England and Wales Court of Protection Decisions

IN THE COURT OF PROTECTION

		25/08/2011

District Judge Eldergill :

1 — INTRODUCTION

This decision deals with the interim arrangements for the residence and care of Mrs H who is receiving treatment and care in a hospital following a stroke in January of this year.

All of the parties have acknowledged that the decision in this case is a difficult one.

The decision is lengthy. This is because of the critical importance of the decision to Mrs H's future welfare, the complexity of the case, the number of legal strands, a changing situation, the finely-balanced considerations and the number of issues and facts in dispute. Because the court has not received a chronology, this is also designed to be a working document that can be used by the parties and experts as a starting-point for reports, submissions and future discussions.

At the outset, I would like to thank the parties for their helpful submissions and for their attempts since the last hearing to reach an agreement on the best way forward for Mrs H.

2 — CONTENTS

The decision is structured under the following headings:

		Section
1 —	Introduction	1
2 —	Contents	2
3 —	The Originating Application	3
4 —	The Parties to the Proceedings	4
5 —	Mrs H's Mental Capacity	5
6 —	Previous Hearings	6
7 —	Developments after 31 May	7
8 —	The Position Today	8
9 —	The Local Authority's Case	9
10 —	Mr H's case	10
11 —	The Official Solicitor's Case	11
12 —	Mental Capacity Act Provisions	12
13 —	Public Law Considerations	13
14 —	Mrs H's Best Interests	14
15 —	Order and Directions	15

3 — THE ORIGINATING APPLICATION

The original application was made by the local authority on 6 April 2011. At that time Mrs H was considered to be medically fit to be discharged from the hospital where she had been residing since having a stroke in January.

In their application, the local authority sought declarations that Mrs H lacks capacity to decide where to live on discharge and that it is in her best interests to be discharged to, and to live in, a nursing home.

The local authority also sought an interim order in those terms, authorising discharge to a nursing home pending the final determination of the application.

4 — THE PARTIES TO THE PROCEEDINGS

The parties to these proceedings are as follows:

The local authority	Applicant
Mrs H	First Respondent	The person concerned ("P"), by her litigation friend, The Official Solicitor
Mr H	Second Respondent	Mrs H's husband

About Mr H and Mrs H

Mrs H was born in August 1935 and is 75 years old. She is a white British woman who has lived in London for her entire life.

Her husband was born in Egypt in October 1950 and is now 60 years of age. He came to live in the United Kingdom in the mid-1970s and met his wife six months after arriving here. They have been together ever since, and married for over 30 years. It is clear that they are devoted to each other. They have no children.

For some years now, Mr and Mrs H have been living together in a pleasant flat. They live in social housing and do not have any significant savings or income with which to purchase additional care for Mrs H.

Mrs H has a number of significant health problems. They include vascular dementia, cerebrovascular disease, chronic pulmonary obstructive disease, ischaemic heart disease, hyperthyroidism and severe osteoarthritis in the neck, spine, legs and arms. She is often in significant pain, her mobility is very limited and she is doubly incontinent.

Her husband is also in poor health in some respects. He suffers from chronic obstructive pulmonary disease (COPD), peripheral vascular disease, back and knee pain. He is awaiting knee replacement surgery. At times he has struggled, heroically, to cope with his wife's health needs.

Mrs H had a dense stroke in December 2008, affecting her left-side, and then, in January 2011, a left parietal stroke affecting her right side.

After her first stroke, Mrs H was provided with care at home by the NHS from December 2008 to June 2009. During this six-month period, she received fully funded, free, NHS continuing healthcare.

Mr H's current position concerning her care relies in part on the fact that she had 63 hours of free NHS care during the period after her first stroke and discharge from hospital. By implication, he cannot see why her needs can be less after a second stroke and hospital admission.

In June 2009, following a decision to withdraw NHS continuing healthcare funding, the local authority reassessed Mrs H and offered a care package consisting of 52 hours, which included domestic, shopping and laundry services.

In July 2009, Mrs H was admitted to hospital to receive treatment for a blocked catheter. She was discharged on 21 July.

Mr H was offered a carer's assessment, which might lead to respite hours, but not the 24 hours of respite care each week which he considered was required. He told the social worker that he was going to move out of the flat and not support the care of his wife. The extent to which he did so is not entirely clear but he was present for most professional visits to his wife.

Mrs H was discharged with a care package comprising 49 hours per week plus three hours for domestic tasks, laundry and shopping. This care package remained in place from 21 July 2009 until 13 August 2009.

On 13 August 2009, Mr H ended the care package. It appears that he believed that his wife continued to require the level of support provided under continuing care. He stated that some carers had damaged property in his home, or stolen items from it, and had been disrespectful. The professionals involved in supporting Mrs H considered that, "Mr and Mrs H were very uncooperative with carers," and that Mr H had been rude and interfered with the provision of care. A further area of contention was that Mr H refused to have a Linkline personal alarm system in the home and to have a key-safe box installed.

Following the termination of the social services care package, on 13 August 2009, District Nurses reported difficulty gaining access to the flat in order to provide catheter care.

The nurses said that Mr H could usually only be contacted in the afternoon and often did not respond to calls or messages.

Mrs H was again in hospital from 28 August 2009 to 23 September 2009. During this admission, consideration was given to discharging her to a nursing home. This was "discussed with Mrs H, but she was very hostile to the manager from the nursing home who visited the ward." It was not clear whether she had capacity to make the decision for herself and she returned home.

