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GW v A Local Authority & Another [2014] EWCOP 20

Appeal of declarations that a 48 year old woman suffering from Huntington’s Disease lacked capacity to leave and return to her residence unescorted and to make decisions concerning her care and residence. Appeal dismissed.

The Court of Protection was concerned with applications in relation to a 48 year old woman, GW, who suffered from Huntington's disease and who was accommodated in a unit in a residential home specialising in caring for sufferers of the condition. At first instance, it was held by HHJ Marston that:

(1) GW had capacity to litigate in the proceedings;

(2) GW lacked capacity to decide to leave the residential unit unescorted or to make decisions as to her care and residence;

(3) in the light of the decision in the Supreme Court in the Cheshire West case the regime on the unit amounted to a situation in which GW was subjected to continuous supervision and control, and could not leave without prior approval and support, and therefore amounted to a deprivation of liberty;

(4) the arrangements whereunder GW was unable to leave the unit without prior approval and unaccompanied were in her best interests.

GW appealed. The notice of appeal had raised two issues: (1) whether the learned judge erred in law in concluding that GW lacks capacity to leave and return to her residence unescorted and to make decisions concerning her care and residence and (2) whether the learned judge erred in refusing permission to appeal against an earlier decision by a district judge to make an interim order under s. 48 of the Mental Capacity Act 2005 which had the effect of depriving GW of her liberty.

The appeal came before Baker J. It was conceded on behalf of the appellant that the appeal in relation to the second point could only be heard by the Court of Appeal (pursuant to rule 182 of the Court of Protection Rules 2007) because it was a second appeal. Baker J therefore only determined the appeal on the issue of capacity.

Baker J recalled that rule 179(3) of the Court of Protection Rules 2007 provides that "the appeal judge will allow an appeal where the decision of the first instance judge was (a) wrong or (b) unjust because of a serious procedural or other irregularity in the proceedings before the first instance judge." He also bore in mind that the presumption of capacity is enshrined in s. 1 of the Act and that capacity is issue specific and is a combined question of fact and law for the court to determine on the evidence, including the evidence of P. He noted that the definition of capacity in the 2005 Act contains two elements – a diagnostic test, namely whether the person has an impairment of or disturbance in the functioning of the mind or brain, and a functional test, namely whether as a result of that impairment she is unable to make a decision by understanding, retaining or weighing or communicating that decision. Both the diagnostic and the functional test must be met before a person can be held to lack capacity.

The case presented on behalf of GW was that the judge had failed to carry out a proper evaluation of capacity in five key respects. It was argued that:

  1. The judge had adopted a review of the expert evidence rather than attempting himself to find out whether the functional test was met, in a manner which failed to follow the guidance provided in CC v KK [2012] EWHC 2136 (COP) and  Re TZ (No.2) [2014] EWCOP 973. 
  2. The judge had failed to attach proper weight to the written and oral evidence of GW or explain why he rejected it in favour of the evidence given by the experts instructed. 
  3. The judge had wrongly conflated the diagnostic test with the functional test. 
  4. The judge failed to have regard to the statutory principles in s. 1 (3) and (4) of the Act. S 1(3) provides that 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. S. 1(4) provides that a person is not to be treated as unable to make a decision merely because he makes an unwise decision.
  5. The judge had failed to consider and give appropriate weight to the risk of following the "protection imperative", namely the risk that a capacity assessment will be unduly influenced by a perceived need to protect the individual rather than guided by a purely objective analysis.

Baker J rejected each of the above grounds. On a careful review of the evidence and the judgement, he considered that the judge had carried his own analysis of whether the functional test was satisfied and had explained how he had performed the same task as the experts and come to the same conclusion.

Baker J also held that the judge had explained why he had rejected the evidence of GW, which was because of his finding that she had minimized her problems. Further the judge had not conflated the diagnostic test with the functional test. Rather, he had correctly considered that information relevant to the decision for the purposes of s. 3 included the fact that GW, as a result of her significant cognitive deficit, was exposed to a risk of harm if she left the unit unescorted. The issues were therefore interlinked, but the judge had not "conflated" them.

Neither had the judge, in the view of Baker J, failed to have regard to the principles in s1(3) and (4) of the Act. The evidence before him had included many examples of how professional had considered how GW could be assisted to make decisions about unescorted leave.

