Chapter 23 – Residence Capacity




Abstract




Residence capacity can be defined as the capacity someone requires to decide where to live. Its assessment is important in a variety of mental disorders. In this chapter we shall mainly focus on dementia, but the nature and requirements for assessment would largely be similar across all conditions. We shall also focus on the relevant law as it pertains to England and Wales, that is, the Mental Capacity Act (MCA), although, again, the nature of residence capacity and the principles for its assessment remain similar across jurisdictions.





Chapter 23 Residence Capacity Its Nature and Assessment


Julian C Hughes , Marie Poole , Stephen J Louw , Helen Greener and Charlotte Emmett



Introduction


Residence capacity can be defined as the capacity someone requires to decide where to live. Its assessment is important in a variety of mental disorders. In this chapter we shall mainly focus on dementia, but the nature and requirements for assessment would largely be similar across all conditions. We shall also focus on the relevant law as it pertains to England and Wales, that is, the Mental Capacity Act (MCA), although, again, the nature of residence capacity and the principles for its assessment remain similar across jurisdictions.



Why Is Residence Capacity Important?


There are at least three reasons why residence capacity is important. First, we all love being at home. The place we call ‘home’ is usually surrounded by emotional resonances and is where we feel rooted and safe. The emotional importance of home was recognized by Mr Justice Baker in the Court of Protection when he said:



There is, truly, no place like home, and the emotional strength and succour which an elderly person derives from being at home, surrounded by familiar reminders of past life, must not be underestimated.1


Going further than this, the philosopher and clinician Wim Dekkers has argued that ‘being human is to dwell’.2 According to the philosopher Heidegger, for instance, we build ‘because we dwell, that is, because we are dwellers’.3 Thus, the notion of being at home is existential: it is part and parcel of what it is to be a human being in the world. So, assessing a person’s capacity to make decisions about where to live has fundamental significance.


Second, if a person lacks residence capacity he or she is at increased risk of institutionalization. In people with dementia admitted to a medical ward, the finding of a lack of residence capacity is likely to lead to subsequent placement in a care home.4


Third, residence capacity is by no means as straightforward as some other capacities. This is because the nature of home – the place where I dwell – is complex. It means different things to different people. In weighing matters up, for instance, how much weight should be given to my insistence that this is the place I have lived with my spouse for 45 years, against your concern about my ability to cope and the risks I face? In connection with judgments about residence capacity, there is likely to be a variety of diverse and sometimes conflicting values at play.5 The complexity around these value judgments means that the assessment of residence capacity is often not straightforward and can require considerable skill.



Background


Whereas some types of capacity, such as testamentary capacity, involve specific tests,6 and whereas tools have been developed to assess other capacities,7 residence capacity has been relatively ignored in the literature, despite its importance.5


Ripley et al. developed an algorithm to assess capacity to enter a care home that conforms with the principles outlined in the MCA,8 but we need to turn to the Act itself, in combination with its principles, for best guidance. In England and Wales, the MCA established in statute law a definition of incapacity which leads to a two-stage test: first, the person must have an impairment or disturbance of the mind or brain; secondly, they must be unable (on account of the impairment or disturbance) to make the required decision, as shown by an inability to understand, retain, use or weigh the relevant information or to communicate the decision (see section 3 of the MCA). The principles in section 1 of the MCA (see Box 23.1) establish the legal context for judgments about residence capacity in England and Wales.




Box 23.1 Section 1 of the Mental Capacity Act 2005: Some of the principles



(2) A person must be assumed to have capacity unless it is established that he lacks capacity.


(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.


(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.



To return to the difficulties that stem from the need for evaluative decisions, it can be seen that my insistence on remaining in my spousal home, despite the risks that the professionals have highlighted, might be regarded as a failure to weigh things up adequately owing to my mental disorder (in which case I lack capacity), but might alternatively be regarded as simply an unwise decision. In the context of the MCA, therefore, we are immediately struck by the importance of values-based judgments.9 But there is also relevant case law.