By and large, the previous difficulties agreeing suitable and workable arrangements for consistent care continued.

Following an Adult Protection meeting on 21 April 2010, Mr H was offered the option of Direct Payments to fund his wife's care. He declined, either because he did not want "anything to do with social services" or because it would involve administering PAYE and national insurance systems which he felt to be too cumbersome.

On 27 August 2010, District Nurses agreed with Mr H that the District Nurses would be able to visit on Tuesday and Friday, between 12 noon and 1pm. However, some visits did not take place at the agreed times. According to the District Nurses, "The arrangement is difficult for the District Nursing Team to sustain because of clinical priorities … On numerous occasions in the past year this arrangement has not worked, sometimes because of DN delays and difficulty contacting Mr H to arrange an alternative ... or because no answer was obtained."

On 20 September 2010, Mrs H's capacity was assessed by Dr K, a consultant psychiatrist attached to the older age team, on a joint visit with her GP. Dr K reported, on 20 September 2010, that:

"I did not see evidence that her husband is not caring for her adequately. We saw her separately to him and she was positive about him and the care that he provides. She appeared clean and the flat was clean and tidy. When he was in the room she did not appear frightened of him. He spoke about appreciating her company and having a sense of responsibility towards her as they have been married for 35 years …. In my opinion it is currently in her best interest to stay with Mr H and for him to be her carer. However, his health is compromised and he may not be able to sustain the level of care she requires. Therefore regular contact with services is important so that services can step in and help when this is needed. It is very helpful that the community matron is seeing her. Anyone visiting needs to be alert to signs that her care is inadequate …. I have not offered Mrs H follow-up by MHCOP [Mental Health Care of Older People services]. I will discharge her."

At 4pm on 1 December 2010, a visit involving the police, social services and district nursing, requested by the district nurses, took place because of concern that District Nurses had not seen Mrs H for two weeks. Initially, Mr H refused to let anyone in and the local authority says that police threatened him with arrest. Upon checking Mrs H, it was found that her catheter was not blocked and that her skin was intact.

On 7 December 2010, Mrs H was again admitted to hospital following a blocked catheter at home.

On 4 January 2011, Mrs S suffered a second stroke. She was admitted to hospital and, on 6 January, was transferred to a specialist Acquired Brain Injury Unit (ABIU) at her current hospital.

Since admission, Mrs H has been fully assessed by the multi-disciplinary team (MDT). She has not made significant functional gains and is not expected to make any further improvement.

She remains an in-patient but, medically, has been ready for discharge for some time. Her medical condition on 2 June was summarised as follows:

"The nature of Mrs H's condition is that following a sub-acute left parietal infarct she is bed bound and fully dependent on care staff for activities of daily living. She requires a hoist and the assistance of 2 for transfer into a wheelchair. She is able to eat and drink independently with set up however is reluctant to do so at times. She has a supra-pubic catheter in situ, is continent of faeces and is hoisted on to the commode. Her pressure areas are intact at present."

Recent evidence given to the court by a Stroke Registrar indicates that Mrs H has a life expectancy of several years although "clearly this cannot be reliably predicted." The court needs to think about her care arrangements over this period,.

About the professional carers

The professionals who have been involved in providing care and treatment to Mrs H outside hospital include Dr K (Consultant psychiatrist, Mental Health Care of Older People services); Mr C (social worker and care co-ordinator); Dr Y (General Practitioner); PH (Occupational Therapy Team Manager); KM (Community Matron); SH (IMCA).

5 — MRS H's MENTAL CAPACITY

For the purposes of the Act, a person lacks capacity in relation to a matter "if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain."^[1] It does not matter whether the impairment or disturbance is permanent or temporary.^[2]

For these purposes, a person is unable to make a decision for herself if she is unable:

•    to understand the information relevant to the decision,

•    to retain that information,

•    to use or weigh that information as part of the process of making the decision, or

•    to communicate her decision (whether by talking, using sign language or any other means).^[3]

A person is not to be regarded as unable to understand the information relevant to a decision if she is able to understand an explanation of it given to her in a way that is appropriate to her circumstances (using simple language, visual aids or any other means).^[4]

The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent her from being regarded as able to make the decision.^[5]

The information relevant to a decision includes information about the reasonably foreseeable consequences of deciding one way or another, or failing to make the decision.^[6]

Presumption of capacity

Section 1 provides that a person must be assumed to have capacity unless it is established that she lacks capacity. Furthermore, a person is not to be treated as unable to make the decision in question:

(a) unless all practicable steps to help her to do so have been taken without success;

(b) merely because she makes an unwise decision.

Unjustified assumptions

A lack of capacity cannot be established merely by reference to a person's age or appearance, or to a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.^[7]

The standard of proof

In proceedings under the Mental Capacity Act "or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities."^[8]

Interim findings

Section 48 of the Mental Capacity Act 2005 enables the court to make interim orders and directions provided, firstly, that "there is reason to believe that [the person] lacks capacity in relation to the matter."

This is plainly a lower threshold than proof on balance of probability that the person lacks capacity. What is required is simply sufficient evidence to justify a reasonable belief that the person may lack capacity in the relevant regard. There are various phrases which might be used to describe what is required, such as "good" or "serious cause for concern" or "a real possibility" that the person lacks capacity, but the concept behind each of them is the same, and is really quite easily recognised.^[9]

The Evidence

Mr H believes that his wife has capacity to decide for herself where to reside upon discharge from hospital.