Finally, Baker J rejected the submissions that the judge had failed to consider s1(4) (i.e. that a person should not be treated as lacking capacity simply because she makes an unwise decision) and that he had failed to consider the risk of following the "protection imperative". His finding was not that GW would merely unwisely leave the home unaccompanied, but that she lacked awareness of the risk and sufficient problem solving ability to make the decision for herself. He had specifically considered and rejected the idea that the experts had been excessively risk averse.

Therefore, whilst expressing "profound sympathy" for GW, Baker J dismissed the appeal.

Summary by Thomas Dudley, barrister, 1 Garden Court Family Law Chambers
____________________________

Neutral Citation Number: [2014] EWCOP 20
Case No: COP12128595

IN THE COURT OF PROTECTION


Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 31/07/2014


Before :

THE HONOURABLE MR JUSTICE BAKER

IN THE MATTER OF THE MENTAL CAPACITY ACT 2005
AND IN THE MATTER OF GW

- - - - - - - - - - - - - - - - - - - - -

Between :

GW Applicant
- and - 
A LOCAL AUTHORITY (1) Respondent
B LTD (2) 
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Amanda Weston (instructed by Conroys) for the Applicant
David Lawson
(instructed by Local Authority Legal and Democratic Services) for the First Respondent
Conrad Hallin
(instructed by Radcliffes Le Brasseur) for the Second Respondent

Hearing dates: 17th July 2014
- - - - - - - - - - - - - - - - - - - - -

Judgment
THE HONOURABLE MR JUSTICE BAKER

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the applicant and members of her family must be strictly preserved.   All persons, including representatives of the media, must ensure that this condition is strictly complied with.   Failure to do so will be a contempt of court.

Mr. Justice Baker :
1. In this appeal, a 48 year old woman, hereafter referred to as "GW", suffering from Huntington's Disease (hereafter "HD") appeals against a decision of His Honour Judge Marston sitting in the Court of Protection. The notice of appeal raised two principal issues: (1) whether the learned judge erred in law in concluding that GW lacks capacity to leave and return to her residence unescorted and to make decisions concerning her care and residence and (2) whether the learned judge erred in refusing permission to appeal against an earlier decision by a district judge to make an interim order under s. 48 of the Mental Capacity Act 2005 which had the effect of depriving GW of her liberty.

2. This latter question potentially raised fundamental questions concerning the interpretation of section 48 – namely whether the practice of the Court of Protection in continuing or instigating a deprivation of liberty under section 48 is lawful under the statutory scheme set out in the 2005 Act and the Deprivation of Liberty Safeguards ("DOLS") in Schedule A1 to the Act and/or is compliant with Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The fact that this point had been raised was a material consideration in my decision to grant permission to appeal against Judge Marston's order. In their response to this appeal, the first respondent, the local authority for the area where GW lives, being the supervisory body for the purposes of the DOLS, and the second respondent, ("B Ltd") the owners and managers of the residential home where GW is currently living, contended that this proposed appeal amounted in effect to a second appeal following the decision of the district judge. Under rule 182 of the Court of Protection Rules 2007, "a decision of a judge of the court which was itself made on appeal from a judge of the court may only be appealed further to the Court of Appeal". At the outset of the hearing before me, Miss Weston on behalf of the appellant (who did not appear at first instance) conceded that this provision ruled out my consideration of the proposed further appeal. Accordingly, the only question for this court to determine is the appeal on the issue of capacity.

Background
 
3. The background can be summarised as follows. In March 2010, GW, a married woman with two children, was diagnosed as suffering from HD. Very sadly, a number of members of her family had previously suffered from this condition and GW herself had been actively involved in charitable work concerning the disease. In July 2011, GW was referred to the community mental health team because of concerns about her lack of insight and irrational behaviour. In September of that year, her husband and children left the family home. On 22nd December 2011, GW was detained in a psychiatric hospital under section 2 of the Mental Health Act 1983. She was discharged in the following January but subsequently detained again under section 3 of the Act. In February 2012, she was transferred to another unit in Bristol.

4. In November 2012, GW moved to a unit in a residential home specialising in caring for persons suffering from HD. On 8th January 2013, GW was formally placed at the unit under a guardianship order under section 7 of the Mental Health Act. In May 2013, an urgent authorisation was granted to prevent GW leaving the property without supervision and support. The second respondent requested a standard authorisation from the first respondent, the local authority for the area. On 7th May, a consultant psychiatrist, Dr J, concluded that GW lacked the capacity to decide about leaving the unit. On 8th May, an application was made to the Court of Protection on behalf of GW under s.21A of the 2005 Act seeking to challenge the urgent authorisation. On 9th May, the urgent authorisation was extended to 15th May.