The Case of JB: Consent to Treatment


In Heart of England NHS Foundation Trust v JB [2014], Mr Justice Jackson considered the case of a 62-year-old lady named JB.10 The decision concerned amputation of her lower leg because of gangrene. Her putative lack of capacity was said to stem from her diagnosis of chronic paranoid schizophrenia. Although the capacity under consideration was the capacity to consent to treatment, Justice Jackson made a number of comments pertinent to assessment of residence capacity.


For instance:



The temptation to base a judgement of a person’s capacity upon whether they seem to have made a good or bad decision, and in particular upon whether they have accepted or rejected medical advice, is absolutely to be avoided. That would be to put the cart before the horse or … to allow the tail of welfare to wag the dog of capacity. Any tendency in this direction risks infringing the rights of that group of persons who, though vulnerable, are capable of making their own decisions. Many who suffer from mental illness are well able to make decisions about their medical treatment, and it is important not to make unjustified assumptions to the contrary.11


Justice Jackson went on to make the following point, which is also relevant to residence capacity:



What is required here is a broad, general understanding of the kind that is expected from the population at large. JB is not required to understand every last piece of information about her situation and her options: even her doctors would not make that claim. It must also be remembered that common strategies for dealing with unpalatable dilemmas – for example indecision, avoidance or vacillation – are not to be confused with incapacity. We should not ask more of people whose capacity is questioned than of those whose capacity is undoubted.12


So, too, decisions about change of residence in connection with dementia often invite avoidance and vacillation because the thought of moving into care is unpalatable. Later, the judge said of JB:



Her tendency at times to be uncommunicative or avoidant and to minimise the risks of inaction are understandable human ways of dealing with her predicament and do not amount to incapacity.13


Again, people with dementia or an intellectual disability (learning disability) might well, on account of their mental difficulties, be less than communicative and might minimize risks. However, these traits do not in themselves prove that they lack the requisite capacity and the burden of proof lies with those who wish to say that they do; otherwise capacity must be assumed (see Box 23.1). The case of JB, therefore, offers pertinent guidance in relation to residence capacity assessments.



PC & NC v City of York Council [2013]


This case concerned a 48-year-old married woman (PC) with a significant learning disability and whether or not she had the capacity to decide to go to live with her husband (NC).14 An important issue was that NC had been imprisoned for 13 years for serious sexual offences (which he denied), although there was no evidence that PC had ever suffered serious harm from NC, who was now released from prison on licence. The case raised a number of interesting legal questions to do with the assessment of capacity, but perhaps the key issue for our purposes was to do with the ‘causative nexus’.


Section 2(1) of the MCA provides a definition of what it is for a person to lack capacity:



For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.


In PC & NC v City of York Council [2013], Lord Justice McFarlane made this comment on section 2(1):



…for the Court to have jurisdiction to make a best interests determination, the statute requires there to be a clear causative nexus between mental impairment and any lack of capacity that may be found to exist.15


Later he made this point:



The danger is that the strength of the causative nexus between mental impairment and inability to decide is watered down. That sequence – ‘mental impairment’ and then ‘inability to make a decision’ – is the reverse of that in s 2(1) – ‘unable to make a decision … because of an impairment of, or a disturbance in the functioning of, the mind or brain’ [emphasis added].16


It was not good enough, on his view, to say that the person’s inability to make a decision was merely ‘referable to’ or ‘significantly related to’ the impairment or disturbance in the functioning of the mind or brain. There had to be a causal connection (nexus) between the impairment or disturbance and the inability to decide. This builds on the point that diagnoses of dementia or intellectual disability in themselves do not render a person lacking in capacity; indeed, what has to be established is that the person cannot decide because he or she has such-and-such a diagnosis.