There is evidence that she has been consistent in her wish to return home. She also appears to appreciate that her memory is not now as good as it was and, according to her IMCA, she "realises that she needs some support [and] could identify support needs when offered examples." She is able to recognise that her husband has health problems of his own.

There is, however, a significant body of evidence which indicates that she lacks capacity to make the relevant decision:

a) When seen by Dr W (a neurology specialist) on 17 November 2008 after her first stroke, she was found to have suffered a "moderate intellectual decline" as a result of the stroke. According to Dr W, she "is currently performing at the impaired level on a non-verbal untimed test of general intelligence." Overall, the profile indicated "significant cognitive impairment consistent with widespread cortical dysfunction."

b) When Mrs H was seen by a community matron, KM, on 24 June 2010, she appeared to be drowsy, answered "don't know" to most questions and was unwilling to discuss her future care. She "was unable to identify the risks involved in her decision to remain at home with her husband providing all her care." She did "not have capacity to determine the safety of her current care."

c) As already noted, Mrs H's GP and Dr K, a consultant psychiatrist attached to the older people mental health team, jointly visited her on 8 September 2010, to assess her capacity to make decisions about her care. According to Dr K's report of 20 September 2010, she had been assessed by the memory service in December 2009, when a diagnosis of vascular dementia was made. When seen by the two doctors in September 2010, she "was aware that she needed help with things, but could not say exactly what help she needed and how this would be arranged." She "answered questions briefly, but appropriately. She frequently said 'I don't know' to questions. She was not able to discuss anything in depth. She was not able to weigh up information regarding her current or future care … She lacks capacity to make decisions about her care, including her future care. She fails the capacity test because she is unable to weigh up information to make these decisions."

d) A neuropsychological report was prepared in January 2011, following Mrs H's second stroke. Comparisons were made with her previous assessment on 17 November 2008. There had "been no significant change in her score on a test of general intellectual ability (CPM) from when first assessed approximately 2 years ago." On focal cognitive tests, "the main finding is a decline in nominal skills. Performance on all other tests remains broadly as when first assessed. Altogether, this profile remains characterised by rather widespread cognitive dysfunction." Her "impaired memory means she will have significant difficulty retaining new information."

e) According to Mr C's social work statement of 12 April 2011, "She has … experienced a degree of cognitive impairment associated with the original stroke (2008), affecting her memory, understanding, reasoning and decision making."

f) According to the Form COP3 medical assessment completed by Dr R (a hospital doctor), Mrs H lacks capacity to make decisions about her residence and care needs, being unable to understand, retain or weigh relevant information. She is "unable to process + understand the relevant information required to make decisions re ongoing care. She requires support and assistance to make even basic decisions." A formal psychological assessment had highlighted "memory impairment within the context of significant global cognitive dysfunction." Even if supported, "she is unable to weigh up the pros + cons of simple decisions regarding her care."

g) A fresh COP3 medical assessment was prepared by a second hospital doctor, Dr O, in May 2011. He noted that Mrs H had suffered "multiple cerebral infarctions at varying ages which are widespread + involve both hemispheres. Specifically, there is an old right frontal infarction, and more recent left parietal + frontal infarctions." According to Dr O, she "is unable to process information relating to her ongoing care needs to a sufficient level to allow a balanced, informed decision." Formal neuropsychometry tests had revealed "memory impairment on a background of significant global cognitive dysfunction. Bedside tests of registration and recall mirror these findings." She "is unable to hold complex information in her memory and thus is unable to weigh the pros + cons of her possible long-term care choices."

h) According to Mr C, the social worker in the case, she lacked capacity to execute an LPA when assessed by him in May 2011. She has cognitive communication impairment affecting her ability to find words when interacting with others. The Speech & Language Therapist (SALT) had "confirmed that Mrs H cannot discuss any abstract ideas or concepts and has major difficulties discussing even daily living or care tasks" (Mr C's LPA capacity assessment of 25 May 2011).

The preponderance of the evidence points to a conclusion that Mrs H lacks capacity to make the relevant decision, and is certainly sufficient for an interim declaration to this effect. I would ask the parties to consider whether it is in Mrs H's best interests to focus on this issue.

6 — PREVIOUS HEARINGS

There have been three hearings at the Court of Protection to date: on 19 April 2011, 10 May 2011 and 31 May 2011.

Hearing on 19 April 2011

An initial directions hearing took place before District Judge Batten on 19 April 2011. The court made interim declarations to the effect that Mrs H lacked capacity to make decisions concerning her residence, care and treatment, and that it was in her best interests to remain an in-patient at her current hospital until further order.

Following the hearing, a roundtable meeting took place on 9 May 2011. The solicitor instructed by the Official Solicitor chaired this meeting. No firm agreement was reached as to the most appropriate way forward.

Hearing on 10 May 2011

The matter first came before me on 10 May 2011. I made interim declarations that the court had reason to believe that Mrs H lacks capacity to litigate and to make decisions about where to live and her care and treatment. It was further declared in the interim that it was lawful and in her best interests to continue to remain in the hospital until further order.

