Alcohol dependency and capacity – Unwise or uncapacious decisions?

Posted: 28/01/2022

This year marks the tenth anniversary of Dry January, the UK’s one-month challenge initiated by Alcohol Change UK, a leading UK alcohol charity formed from the merger of Alcohol Concern and Alcohol Research UK - Dry January | Alcohol Change UK.

The charity’s research reveals that 86% of participants in Dry January save money, 70% enjoy better sleep and 66% have more energy.

For some people, alcohol abstinence is extremely challenging as they have crossed the line from drinking as a social habit to alcohol dependence. A stage beyond this is alcohol-related brain damage (ARBD) which Alcohol Change UK reports may be difficult to diagnose as the symptoms are very similar to inebriation.

As Court of Protection practitioners, Penningtons Manches Cooper often deals with vulnerable clients whose decision making is affected by substance abuse. The key question is whether the client is unable to make a decision due to an impairment of their brain, or are the decisions they are making simply unwise.

Heavy drinking and decision making

Everyone is aware of the short-term effect that alcohol has on decision making and a recent study carried out by psychologists at the University of Bath highlights the impact heavy drinking has on the ability to plan, set goals and make decisions the following day as hangovers can affect key cognitive processes.(1)

For people with ARBD or substance dependence, the impact on decision making is far more serious and their family members and friends will be familiar with the instinct to protect them from making unwise decisions, some of which may have catastrophic consequences.

A client of the firm made it clear that he did not want anyone to control his extravagant spending of a hard-earned personal injury settlement that was intended to last his lifetime. A family member implored us to ensure that the said settlement award was drip fed to the client as otherwise he would “drink himself to death”. It was a difficult task to explain that the level to which decisions of this nature could be made for anyone depends on whether or not that person has the capacity, as defined by the terms of the Mental Capacity Act 2005, to make that decision themselves.

The fundamental right to make unwise decisions

District Judge Eldergill grappled with the issue of how the court should approach the assessment of capacity of people who are alcohol-dependent in the case of London Borough of Tower Hamlets v PB [2020] EWCOP 34. He made the following two key statements:

• “The healthy and moral human instinct to protect vulnerable people from unwise, indeed, potentially catastrophic decisions must never be permitted to eclipse their fundamental right to take their own decisions where they have the capacity to do so. Misguided paternalism has no place in the Court of Protection.”

• “Fundamentally, the Act emphasises the right of the individual, in exercising his or her personal autonomy, to make bad decisions even extending to those with potentially catastrophic consequences.”

The case is a reminder of the statutory paramount emphasis on the right of every individual to make unwise decisions and the fact that the Court of Protection cannot be used to make and enforce moral decisions on anyone.

Drawing the line between unwise and incapacitous decisions

The presumption of the law is that everyone has capacity and District Eldergill equates this presumption to the presumption of innocence in a criminal trial.

The test for whether or not one has lost the capacity to make a specified decision enshrined in Sections 2 and 3 of the Mental Capacity Act 2005 is two-fold:

• The diagnostic test – do they suffer from an impairment of the mind or brain? This is the easier part of the test as it should be relatively easy to judge when alcohol dependence is affecting one’s mental health.
• The functional test – are they unable to make the decision in question because they are unable to understand, use, weigh up and retain information relevant to making that decision or he/she/they are unable to communicate the decision? This part of the test is the most challenging as making unwise choices is not an indicator that the person making these choices is unable to understand, weigh up or retain the information relevant to making that decision.

The assessment as to whether or not someone has the capacity to make decisions is not one that can be taken lightly and often is very complex. It is made more difficult by the fact that capacity is issue-specific and an assessment of a lack of capacity to manage one’s financial affairs does not mean that the client lacks the capacity to decide where they live.

If you have any questions about decisions made or about to be made regarding someone in whose welfare you are involved, we highly recommend that you have a discussion with a Court of Protection practitioner to identify the issues and suggest suitable experts to carry out the assessments.

(1) The Effects of Alcohol Hangover on Executive Functions’ is published in the Journal of Clinical Medicineavaialble via https://www.mdpi.com/2077-0383/9/4/1148.

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