5. On 13th May, District Judge Jackson sitting in the Court of Protection declared, pursuant to section 48, that the court had reason to believe that GW lacked capacity to decide whether and when to leave the care home unescorted. She further ordered that it was lawful and in GW's best interests inter alia to be escorted by an employee or agent of the second respondent whilst on any trips out of the unit. She further ordered that it was lawful and in GW's interests, in the event that she sought to leave the unit without the consent of the manager, or sought to abscond from escorted supervision while outside the unit, to be returned back to the unit with the use of reasonable and proportional physical contact if necessary. On 3rd July 2013, GW filed a notice of appeal against the order of 13th May. The principal issue raised was the extent to which the Court of Protection can and should use its powers under s. 48 to authorise a deprivation of liberty. It was contended that these powers are contrary to the purpose of the statutory framework and incompatible with Article 5(4) of ECHR and further that the interim order made in this case was unlawful because there was no extant authority for a deprivation of liberty and no proper or adequate consideration of GW's best interests.

6. By the order of 13th May, which was amended following a further hearing on 28th May, the district judge also identified the issues for the Court to consider at a further hearing as being likely to include

i) whether GW has capacity (a) to litigate in the proceedings; (b) to decide whether or not she should be accommodated in a hospital or care home for the purpose of being given care or treatment and (c) to decide whether to leave the unit unescorted;

ii) how the court should approach capacity when considering an application under section 21A of the 2005 Act;

iii) whether the conditions on which GW was provided with care amount to a deprivation of liberty; and

iv) what was in GW's best interests in the event that she is found to lack capacity in relation to the issues identified above.

The district judge gave directions for the preparation of reports as to capacity. Those directions were subsequently amended by the further orders and ultimately listed for a substantive hearing before HH Judge Marston in January 2014.

7. In the event, the substantive hearing lasted three days. The professional evidence indicated that GW had capacity to litigate, but not to make decisions as to leaving the property unescorted or as to her future care and residence. There was a considerable body of evidence on these latter issues of capacity in the form of a number of reports from various professionals, together with oral evidence from GW's treating psychiatrist ("Dr P"), an independent psychiatric expert (Dr Moore) and a best interests assessor ("SA"). In addition, GW herself gave oral evidence for several hours and was cross examined at length.

8. As the case also involved a question relating to the deprivation of liberty, delivery of the judgment following the hearing was delayed pending the handing down of the decision of the Supreme Court in P v Cheshire West and Cheshire Council and another [2014] UKSC 19. In the judgment, eventually handed down on 17th April 2014, Judge Marston held that:

(1) GW had capacity to litigate in these proceedings;

(2) GW lacked capacity to decide to leave the residential unit unescorted or to make decisions as to her care and residence;

(3) in the light of the decision in the Supreme Court in the Cheshire West, case the regime on the unit amounted to a situation in which GW was subjected to continuous supervision and control, and could not leave without prior approval and support, and therefore amounted to a deprivation of liberty;

(4) the arrangements whereunder GW was unable to leave the unit without prior approval and unaccompanied were in her best interests.

9. No decision was necessary as to whether she should continue to reside at her current placement because GW remained subject to a guardianship order.

10. GW's lawyers subsequently applied for permission to appeal Judge Marston's order. On 7th May 2014, I granted permission to appeal and listed the matter for a full hearing before me in July.

Grounds of appeal

11. The appeal was argued before me by Miss Amanda Weston, who had not appeared before Judge Marston.

12. The grounds of appeal settled by counsel who had appeared before Judge Marston began by asserting that the judgment contained a large number of obvious spelling and typographical errors. Trial counsel submitted that "the (presumably unintentional) impression given by the judgment overall is one of lack of consideration bordering on disregard for the Appellant as the subject of proceedings. The errors suggest that the judge did not approach his judgment with the care and thoughtfulness which the case warranted."