The House of Lords and the Supreme Court


Residence capacity is important because of its implications for human rights. A Select Committee of the House of Lords reported on the Mental Capacity Act in 2014. While celebrating the innovative nature of the Act and noting its potential ‘to transform the lives of many’,17 they went on to say that the implementation of the Act had not met expectations. In particular, ‘…the prevailing cultures of paternalism (in health) and risk-aversion (in social care) have prevented the Act from becoming widely known or embedded’.17


The Select Committee’s report was published on the 13 March 2014 and on 19 March 2014 the Supreme Court handed down its judgment on P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council & Anor [2014].18 This concerned the criteria for judging whether or not the living arrangements made for a person who lacked capacity amounted to a deprivation of liberty. (For further discussion see Chapter 22.) The judgment has had significant repercussions mainly because it establishes, in paragraph 49, an ‘acid test’ for deprivation of liberty, namely that the person is under continuous supervision and control and is not free to leave. The stringency of this test means that many people with dementia who lack residence capacity and are moved into residential care may well thereby be deprived of their liberty. The same holds true of people with learning disabilities who live in a variety of institutional settings. Hence, as with any type of capacity, residence capacity is important because human rights are at stake; and, as the Supreme Court’s judgment shows, there is a real chance that the right to liberty will be compromised as a consequence of an assessment of residence capacity.



Case Vignettes (see Box 23.2)




Box 23.2 Case histories*


Mr Jones in hospital


Mr Jones, who is 82 years old, was found on the floor of his kitchen by a neighbour. In hospital a urinary tract infection was diagnosed. But his neighbour, and subsequently his daughter, confirmed that he had had memory problems for some while. He remained confused, even when the infection was treated. An occupational therapy assessment in the ward kitchen showed that he was unsafe making a pot of tea. He had lived alone since the death of his wife and his house is now described as chaotic and squalid. Questions are raised about whether or not Mr Jones should be allowed to go home. He says he wishes to go home, but he thinks he does his own shopping, whereas his neighbour does this for him. His daughter feels he would be safer in a care home.


Mrs Jarvis at home


Mrs Jarvis is 79 years old and since her husband died four years ago, has lived alone in their marital home of over 50 years. She has moderately severe vascular dementia and has had a number of falls, for which she has a telecare alarm service to summon help. She continues to fall and will sometimes activate the Care-call system, but sometimes does not. At other times she rings Care-call just because she is lonely. She sometimes wanders out of her house. This has been happening more often, including at night, and sometimes involves the police. Her family are very worried about her. Home care visit three times a day to make sure she is washed and to provide food. But she will not always eat the food, which is later found discarded in various places in the house. Occasionally, she does not, despite being prompted, accept her medication. Family and professionals are putting pressure on Mrs Jarvis to accept a move into a residential care home. But she steadfastly refuses to consider this option.




* Both Mr Jones and Mrs Jarvis are fictitious characters.


Mr Jones and Mrs Jarvis are not unique. From the information presented it is not possible to say with any certainty whether or not they have residence capacity. Careful assessments would be required to determine whether they do or not.


Where assessments of residence capacity have to be made on acute medical and surgical wards, as for Mr Jones, issues around time and timing become important.4 Assessing the person’s residence capacity in the context of delirium is usually a waste of time: the assessment needs to be undertaken when the person’s cognitive function is as optimal as it is likely to be. This poses a significant problem for acute units, with pressure on beds, which cannot always afford to wait. Step-down or rehabilitation units provide a better setting for such assessments, but they are not always available. Still, some social service departments in the UK have designated resources for beds in residential homes which they call ‘time to think beds’, which seems very helpful particularly because, indeed, the assessment of residence capacity inevitably takes time (see Box 23.3).




Box 23.3 Delirium, time and the UN convention


In acute medical settings, delirium and dementia frequently present together. In these people it is impossible to be certain what the person’s level of cognitive functioning will be once the delirium is treated. In addition, not all deliriums resolve quickly. In which case, time becomes a key issue. Not only will assessments take time, they will also need to be carried out at the appropriate time.4 Providing a setting in which this can occur is a challenge. But the UN Convention on the Rights of Persons with Disabilities (UN CRPD) makes it plain in Article 12 (2) that states ‘shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life’.19 And then, in Article 12 (3), the Convention stipulates that states must provide the support they may require to exercise their legal capacity. Countries, such as the UK, which have signed the Convention, might thereby be considered bound to the paradigm of supported decision-making commended by the Convention, despite the time and other resources required.

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Sep 27, 2020 | Posted by in PSYCHIATRY | Comments Off on Chapter 23 – Residence Capacity
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