The court directed the local authority to file occupational therapy evidence about the risks involved in hoisting Mrs H; evidence of Mrs H's entitlement to fully-funded NHS continuing healthcare following discharge; and evidence about her capacity to execute a Lasting Power of Attorney in relation to personal welfare decisions. In addition, the hospital was directed to file a medical report concerning Mrs H's life expectancy, her husband was to list which parts of the proposed home care package he agreed with, and which he disagreed with; and the parties were given permission to instruct an independent social care expert.

Various alternative legal frameworks were discussed at this hearing: guardianship under section 7 of the Mental Health Act 1983; whether Mrs H has capacity to execute a Lasting Power of Attorney in relation to personal welfare decisions (in which case she might be expected to appoint her husband to act for her in such matters); the appointment of the local authority as personal welfare deputy for Mrs H; whether Mr H would comply with orders directing him to allow access to his wife; and Mrs H's rights of occupation in the home. It was agreed that none of these options were suitable at that stage, either because of Mr H's opposition (for example, he would be his wife's nearest relative under the 1983), or because the framework would involve separating the couple, or because they offered nothing that an order of this court in these proceedings could not also offer.

Hearing on 31 May 2011

On 31 May 2011, not all of the evidence directed by the court at the previous hearing was available. There remained uncertainty about Mrs H's entitlement to NHS services following her discharge from hospital. The court was informed that the relevant NHS panel had refused fully-funded NHS care earlier that day. However, her entitlement to some NHS services and partial funding had not been decided, and there was no written statement of the panel's assessment of the services she requires.

By agreement with the parties, the court repeated the previous declaration, added an interim declaration that Mrs H lacks capacity to execute an LPA, directed the hospital to file the required evidence about Mrs H's life expectancy, sought clarification of Mrs H's entitlement to NHS services at home, and heard the oral submissions of the parties. Provision was made for limited further written submissions and a round-table meeting following receipt of the evidence as to life expectancy and NHS funding, after which I would decide the interim residence issue.

I have heard oral evidence from Mr C, the social worker, and from PH.

7 — DEVELOPMENTS AFTER 31 MAY

There have been a number of significant developments since 31 May which have led some of the parties to review their positions.

Entitlement to full NHS continuing healthcare funding

On 31 May 2011, the NHS continuing healthcare care panel met to consider Mrs H's application for full NHS continuing healthcare funding.

The completed Decision Support Tool (DST) summary presented to the panel was based on a comprehensive multi-disciplinary assessment. According to this assessment, Mrs H had a high level of needs in four domains (behaviour, cognition, mobility, drug therapies and medication: symptom control); moderate needs in five domains (psychological and emotional needs; communication; mobility; nutrition: food and drink; continence; skin, including tissue viability); and a low level of needs in two domains (breathing, altered states of consciousness).^[10]

When deciding whether a person has a primary health need, a Primary Care Trust must consider whether the nursing or other health services required by that person are:

(a) where that person is, or is to be, accommodated in a care home, more than incidental or ancillary to the provision of accommodation which a social services authority is, or would be but for a person's means, under a duty to provide; or

(b) of a nature beyond which a social services authority whose primary responsibility is to provide social services could be expected to provide,

and if it decides that the nursing or other health services required do, when considered in their totality, fall within paragraph (a) or (b), it must decide that the person has a primary health need.

According to paragraph 32 of the Decision Support Tool:^[11]

A clear recommendation of eligibility to NHS Continuing Healthcare would be expected in each of the following cases:

A level of priority needs in any one of the four domains that carry this level.

A total of two or more incidences of identified severe needs across all care domains.

If there is:

one domain recorded as severe, together with needs in a number of other domains, or

a number of domains with high and/or moderate needs,

this may well also indicate a primary health need. In these cases, the overall need, the interactions between needs in different care domains, and the evidence from risk assessments should be taken into account in deciding whether a recommendation of eligibility for NHS Continuing Healthcare should be made …'

According to paragraph 33,

If needs in all domains are recorded as "no need" this would indicate ineligibility. "low" Where all domains are recorded as "low need", this would be unlikely to indicate eligibility. However, because low needs can add to the overall picture, influence the continuity of care necessary, and alter the impact that other needs have on the individual, all domains should be completed.

The panel challenged the multi-disciplinary team's scoring of "high" in relation to the drug therapies and medication domain, considering that there was not enough evidence to support such a score.

The panel also challenged the multi-disciplinary team's scoring of "low" in relation to the consciousness domain, "as there was no evidence of any history of seizures."

These revisions would reduce the DST scores to a high level of needs in three domains; moderate needs in four or five domains; a low level of needs in two or three domains; and no needs in one domain.

Having reviewed the DST multi-disciplinary assessment, the panel considered whether the nature, intensity, complexity and unpredictability of her needs meant that she had a primary need for healthcare and concluded that she did not.

The decision may sit uneasily with the multi-disciplinary team's assessment, the DST scores, the fact that Mrs H previously received NHS continuing healthcare after her first stroke; and the views of some professional carers. For example, on 16 March 2011, Dr R (a hospital specialist) stated that Mrs H requires a 24-hour nursing care package and "this cannot be provided by social services"; and, in a report dated 17 May 2011, two other professionals described Mrs H as being "very difficult to engage with" and has having "highly complex medical needs."

Entitlement to joint NHS and local authority funding

What is called the High Needs Panel then met to consider Mrs H's case on 7 June 2011. It considered her eligibility for joint NHS and local authority funding.^[12]

The High Needs Panel looked at whether Mrs H had any health care needs over and above those which would normally be provided for by the Free Nursing Care contributions (FNC) in a nursing home placement, or by the District Nurses in the community. The Panel concluded, based on the evidence provided, that Mrs H's health needs did not make her eligible for joint funding over and above Free Nursing Care contributions and/or District Nursing input.