13. Wisely, Miss Weston did not pursue this argument which is both unfair and insulting to Judge Marston. No one reading the judgment could doubt that he approached his task with due care and thoughtfulness. It is true that there are a number of typographical errors. That is true of many judgments – certainly it is true of mine. It must be remembered that a circuit judge has no personal assistant nor any secretarial support. The demands on circuit judges are increasing. The requirement to publish judgments as a result of the recent guidance given by the President has added to their burdens. It is the practice in the High Court to send out draft judgments for checking by counsel. Invariably, errors are picked up, although not by all counsel. Circuit judges do not always adopt this practice and it might be advisable for them to do so. Had Judge Marston adopted this practice in this case, the typographical errors would (presumably) have been picked up. In any event, the typographical errors here were not of a degree to call into question the reliability of Judge Marston's judgment

14. The grounds of appeal proceeded to raise issues concerning the decision as to capacity, best interests and deprivation of liberty. As explained above, the issues as to deprivation of liberty were not pursued before me as Judge Marston's decision was made on appeal from the district judge and, as stated above, any appeal therefrom must go to the Court of Appeal. No challenge to his decision as to best interests was pursued before me. The oral hearing of the appeal therefore focused exclusively on the decision as to capacity.

15. Rule 179(3) of the Court of Protection Rules 2007 provides that "the appeal judge will allow an appeal where the decision of the first instance judge was (a) wrong or (b) unjust because of a serious procedural or other irregularity in the proceedings before the first instance judge." In her well-presented submissions in support of this appeal, Miss Weston accepted that her case was essentially that the decision was unjust because Judge Marston had failed in ways she asserted to carry out a proper evaluation of capacity.

16. Miss Weston reminded the court that the presumption of capacity is a statutory principle enshrined in s. 1 of the Act. Furthermore, capacity is issue specific and is a combined question of fact and law for the court to determine on the evidence, including the evidence of P. The statutory definition of capacity in the 2005 Act contains two elements – a diagnostic test, namely whether the person has an impairment of or disturbance in the functioning of the mind or brain, and a functional test, namely whether as a result of that impairment she is unable to make a decision by understanding, retaining or weighing or communicating that decision. Both the diagnostic and the functional test must be met before a person can be held to lack capacity. Miss Weston conceded that it was not in dispute at the hearing or before me that the Appellant met the diagnostic test as a result of her HD. The question was whether the functional test had been satisfied.

17. In support of her appeal, Miss Weston made a number of interlinked submissions. First, she contended that the judge had wrongly adopted what she described as a review approach. She asserted that he had not himself attempted to find out whether the functional test was met. It was submitted that the judge had failed to follow guidance given by this court in CC v KK [2012] EWHC 2136 (COP), and reiterated in my subsequent decision in Re TZ (No.2) [2014] EWCOP 973, to the effect that the views of experts are relevant in assisting the court to make a decision as to capacity but they are not determinative of the question which remains one for the court itself. Miss Weston submitted that the judge had abdicated the court's function by failing to consider the way in which the professionals' opinions have been reached.

18. Secondly, a major plank of her argument was that the judge had failed to attach proper weight to the evidence given by GW herself. She had signed two statements, and gave oral evidence over several hours (a transcript of which was before me). Miss Weston argued that there was no record in the judgment of the evidence given by the appellant herself relevant to the question of capacity and nothing to indicate what the judge made of that important evidence or what weight he had attached to it. Miss Weston submitted that the judge's reasoning in relation to capacity left it unclear why he rejected the appellant's evidence in preference of that given by Drs Moore and P.

19. Thirdly, Miss Weston submitted that the judge wrongly conflated the diagnostic test with the functional test. She argued that this was a central issue because both Dr Moore and Dr P had relied on cognitive tests as conclusive evidence that GW lacked capacity.

20. Fourth, Miss Weston submitted that the judge failed to have regard to the statutory principles in s. 1 (3) and (4) of the Act. S 1(3) provides that 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. S. 1(4) provides that a person is not to be treated as unable to make a decision merely because he makes an unwise decision. Neither subsection is cited in the judgment. Miss Weston submitted that this is a significant omission.

21. Finally, Miss Weston cited my observation in CC v KK, supra, and repeated in Re TZ (No 2), supra, that, following the observations of Ryder J, as he then was, in the children's case of Oldham MBC v GW and PW [2007] EWHC 136 (Fam) the court must be careful of avoiding the "protection imperative", namely the risk that a capacity assessment will be unduly influenced by a perceived need to protect the individual rather than guided by a purely objective analysis. Miss Weston submitted that Judge Marston failed to consider and give appropriate weight to the risk of following the "protection imperative" in this case.

