RB v Brighton & Hove City Council

Under the Mental Capacity Act 2005, capacity must be assessed by applying the statutory functional test to the particular decision, not by treating another case’s factual analogy as governing. An unwise choice does not itself establish incapacity. However, a person lacks capacity where an impairment prevents him from using and weighing information about the foreseeable risks of the decision. For Schedule A1 deprivation of liberty, relevant care may include day-to-day personal care. Detention may be in a person’s best interests where it is necessary and proportionate to prevent serious harm, even if the person wishes to live independently, provided wishes, less restrictive alternatives and rehabilitation are addressed.

RB, a man with acquired brain injury and physical disabilities, was detained at S House under standard authorisations made pursuant to Schedule A1 of the Mental Capacity Act 2005. He sought termination of the authorisation under section 21A, arguing that he had capacity to decide where to live and that detention was not in his best interests.

District Judge Glentworth dismissed the application on 15 March 2013. His Honour Judge Horowitz QC dismissed RB’s appeal on 4 October 2013. The Court of Appeal granted permission and heard the substantive appeal. The central issues were whether the mental capacity requirement and the best interests requirement for deprivation of liberty were satisfied.

Lord Justice Jackson gave the judgment of the court. Lord Justice Fulford and Lady Justice Arden agreed. The appeal was dismissed.

1. Statutory approach. The court must apply the language of the Mental Capacity Act 2005 and should not replace it with judicial glosses or paraphrases. Earlier decisions may illuminate factual and analytical difficulties, but they do not govern a new case merely because the facts appear analogous. This approach was consistent with the cautions in A Local Authority v FG [2011] EWHC 3932 (COP) and York City Council v C [2013] EWCA Civ 478.
2. Mental capacity. RB’s wish to resume drinking was an unwise decision, which did not itself establish incapacity. The relevant question was whether, because of his brain injury, he could use and weigh information about the serious and foreseeable risks of resuming his former lifestyle. On the expert evidence and the findings of fact, he could not. The mental capacity requirement in paragraph 15 of Schedule A1 was therefore satisfied.
3. Relevant care. Day-to-day personal care constituted relevant care or treatment for the purposes of paragraph 15. Although RB could choose between care homes, he could not appreciate and weigh the difficulties and risks of receiving appropriate care while living independently and resuming his former lifestyle.
4. Least restrictive means and best interests. Section 1(6) required consideration of whether the purpose could be achieved less restrictively. On the evidence, safe care and prevention of serious self-harm required detention in S House or a similar institution, with accompanied and supervised outings. Detention was therefore necessary and proportionate under paragraph 16 of Schedule A1 and was in RB’s best interests. His wish to live independently was taken into account, but could not presently be followed. Staff were required to continue offering rehabilitation and encouraging participation, since future independent living remained possible.

• Court of Appeal (Civil Division): in [2014] EWCA Civ 561, dismissed RB’s appeal.
• Court of Protection: District Judge Glentworth dismissed RB’s application to terminate the standard authorisation on 15 March 2013. His Honour Judge Horowitz QC dismissed RB’s appeal on 4 October 2013.