By 7 June 2011, the relevant NHS panels had decided therefore that Mrs H is not eligible for either fully-funded or jointly-funded continuing care.

At the court's request, consideration was then given to Mrs H's entitlement to intermediate care, occupational therapy and equipment services.

Entitlement to Intermediate Care

The local Intermediate Care Team concluded that Mrs H also did not meet the criteria for intermediate care. According to this assessment:

"If Mrs H were deemed by the Intermediate Care Services [ICS] to have the potential for rehabilitation, ICS would be provided either in a care home setting, Intermediate Care Unit, or at home. Mrs H has extensive personal care needs so if Intermediate Care Services were provided at home, then the Council's Reablement Service or other home care services would be arranged in line with those already proposed by the Council.

However, the Council's Social Services referred to the Intermediate Care Services for a decision as to the eligibility for any specialist Intermediate Care Services and their assessment is set out below:

"I have just seen Mrs H on ABIU at Queen Square. From reviewing her records, liaising with the therapy staff and assessing [her] it is very apparent that it would be inappropriate for her to have a period of intermediate care as she is very unlikely to benefit and an additional unnecessary move may in fact be detrimental to her current condition.

Her current level of mobility, function and care need is all at or near her baseline prior to this admission. She did not allow me to progress my assessment past shaking hands and this is consistent with her refusal to have therapy on the unit. Therapy staff report that she has not taken part in therapy and has therefore not made any change in function since admission. As she is now 5 months post admission it is extremely unlikely that she would make any progress in with function or independence in an intermediate care placement when she has failed to do so on a specialist unit."

The assessment seems to have been based on intermediate care in an institution, as no "additional … move" was envisaged. Rather, the Community Care (Delayed Discharges etc) Act (Qualifying Services) (England) Regulations 2003 define intermediate care as:

"… a service which consists of a structured programme of care provided for a limited period of time to assist a person to maintain or regain the ability to live in his home, and is required to be provided free of charge to any person to whom it is provided for any period up to and including six weeks … Exceptionally, for example following a stroke, patients may require intermediate care for slightly longer than six weeks."

Entitlement to OT and community equipment services

According to the evidence provided to the court, Community Equipment Services are jointly funded by the local authority and the local NHS; Mrs H already has suitable equipment and would need to be reassessed before any new equipment could be provided; a community occupational therapist has been allocated and can liaise with the hospital team to determine if a replacement chair and sling are still required. No matter where Mrs H goes following discharge, an assessment of that environment will be needed, to ascertain whether she would benefit from further equipment.

It should be noted that it is not agreed that Mrs H already has suitable equipment. Apart from Mr H's considerable reservations, the social worker Mr C says, in his statement of 5 May 2011, that some equipment in the home is not adequate or suitable.

Whatever view one takes about the fairness, correctness or appropriateness of the NHS assessments and outcome decisions, the current arrangements are that no NHS provision other than GP, occupational therapy and district nursing services will be available to Mrs H in her home following discharge from hospital.

Possibility of a challenge by way of judicial review

At this point, there was some correspondence between the parties about a judicial review of the NHS continuing healthcare funding decision.

Mr H does not accept that his wife is not entitled to NHS continue healthcare funding following her discharge from hospital, and it may also be the case that the Official Solicitor is reserving his position on this point.

It is unlikely that any appeal using NHS appeal procedures could be resolved quickly enough to assist the court in relation to the question of Mrs H's interim residence.

Partly because of the possibility of judicial review proceedings, the local authority discussed with NHS managers and clinicians options to facilitate discharge for Mrs H from her acute hospital bed.

Following these discussions, social services and the NHS reached an agreement that the NHS would facilitate a "step down" nursing home placement for up to 6 weeks, in order to enable Mrs H to be discharged from hospital pending the final hearing in July. (This is a form of intermediate care.) The "normal duration of such placements is two weeks, the additional 4 weeks being to assist the court with further possible solutions. Local social services would contribute to the NHS costs in providing a 'step down' placement."

On 9 June 2011, the Official Solicitor noted that the costs involved in NHS appeals procedures could not be recovered either by way of public funding or by recourse to Mrs H's extremely limited means. The position concerning judicial review was different, but the existence of alternative remedies needed consideration.

On 13 June 2011, the NHS trust responsible for Mrs H's current hospital wrote to inform the court that the second stroke had "caused mild new impairment (mainly facial weakness). I understand … that she has been back to her previous level of disability prior to the stroke, and medically fit for discharge …" The multi-disciplinary stroke team had assessed that she was not participating in an active rehabilitation programme. The hospital noted, in a helpful, patient, fair and courteous way, that other patients required the bed.

On 14 June 2011, Mr H informed the court that he had reconsidered matters and was willing to compromise his previous position:^[13]

"Upon considering the matter further Mr H has stated that despite his belief that his wife requires package of 63 hours carer input per week, he is willing to reach a compromise upon the amount of hours provided for carers.

Mr H has instructed that he is willing to accept the 49 hours offered by the [local authority] and provide from his savings the cost of any further care that Mrs H requires.

Ms H does however seek that the care provided is based upon one carer from 2pm until 10pm Monday to Saturday which will amount to a total of 48 hours per week.

