the risk of financial abuse.

48. Turning to care, again, I agree with the matters itemised in para 15 as being the relevant information, namely, what areas he needs support with, what sort of support he needs, who will be providing him with support, what would happen if he did not have any support or he refused it and, lastly, that carers might not always treat him properly and that he can complain if he is not happy about his care, I agree in relation to the information in para 16 that it is not relevant, that is how his care will be funded, and how the overarching arrangements for monitoring and appointing care staff work.

She endorsed the approach of one of the experts Ms Whittaker, an independent social worker instructed to carry out a best interests assessment but whose approach allowed her to provide valuable views as to L’s potential to achieve capacity. Ms Whittaker had used tangible aids such as drawings, which, as Theis J noted, could assist L in making a decision himself. This approach resonated with MCA 2005 s1(3) and the UN Convention on the Rights of Persons with Disabilities (CRPD) Article 12(3) which states:

States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.