The evidence and the judge's assessment

22. To assess these various submissions, I consider the evidence before the court at first instance and the assessment carried out by Judge Marston

23. The principal professionals on whose evidence Judge Marston relied were the clinician who had signed an initial capacity assessment (Dr J), GW's treating psychiatrist, (Dr P), an occupational therapist, ("SR"), the jointly instructed expert (Dr Moore) and the social worker, SA.

24. In his assessment, Dr J concluded that GW "was unwilling or unable to acknowledge that she had the psychological manifestations of the disease". Although she manifested the ability to understand and retain information concerning the relevant decisions, she was unable to weigh up the information as a result of her cognitive dysfunction and labile mood associated with HD. Dr J thought that "she has an inability to plan and think things through and was unable to consider the pros and cons of a particular issue and then come to a reasoned decision." Dr J concluded that on the balance of probabilities her mental capacity to decide about her care and residence needs was impaired.

25. GW's treating physician, Dr P, prepared a report dated 19th July 2013, and as part of his assessment interviewed a care support worker about her experiences when out with GW on unescorted leave. The care support worker reported that GW found uneven pavements particularly difficult. She said that, when this happens, GW will walk out onto the road without any thought and seemingly quite unaware of the danger in which she is placing herself. She described GW as "putting her head down" so that she is so concentrated on doing this task that she loses all sense of her surroundings. Dr P observed that this was "clearly due to frontal lobe impairment from her HD", resulting in a lack of awareness of her surroundings. The care support worker further described how GW has started walking in the middle of the road along the white lines thinking she was quite safe and being unaware of where she was because she was looking down at her feet.

26. When Dr P asked GW about her road safety, she was adamant that she never walked in the road. She said that her road sense was excellent. Dr P concluded that it was quite clear that GW was "quite insightless" into her lack of road safety and awareness. He concluded that she was unable to understand or weigh up key information relevant to the decision as to whether she should go out of the unit unescorted because she does not understand the risk that her lack of road safety poses.

27. SR, an occupational therapist, has known GW for some time since her placement at the unit. She has accompanied her into town on a number of occasions. On 22nd November 2013, she carried out a further assessment in which she concluded:

"GW appears able to manage familiar road safety when she concentrates. However, she does not appear to be able to sustain this concentration for extended periods of time. She has reduced awareness of risks and her problem solving abilities may place her [in] dangers at times, ie the decision to use the road to avoid difficulties with uneven pavements. It has also been noted that GW was aware she was being assessed and this is likely to have affected her performance. Anecdotal observations from other staff have indicated that GW's pedestrian safety is reduced at other times, for example she has stopped in the middle of roads…."

28. Dr. Moore, the independent psychologist instructed in the proceedings to carry out an assessment, first interviewed GW in September 2013. During the interview, she was unable to inform him of her care needs nor explain what might be some of the difficulties and risks in accessing the community unescorted. Even with prompting, she demonstrated a lack of insight as to the cognitive impact of her illness. She appeared to underestimate and minimise the physical impact of her disease. Dr Moore observed that difficulties with insight and awareness in HD are thought to be caused primarily by the degeneration of frontal-basal ganglia brain pathways and to a lesser extent the emotional impact of loss relating to the condition.

29. In a subsequent letter to GW herself, Dr Moore observed that during the interview she had appeared to be unaware of any difficulties in the community and around road safety. He said that he did not feel that it would be valuable to quiz her at length on road safety as this was best assessed through her actions under the expertise of an occupational therapist. He added:

"moreover this would only test declarative knowledge rather than implicit memory, which is the concern and which is typically affected in HD. My value as a psychologist is in establishing cognitive capacity to carry out such behaviours involved in community access and road safety. In my opinion your cognition is compromised to prevent you from adequately weighing up the decision and risks of going out unescorted.  "

30. In his September 2013 report, Dr Moore concluded:

"GW doesn't have capacity to decide whether or not she should be accommodated in the relevant hospital or care home for the purpose of being given the relevant care or treatment because her HD has caused severe deterioration in her cognition, causing her to be largely unaware of her cognitive difficulties and unable to weigh up the information required in order to make the decision. This conclusion was reached impartially, as was possible, focussing upon her past performance during my cognitive examination at interview and also in scrutinising additional sources of information including interviews with staff, telephone interviews with relatives and from analysis of past assessment reports. "

In addition, Dr Moore concluded that, for the same reason, GW did not have capacity to decide whether to leave the care home unescorted.