As funding is available for 49 hours of care per week Mr H has asked that the additional 1 hour per week be accumulated and then be used for times when additional care is required."

Mr H's helpful concession led to a roundtable meeting being held on 22 June 2011, at which the parties were able to discuss their areas of disagreement. As can be seen from what follows, the meeting was productive and resulted in the parties being able to agree some, but not all, of their remaining differences.

Outline plan for care at home and Scott Schedule

The outline of a care package to be provided to Mrs H if she returns home, and the areas of disagreement, are set out in a helpful "Scott Schedule" drawn up for the roundtable meeting on 22 June 2011. The numbered paragraphs below set out what the local authority believes can or should be agreed and provided; the italicised paragraphs contain Mr H's views and any relevant explanations of the respective positions.

Number of hours of care

1.. Social services care package of seven hours per day (49 hours per week).

This is the number of hours assessed by the local authority as meeting Mrs H's needs. Mr H considers that 61 hours should be provided, 55 by the local authority and an extra six hours funded by him, but this is not agreed.

The social services care to be provided during each 'block' of hours

2.. Carers to assist Mrs H with personal care, toileting, transfers to & from the bed, and chair. Assist with preparing breakfast, assist Mrs H with eating & drinking. Assist with evening meal. Carers to re-position Mrs H to prevent sores.

As assessed by the Social Worker, Occupational Therapy Assessment in conjunction with OT from the National Hospital on the basis of Mrs H's identified needs. Mrs H's needs and care plan will be reviewed within 6 weeks of any return home.

Mr H's position is that he expects the carer to provide Mrs H with care as required during that time. Mr H also expects the carer to undertake some domestic chores such as hovering and dusting the living room, hallway, Mrs H's room and the bathroom. Mr H recognises that Mrs H needs to have support during her waking hours. Mr H considers that due to Mrs H's asthma, her limited mobility and her history of strokes she must have someone with her at all times to ensure she is supported and that emergency services can be alerted if necessary.

When each block of hours will be provided

3.. Carers in the morning between 11.30am – 1.00pm for 1 hour, 15 mins to assist Mrs H with personal care, followed by 1 Carer for 45 mins to prepare and give Mrs H breakfast and drink.

4.. Carers for 45 mins at 4.30pm to assist Mrs H with personal care & toileting, sit in chair, or return her to bed.

5.. Carers at 8.00pm for 45 mins to assist Mrs H with personal care, and help her to get ready for bed. Carers will also allow 45 mins to assist Mrs H with evening meal.

As assessed by the Social Worker in conjunction with health professionals on the basis of Mrs H's indentified needs. Carers have been allowed extra time to assist Mrs H to eat and swallow properly, and to assist with drinking as recommended by the Speech & Language Therapist due to Mrs H's swallowing difficulties.

Mr H would like both the first and last 'visits' to be later, based on their lifestyle of getting up and going to bed later. Mr H's position is that the first carer should provide 8 hours care per day from 2-10pm, 6 days per week, Monday to Saturday. The second carer should provide 2 hours care per day from 5-6pm and from 9-10pm, 6 days per week Monday to Saturday.

Mr H considers that Mrs H needs to have support 24 hours a day. Mr H recognises that he cannot provide Mrs H with this support alone and seeks assistance from the local authority. Mr H does not however consider that allotting the hours of care throughout the day will assist Mrs H. He shares the local authority's views that Mrs H should not be left alone, however, he does not consider that the package put forward by the local authority will allow for basic chores such as shopping and paying household bills during the time in which the carers will be present.

Number of carers during each block of hours

6.. Two carers to be present to provide care during the scheduled times.

As assessed by both the Community Occupational Therapist, and the National Occupational Therapist in consultation with the medical treatment team at the National Hospital.

Mr H has reconsidered his position and feels it will be necessary to have at times during the day two carers to assist Mrs H with her toileting. Mr H's position is not that he wouldn't want two carers to be present, but that as he believes the number of hours granted should be greater, only having one 'stretches' these further. He does not, however, object to having two per se. As already noted, on the basis of the limited hours being made available, Mr H would prefer the First Carer to attend from 2pm until 10pm, and the Second carer from 5-6pm and from 9pm until 10pm. Mr H does not feel confident that any other person save for himself is able to hoist Mrs H alone.

Frequency of visits by District Nurses

7.. Two weekly visits by District Nurses on Tuesdays & Fridays at approximately 11.00am, to provide bladder washout & catheter care, and refitting the suprapubic catheter.

Mr H considers that whilst there is soreness and the possibility of infection the district nurses should visit daily.

Mrs H has soreness and dressing around her supra-pubic catheter and due to concerns around the possibility of infection Mr H would consider that Mrs H should have daily visit until the problem clears. However, Mr H agreed that he would be guided in this respect by the PCT's assessment of how often district nurses need to attend. The district nurses will use best endeavours to call him if they are running late, and he won't unreasonably prevent access to them. The LA will want a written agreement to that effect. Mr H agreed to this.

GP registration

8.. Mrs H is currently still registered with the K Medical Centre, and can access a GP from K Medical Centre. If Mr H would like to re-register with another medical practice, this must be done prior to Mrs H's discharge from hospital.

