I’ve come across a few cases recently where a key issue has been P’s alcohol consumption and their behaviour when drunk. It’s a tricky area that we have had some difficulty navigating, so it seemed like a worthwhile topic to write about.
The first example concerns A, a middle-aged man with an acquired brain injury to which alcohol consumption was a contributing factor. A lives in a care home, but is permitted free access to the community during the day. He is not permitted to bring alcohol into the home, and medical advice is for him to refrain from alcohol consumption. There are risks that he will sustain further brain damage if he drinks alcohol and he’s at high risk from falls if he is intoxicated. He wants to drink alcohol when in the community.
The second example concerns B, a young man with mental health issues arising from an attachment disorder and childhood trauma. When well, B displays significant insight and contemplates his future in some detail. But if presented with any situation that he finds stressful, he tends to become impulsive, seeking out friends and alcohol and drinking in excess. Whilst intoxicated, he attempts self-harm and expresses suicidal ideation. This has a significant impact on his care and support.
Neither man is particularly jovial or pleasant when drunk, presenting challenging behaviour that support staff have found difficult to manage.
The approaches taken in both these cases demonstrate some significant challenges. There are, in essence, three schools of thought displayed.
The first is to assess capacity to make decisions about care and support separately from decisions around alcohol consumption. This is what A’s social worker has done, and they’ve concluded that he has capacity to make decisions about alcohol consumption, but not about his care and support. So care and support decisions are made in his best interests, but A makes his own decisions around alcohol consumption. He has consented to controls in the past, by agreeing not to drink more than a specified amount so he is not presenting as challenging when he returns. If he breaks these rules, then his access to money is to be limited.
These controls are in place with his consent. But, as we all know, consent can be withdrawn. So when A is feeling so inclined, he says he doesn’t agree and wants more money when he goes out. Now there is a side issue of whether A has capacity to make decisions about his finances, which hasn’t been thoroughly explored for reasons that I confess to not really understanding. This one isn’t my case, but I have provided cover my colleague whilst they’ve been on leave so I’ve had some involvement with it.
But in any event, this approach appears to make sense, initially, but has created a bit of a mess in practice. It would have been even more of a mess if the capacity assessment outcomes had been reversed so that he could make decisions about his care but not his alcohol consumption, since any measures to control his alcohol consumption would have needed to form part of his care package and, thus, could not be implemented without his consent. But even as it stands the arrangements are not sustainable in the real world, since it’s difficult to pick decisions out and place them in these 2 separate categories.
Now the second school of thought, which is the approach I initially advocated for when my colleague who is dealing with A’s case rang me to discuss it, is to consider the link between these two decisions. You see, A’s care provider are threatening to terminate his care contract if a more sustainable way to manage his behaviour is not identified. This is also something B’s care provider has mentioned as a possibility.
Going back to s3(4) Mental Capacity Act 2005, A should be assessed as lacking capacity to make decisions about his alcohol consumption if he is unable to understand, retain, use or weigh information as to the likely consequences of his decision. And whilst he is able to understand and use information as to the fact that if he gets drunk he might fall or have a negative interaction with a member of the public, he isn’t able to understand the risks of further brain damage. And he is unable to understand the risks if this placement breaks down, because he seriously underestimates his care needs and has an unrealistic perception of his own abilities.
This would seem to warrant further assessment at the very least, and there is an arguable case that A does not have capacity to make either of these decisions, meaning more controls could be put in place in his best interests, without requiring his consent, and then his consent could not be withdrawn.
In progressing the case of B, we are instructing an independent expert to assess his capacity to make relevant decisions. The local authority, following the same train of thought as A’s local authority, sought to instruct the expert to assess care decisions and decisions related to alcohol consumption separately. In doing so, they quoted the PB case which discussed this issue.
Unfortunately, the approach that is actually approved in that judgement is to focus on the decisions related to care and residence, rather than alcohol consumption as a separate domain, even an interlinked one as I initially proposed in A’s case. It is still very much an open question at the moment, but the formulation on that case is helpful in circumstances such as A and B. In both cases the court is being asked to decide what care and support arrangements are in their best interests, as well as residence arrangements. Both men are living in accommodation that has in place some rules about alcohol consumption and this is, at least in part, aimed at ensuring their care and support packages continue to be effective. The measures to restrict their access to alcohol form part of their care and support packages. So separating the decisions out does nothing except confuse matters and create situations that whilst sensible in theory, are not workable in practice.
So in B’s case, what we have done is ask the expert to assess his capacity to make decisions about his care and residence, including consideration of the impacts alcohol consumption may have on these decisions. This certainly fits with s3(4), assuming that breakdown of the placement is a reasonably foreseeable consequence of the decisions being made which is particularly relevant in A’s case.
It also aligns with the principle of being decision-specific, providing the court is looking at decision-making in the real world, which it strives to do, rather than undertaking a theoretical exercise.
Which, incidentally, is why this area of law is so fascinating to me, because the real world problems being grappled with are always so delightfully messy.
In case it isn’t obvious from the fact I still haven’t identified the authority I worked for, or the organisation I now work for, the views expressed on this blog are my own opinion and not the opinion of that local authority or organisation