31. In his letter to GW, Dr Moore reported that he had discussed with the care home manager and the occupational therapist what had been tried to maximise her capacity to make decisions on the topic of unescorted trips. Staff had told him that they had explained verbally and that she had received reports detailing their concerns and advice. Dr. Moore thought it would be helpful for the occupational therapist to continue this work.

32. SR, the occupational therapist, reported a number of incidents described by staff members at the unit when GW had displayed a lack of road safety skills. For example, on one occasion she had stopped in the middle of the road to look at a cat. On another occasion, whilst on a shopping trip in a car, she had attempted to get out of the car door while the vehicle was moving. In her statement, SR concluded that GW appeared able to manage familiar roads safely when she concentrates but was unable to sustain this concentration for extended periods of time and that was when her safety was compromised.

33. Further evidence was provided by a social worker, SA, who carried out a best interests assessment in November 2013. Having spoken to GW, and to other professionals involved in her care, she concluded that GW was unable to weigh up the risks involved in having unescorted leave, and her road safety.

34. Two statements by GW were filed for the hearing before Judge Marston. She said she was deeply unhappy about the restrictions that had been placed on her, and could see no good reason why she should not be allowed to go out unescorted in daylight hours. In the second statement, she listed the pros and cons of going out unescorted and escorted. The only con of going out unescorted she cited was: "I recognise that there are perceived safety concerns although I consider that I am safe crossing roads." GW gave oral evidence over several hours and a transcript has been produced for this appeal. My attention was drawn to several passages by Miss Weston, in particular in a lengthy re-examination in which GW described the route she took into town.

35. In his judgment, Judge Marston noted that for GW, the question of whether she could leave the unit unescorted

"is a litmus test on who she is and on the progress of her condition the answer to which goes right to the core of her identity and lifestyle. On the other hand, the answer is equally important to the respondents in terms of how they carry out their care of her and keep her safe. "

This illustrates that the judge was aware of the importance of this matter for GW. To my mind, it demonstrates that he had taken into account her strong views and evidence.

36. The judge then dealt in his judgment with what he describes as some "basic points", principally the legal provisions. He noted that GW must be seen to have capacity unless it is proved on the balance of probabilities that she does not. He did not expressly refer to other fundamental principles in s. 1 of the 2005 Act – for example s. 1(3) or (4). The learned judge then proceeded in the judgment to recite ss 2 and 3 of the Act. He then quoted the respondents as saying that the evidence all points in one direction and that the evidence that GW lacked capacity about leaving the unit was "overwhelming". He referred to the evidence of Dr P, Dr Moore, Dr J and SA. He pointed out that there were many examples in the witness statements and accounts of incidents when, because of her functioning, GW placed herself in danger, citing in particular the evidence of the occupational therapist SR. He cited a submission from GW's counsel as to the risk of confusing the question of whether GW had a cognitive impairment and lack of insight with the issue before the court. He then observed:

"However, in oral evidence, Dr Moore and Dr P explained that her significant cognitive deficit is relevant to the assessment of capacity. It is caused by the HD which is an impairment or disturbance in the functioning of the mind or brain and it causes real risks to her when she is out because of the effect it has on her ability to process all the information required for her safety and the safety of others. "

37. The judge added that the court had performed the same test and on "the overwhelming weight of evidence came to the same conclusion".

38. Although for the reasons stated above the judge was not required to make a best interests decision as to where GW should live, the judge was asked to consider the question of capacity to make decisions concerning her residence and care. He formed the opinion that the expert evidence pointed decisively against her having such capacity. He repeated the point made on her behalf that the analysis was flawed because the experts relied on her illness and  cognition and lack of insight into her condition rather than her ability to make a decision, but again rejected that because, as he said, of the reasons "set out so clearly in Dr Moore's evidence". The judge added:

"I also reject the idea canvassed in written submissions by the applicant that the assessments are somehow influenced by a risk averse attitude on the part of the professionals working with GW and giving evidence to me I could not identify anything but proper concern for GW's best interests and desire to assist the court."