All parties agree on the need for GP input. In particular, Mr H agrees that Mrs H needs to be registered with a suitable GP to carry out regular home visits in order to check on Mrs H's health and review her medication. Mr H is getting a list of alternative surgeries together, and will de-register Mrs H from K Medical Centre, and re-register her elsewhere once an Order has been made to this effect. However, if it is not possible to do this before Mrs H's return home, he will be willing to accept another GP from K Medical Centre for Mrs H.

Provision of equipment (OT assessment, armchair, sling)

9.. An occupational therapist (OT) will assess the home prior to discharge to ensure appropriate equipment is in place prior to Mrs H's discharge from hospital. The OT will be present on the first carers' visit in order to assess Mrs H's moving and handling needs and to assess if further equipment is required. The hospital OT will liaise with the community OT.

Mr H agrees that Mrs H requires input from occupational therapy services. He believes that his wife requires a new sling, armchair and bed. Mr H will cooperate with the OT assessment of Mrs H, and be guided by its outcome. The LA want a written agreement to this effect. Mr H agreed to this. The only caveat Mr H had (which wasn't agreed to by the LA) was that he wouldn't agree to / accept anything that Mrs H actively disliked e.g. the armchair which she found uncomfortable. The LA would rather he 'assisted' them in 'convincing' Mrs H to e.g. move from her bed to sit in the chair.

Hoisting

10.. Two carers are needed for tasks that involve using the hoist slings, sliding sheets, moving Mrs H from the bed into the wheelchair, lowering her in her bed, hoist-lowering her into the bath, rolling her on the bed when changing her pad, hoist-transferring her to and from the wheelchair to the bathroom or lounge.

The local authority's position is that two carers are required for hoisting, "as indentified by both the Community Occupational Therapist & the National Hospital Occupational Therapist and as recommended by the Medical Treatment Team." This is essential due to Mrs H's weight and lack of good posture & balance stability. The carers should have the relevant training including advice about back care and access to regular supervision.

Mr H believes he is capable of hoisting Mrs H alone and did so prior to her admission to hospital. He believes that two outside carers are required to hoist his wife. He lacks confidence in outside carers being able to hoist Mrs H alone and therefore seeks a second carer to assist from 5-6pm and 9-10pm Monday to Friday.

Access by professionals

11.. The local authority considers that it is imperative that an emergency key holder is identified in case of emergency and if Mr H is not available.

The local authority wants a designated contactable person to hold a spare set of keys for access in the event of emergency. Mr H will not allow a key to the family home to be provided to a third party. If the proposals put forward by Mr H are agreed, he will be there to allow entry and when he is out the carer will be with his wife, thereby providing her with assistance in an emergency.

Alert systems (such as Linkline, telecare, mobile)

12.. The local authority will assess Mrs H to see if she can use Linkline, telecare or a mobile phone.

It is not known if Mrs H can use the mobile phone or one of the other listed options in order to summon for help in case of emergency.

Mr H does not consider that his wife would be capable of using a Linkline Pendant. He says that she has her mobile phone with her at all times and is capable of alerting the police if a problem arises. Furthermore, if the care package that Mr H has sought is implemented then the relevant people will be alerted swiftly.

The parties have agreed that the local authority will liaise with the hospital occupational therapist for her/him to carry out an assessment. Both parties will be guided by the conclusions of this assessment.

Carer's assessment

13.. The local authority proposes a carer's assessment of Mr H in order to identify any support and services he requires, including respite care.

A Carer's Assessment can commence when Mr H has agreed.

Mr H's needs as a carer have not been identified because he has so far refused to engage with a carer's assessment. Mr H is willing to participate in a carers assessment and he recognises the benefit in a carers assessment being carried out.

The assessment will take place shortly.^[14]

Mr H's health needs

14.. Mr H is due to undergo a knee and hip operation but the local authority is unable to assess the length of respite required because Mr H's current medical condition is not known.

The local authority proposes that Mrs H is admitted temporarily to a nursing home for the duration of planned hospital operation and treatment and that, following his discharge from hospital, consideration is given to increasing the support plan.

Mr H states that he does not intend to have any operation in the foreseeable future. He considers that his priority is getting his wife home and settled. He will consider having surgery once his wife is home and settled. He does not yet know how long the procedures will take.

The parties agreed that Mr H's physical health needs will form part of the carer's assessment.

Mrs H's social isolation

15.. Local authority to work with Mr H to ensure that Mrs H has regular visits from family and friends.

The local authority is concerned that it has not seen any evidence Mrs H socialises with family and/or friends, and wants a social worker to review her "social and emotional support needs."

Mr H disagrees that his wife is socially isolated. She has a small but very close circle of friends she has had for most of her life. The couple's friends, family and neighbours provide her with social interaction and stimulation.

The local authority accepts that it cannot insist that Mrs H socialises more.

8 — THE POSITION TODAY

The Official Solicitor wrote to the court on 24 June following the roundtable meeting, and I received this letter on 30 June, on my return from leave. The Official Solicitor observed that,

"The roundtable meeting did not lead to agreement between the local authority and Mr H as to the number of hours of carer support to be provided for Mrs H on an interim basis should she be returned to the family home. Other significant areas of dispute remain, although these were narrowed somewhat."

The Official Solicitor helpfully listed the options available to the court, as agreed by the parties:

(a) a return home, with a care package;

(b) a return home, without a care package;

(c) remaining in hospital;

(d) placement in a residential care home.

The Official Solicitor regretted that it had not been possible for the local authority and Mr H to reach an agreement, "and regrets further that it appears that it will not now be possible for such agreement to be reached, without the need for judicial intervention." It would be in Mrs H's best interests for the Court to now proceed to give judgement.

