The case of Lancashire & South Cumbria NHS Foundation Trust & Lancashire County Council v AH  EWCOP 45 is a recent significant case as it is in respect of a judgment concerning whether a patient with diabetes and a learning disability has capacity to decide issues around their treatment.
Background of the case
P is 46 years old and has type 1 diabetes. If P is provided consistently with insulin, she is able to live happily and healthily. However, if she is not, she is at significant risk of serious harm and even death. She had been hospitalised in late 2021 as a result of being without insulin, however before this had resided independently within the community. There were however concerns with regards to P suffering from a mild learning disability and a suspected personality disorder, and her ability to manage her diabetes and ensure the regular administration of insulin within the community, and as such an application was made to the Court to request that P be admitted to a care home placement on release from hospital for assessment, which was subsequently granted.
History of P
There was previously an involvement of a diabetes nurse and the diabetic clinic, with P appearing to have been the patient of both diabetes clinics and the community mental health team in the early 2000s. There have been previous instances of P refusing insulin, and on one occasion not taking insulin as required and eating chocolate deliberately. P has had involvement with and input from the community mental health team where she lives since 2018. There have been ongoing concerns over her physical health from the diabetes nurses. She has shown a reluctance to register with GP’s, despite being offered assistance in doing so by the community mental health team.
Dr Camden-Smith, a Consultant Psychiatrist with a specialism in Neurodevelopmental Disability Psychiatry, was jointly instructed to carry out a capacity report on the key decision-making areas. This included assessing P’s capacity in regard to making decisions about residence, care, treatment, conduct of proceedings and consent to a possible deprivation of liberty. Dr Camden-Smith recognised that capacity in this case was difficult and recorded that there had been differing outcomes to capacity assessments within the currency of these proceedings. Dr Camden-Smith ultimately concluded that P lacked capacity with regards to all of these areas, and confirmed P’s diagnosis of a mild learning disability, but also noted that P demonstrated traits of a personality disorder and noted evidence that would suggest P to be autistic also.
The law relevant to this case is contained in the early sections of the Mental Capacity Act 2005 (MCA). There is a presumption of capacity which may only be rebutted by evidence to the contrary which is accepted by the Court on the balance of probability, and it is possible for an individual to have capacity in one regard but lack it in relation to another.
It was noted that P lacked the ability “to recognise, let alone to understand that she has mental health needs due to a combination of learning disability and personality disorder (and perhaps autism) that makes it impossible for her to understand that her own chosen care plan is not feasible. Further, she is unable to understand the consequences of her behaviour on the care that she receives and continues to behave in maladaptive ways despite repeated evidence of the harm that this causes to her.”
His Honour Judge Burrows concluded that ‘it would be sensible, if the Local Authority as supervisory body agrees that P lacks capacity, that the author of the report ought to carry out the assessment for the purposes of the DOLS, if that is possible. Alternatively, [he] would expect any mental health or mental capacity assessor to have access to the report and any judgment such as this that has dealt with the issue of capacity. For those reasons, [he gave] permission for Dr Camden-Smith’s report and this judgment to be disclosed to any mental health or capacity assessor in respect of P”. The issues of best interests and residence were stated to be determined at a later hearing.
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