Whilst consumed, alcohol affects the functioning of the mind, and if making decisions whilst under the influence the degree of a person’s mental capacity could be questioned. The effects of alcohol are temporary and for the purpose of determining a person’s mental capacity, a person will not be assessed whilst they are intoxicated. There are some individuals, however, that are dependant on alcohol and that dependency may affect the determination of a person’s mental capacity.
The Mental Capacity Act 2005 (Act) determines what should be considered when reaching a decision as to whether or not a person retains capacity. The Act sets out the following:
- A person is presumed to have capacity unless proven otherwise on the balance of probabilities;
- A person lacks capacity to make a decision when they are unable to:
- Understand the information relevant to that decision;
- Retain that information;
- Use the information to make the decision; and
- Communicate a decision;
- All practicable steps should be taken to assist a person in making a decision;
- A person is not to be treated as unable to make a decision because that decision is unwise.
The Act makes it clear the criteria that, if met, will result in a person being found to lack capacity.
London Borough of Tower Hamlets v PB [2020] EWCOP 34
Case background
In the case of London borough of Tower Hamlets v PB, the Court had to consider whether the Protected Party’s alcohol dependency affected his mental capacity. The case concerned the Protected Party’s residence in supported living accommodation, which aimed to prevent the Protected Party’s access to alcohol. During the case, it became clear that the Protected Party did not object to his residence but objected to the restrictions that prevented his access to alcohol and requested he be able to access alcohol in moderation.
As with all Court of Protection proceedings, an early decision had to be made regarding the Protected Party’s capacity. If it was found that the Protected Party retained capacity, the Court of Protection’s jurisdiction would come to an end and they would be unable to make decisions on his behalf. The psychiatrist initially found that the Protected Party retained capacity as he was able to understand the impact of his drinking and the risks involved, including an early death if the Protected Party’s excessive drinking continued. The psychiatrist then later changed his position on the basis that the Protected Party submitted his drinking would be in moderation only, but that the Protected Party was believed unable to manage his drinking in moderation.
The Judge considered the psychiatrist’s findings and concluded that the Protected Party would be assessed as retaining capacity. The Judge commented that just because the Protected Party made a seemingly unwise decision, that does not mean he will be assessed as lacking capacity. It was clear that the Protected Party was able to understand the effect of his decision and the risks involved and had weighed this up when making his decision. It was further noted the relevant decision before the Court of Protection was the Protected Party’s residence, not his alcohol consumption. This made the Court’s decision simpler as it was clear that the Protected Party wished to remain at his placement and understood the consequences of this.
Comment
Similar to all Court of Protection proceedings, all cases will be determined on their specific facts. This case confirmed a person’s alcohol dependency may affect a person’s capacity, but that will be when the dependency affects a person’s decision making.
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