39. Up to this point in the judgment, Judge Marston had not referred in detail to the evidence as to the GW's difficulties when outside the unit. A little later in the judgment, when dealing with the best interests decision, he cited a number of examples as to the difficulties that had occurred, citing in particular points drawn to his attention in SR's accounts – stopping in the middle of the road to look at a cat; not responding to an oncoming cyclist; walking with her head down looking at the ground. He observed that generally in the evidence a picture emerged of someone putting themselves at risk. He concluded:

"She has reduced awareness of risk and her problem solving abilities may place her in danger at times, which is of course precisely the analysis of the difficulties given to me by both psychiatrists. GW in her written and oral evidence tried to explain or minimize these problems but on this issue I preferred the evidence of the respondent's lay witnesses."

40. The learned judge then went on to carry out the necessary balancing exercise before concluding it was not in GW's best interests to go out unescorted. As stated above, that decision as to her best interests is not part of this appeal.

Discussion

41. From my reading of the judge's assessment, I conclude that, far from simply carrying out a review approach, the judge carried his own analysis of whether the functional test was satisfied. He explained how he had performed the same task as the experts and come to the same conclusion. In addition, he observed later in his judgment that GW had in her written and oral evidence tried to explain or minimize her problems. Although this is undoubtedly a brief reference, it demonstrates to my satisfaction that Judge Marston did indeed consider GW's evidence on this issue. Miss Weston submitted that the judge's reasoning in relation to capacity makes it unclear why he rejected the appellant's evidence in preference of that given by Drs Moore and P.  I disagree. The judge's reason for rejecting GW's evidence was that in her written and oral evidence she tried to explain or minimize her problems. It could be argued that he should have put this earlier in the judgment, but I find that he did provide sufficient explanation of why he preferred the professionals' evidence. I reject the submission that Judge Marston "abdicated his decision". Having referred to the opinions of the professionals, he then "performed the same task" and came to the same conclusion on the "overwhelming" weight of evidence.

42. Miss Weston relied on the transcript of GW's evidence, in particular the lengthy re-examination when she was asked a series of questions relating to safety issues. It seems to me however that only limited weight could properly be attached to this evidence. As Dr. Moore observed, quizzing GW about road safety was not a valuable exercise, in contrast to the practical assessment carried out by the occupational therapist. It is not surprising that GW was able to recall some safety issues in oral evidence, or to describe the route she took into town. The question was whether in practice she had the ability to apply insight and understanding about road safety when she was out and about. Every time someone walks into town, it is a different experience, no matter how well they know the route. The question is whether GW has an appreciation of the risks that may arise every time she steps out of the front door. The preponderance of the evidence was that she does not.

43. Miss Weston submitted that the judge wrongly conflated the diagnostic test with the functional test. She argued that this was a central issue because both Dr Moore and Dr P had relied on cognitive tests as conclusive evidence that GW lacked capacity. I do not accept this characterisation of the approach given by those two experts, or that the judge conflated the two elements. Both Dr. Moore and Dr P were aware of, and properly reliant on, the evidence of other professionals, in particular in Dr. Moore's case the evidence of the occupational therapist. As quoted above, the judge recorded the evidence given by Dr. Moore and Dr P that the cognitive deficit was caused by the HD which amounted to an impairment or disturbance in the functioning of the mind or brain and which caused real risk to her when she was out because of the effect it had on her ability to process all the information required for her safety and the safety of others. On behalf of the second respondent, B Ltd, Mr Hallin submitted that this was an entirely proper application of ss 2 and 3 of the Act to the decision in question. The "information relevant to the decision" for the purposes of s. 3 included the fact that GW, as a result of her significant cognitive deficit, was exposed to a risk of harm if she left the unit unescorted. In other words, submitted Mr Hallin, this is a case where her lack of insight into the risk was itself caused by the disturbance in the functioning of the mind. He submitted that this finding was soundly based on evidence. I agree with Mr. Hallin's submission. It is not correct to suggest that either Dr Moore or Dr P suggested that the cognitive impairment was itself conclusive of a lack of capacity. Although the two elements of a lack of capacity – the diagnostic element and the functional element – were interlinked, they were not conflated, either by the two experts or by the judge.

44. Miss Weston submits that the judge failed to have regard to the statutory principles in s. 1 (3) and (4) of the Act. So far as s. 1(3) is concerned, I do not accept that Judge Marston did not have in mind the principle that a person is not to be treated as lacking capacity unless all practicable steps have been taken to help her exercise capacity without success. The evidence at the trial included many examples of how professionals have considered how GW could be assisted to make decisions about unescorted leave. There was plenty of  evidence about occasions when GW had been accompanied and assisted when walking in the town, including those alluded to above, in particular the trial assessment carried out by the occupational therapist. As mentioned above, Dr Moore referred to various steps that had been taken to help her in a letter to GW herself.

45. Furthermore, I do not accept that the judge failed to consider the principle in s.1(4) that a person is not to be treated as lacking capacity simply because she makes an unwise decision. In the course of his judgment, he observed that GW had a reduced awareness of risk and how her difficulties with problem solving may place her in danger at times. To my mind, this illustrates that Judge Marston had the distinction identified in section 1(4) firmly in mind. There is a difference between someone who has an appreciation of risk and yet goes on to take the risk – albeit unwisely – and someone who, as Judge Marston found in this case, lacked awareness of the risk and sufficient problem-solving ability.

46. Miss Weston submitted that the judge failed to consider and give appropriate weight to the risk of following the "protection imperative". Again, I disagree. As set out above, Judge Marston expressly considered and rejected the submission that the assessments were somehow influenced by a "risk averse attitude" on the part of professionals working with GW. He also cited the well-known dictum of Munby J (as he then was) in Re MM [2007] EWHC 2003 (Fam) – "what good is it making someone safe if it merely makes them miserable?" This famous dictum is the most succinct reminder of the importance of avoiding the protection imperative. But road safety involves not only one's own safety but also the safety of others. The evidence suggests that GW would be a danger to other road users. Because of her cognitive deficiencies, she does not appreciate this risk.

47. On behalf of the local authority, Mr Lawson submits that the judge identified the following factors as relevant to the question whether GW could leave the home unescorted.

i) The question was of vital importance to GW.

ii) The judge set out the presumption of capacity and the diagnostic and functional test.

iii) The judge referred by name and page reference to the opinion of five separate experts who concluded that GW lacked capacity to decide whether to leave the care home unescorted.

iv) He further referred to examples of the appellant putting herself in danger.

v) He explained that it was argued on GW's behalf that cognitive impairment and lack of insight were not a basis of finding the appellant lacked capacity.

vi) He noted that two experts considered a cognitive deficit is relevant to the appellant's lack of capacity because it showed the effect of her Huntington's disease on her ability to process information.

vii) He stated that he accepted evidence that the position now was worse than when carers noted that she could access the community.

viii) He accepted evidence that the cognitive impairment caused a lack of insight.

ix) He stated that the court had performed the same task and come to the same conclusion.

48. Mr Lawson reminds me of the dictum of the Court of Appeal in English v Emery Reinbold and Strick Ltd [2002] 1 WLR 2409 at paragraph 21 that:

"The essential requirement is that the terms of the judgment should enable the parties and any appellant tribunal readily to analyse the reason it was essential to the judge's decision."

In this case, although the judgment was relatively short, it was in my view sufficient to explain the judge's reasoning.

Conclusion

49. I accept the respondents' submissions. I find that Judge Marston carried out a proper evaluation of capacity. I am satisfied that he had the relevant principles in mind and applied them properly. He plainly attached weight to the unanimous view of the professionals whose various opinions were placed before him, but nonetheless carried out his own evaluation. Having done so, he came to the same conclusion.

50. Furthermore, it would be impossible for any appellate court to conclude that Judge Marston's judgment was wrong. On the contrary, it was plainly right. On any view of the evidence produced before this court, which included all the written evidence before Judge Marston plus the transcript of GW's oral evidence, and applying the statutory principles and guidance from case law as to the evaluation of capacity, GW sadly lacks the capacity to make a decision as to whether or not she should leave the unit unescorted.

51. The focus of the appeal was very much directed at the question of capacity to decide whether to leave the property unescorted. Less attention was devoted to the question whether or not GW had the capacity to make decisions as to her future care and residence. Plainly this is not of immediate importance because there was no issue at the hearing that GW should remain at her current unit. In my judgment, however, no criticism could properly be levelled at Judge Marston's evaluation of her capacity to make decisions as to her care and residence. In this respect, as with his evaluation of her capacity to make decisions about leaving the property unescorted, his decision was both just and right.

52. The appeal is therefore dismissed.

53. In reaching this conclusion, however, I wish to express my profound sympathy with GW for her current predicament. It is plain from reading her evidence that she greatly values her freedom and I am sure she will bitterly resent this decision. I hope that ways can be found by those who provide her with care and support to mitigate the effect of this decision so that she can enjoy the opportunity of visits into the community with support that is effective but as unobtrusive as possible.