In terms of the duration of the interim order, it seems likely that the case may still take some months to resolve because of the number of issues which remain in dispute.

9 — THE LOCAL AUTHORITY'S CASE

The local authority has filed a number of statements made by professionals involved in the provision of care or treatment to Mrs H.

Mr C's statement of 5 May 2011

Mr C tells the court that carers need a set of keys or Mr H must agree to be present at agreed care times; sometimes Mr H has not answered the door when District Nurses have visited or has been uncontactable to rearrange the visit; Mrs H will be unable to call for help in an emergency unless a Linkline pendant call system, or another suitable mechanism, is in place; some equipment in the home is not adequate or suitable; Mrs H sits in her sling when in her armchair; it is not safe for one person to operate the hoist; Mrs H's health and well-being will be compromised if Mr H refuses a care package or tries to provide care himself; Mrs H may be taken to A&E at times when her needs could be addressed at home by District Nurses.

Mr C states that Mrs H experiences a lack of stimulation and varied daily activities at home but that taking her to a day centre would be very difficult.

He says that the respite issue "has proved to be a long standing stumbling block that Mr H has always consistently felt unable to compromise on. [The local authority] in equity with all service users only offers a maximum 3 hours (or equivalent) per week Carer's respite in the form of a sitting service. There are very few cases where this level of respite is exceeded."

Exhibit 1 to the statement comprises a support plan for discharge from hospital. Mr H declined to participate in identifying a placement and therefore an IMCA (SH) was involved. Two nursing homes were identified. The discharge/care plans have a proforma feel to them, in that most of what is written about the two homes is identical. A qualified nurse will be on duty at all times. Mrs H will have a comfortable single room. She will have a bladder wash-out twice weekly by a qualified nurse and be registered with a GP. "Ideally she would have a hoist attached to the ceiling but mobile hoists are thought to be adequate." She "would be encouraged to participate in a range of activities.

Mrs H spoke with the IMCA on three occasions, "specifically stating that she did not want to go to a nursing home, but was not able/willing to elaborate on this."

Exhibit 3 sets out Mr C's reasoning in relation to the Court of Protection application. Inter alia, Mr H requires surgery on his knees; he has cancelled a number of visits by professionals because of ill-health, and has requested six hours per day carer's respite. On 8 September 2010, Dr K and Dr Y concluded that Mr H was providing an adequate level of care and giving (sporadic) access to professionals, and it was in her best interests to remain in her own home. After this, Mr H wanted to change his GP, and the District Nurses found it difficult to gain access despite arriving at the correct time. Indeed, over the past two years, District Nurses have experienced continual problems gaining access, partly because of delays in arriving at Mrs H's home caused by their other clinical priorities and unanticipated problems. Mr H "was not able to adapt to this and would not permit the District Nurses access if they did not arrive between his preferred period of 1-2pm." "A joint visit involving the police, social services and district nursing, requested by the district nurses, took place on 1 December 2010 because there was a period of nearly two weeks when access to Mrs H was not permitted by Mr H. It has "not been possible, despite many discussions with Mr H by all involved professionals, to persuade Mr H to compromise on his request for a very large carers support plan." Because of "the failure despite considerable effort to maintain a sustainable support plan all professionals involved in community support now agree that placement is the only option, because all alternatives have now been explored."

Exhibit 4 is a report "relating to incidents of non-cooperation." Mr C states that on 13 August 2009 Mr H cancelled the social care package provided by local authority. "At this time … voluntary placement in a nursing home was discussed with Mrs H, but she was very hostile to the manager from the Nursing Home who visited the ward." Following the termination of the care package, District Nurses reported difficulty in gaining access to the flat in order to provide catheter care. On 28 August 2009, Mrs H was admitted to UCH. It was agreed with Mr H that the District Nurses would be able to visit on Tuesday and Friday, between 12 noon and 1pm. However, the arrangement was "difficult for the District Nursing Team to sustain because of clinical priorities … On numerous occasions in the past year this arrangement has not worked, sometimes because of District Nurse delays and difficulty contacting Mr H to arrange an alternative … or because no answer was obtained." When professionals visited with police officers on 1 December 2010, initially Mr H refused to let anyone in and the police threatened him with arrest.^[15] Upon checking Mrs H, it was found that her catheter was not blocked and that her skin was intact. Mrs H was later admitted to UCH on 7 December 2010 following a blocked catheter.

Statement of KM (community matron) dated 25 April 2011

KM is a registered nurse (RN). She states that her role entails the case-management of patients with complex health-care needs and the provision of skilled nursing care in patients' own homes. She has been involved in case since her first visit on 12 March 2010. Mrs H was referred to KM by Dr Y (Mrs H's GP) "as she was having frequent hospital attendances and was not allowing District Nurses to visit regularly for planned catheter care." "The referral was initially declined as Mrs H had previously been under the care of another Generalist Community Matron, Mrs Cathy Barnes. She had been discharged from Mrs Barnes' caseload as she was non-compliant with care and had declined any intervention or input from Community Matron Services."

Mr H was reluctant to accept the help of community matron services but agreed to a 12-week trial period. On 19 March 2010, Mrs H declined a top to toe assessment by KM. Mr H said he would not open the door to anyone until midday as Mrs H did not wake up until late in the morning; she was more alert in the afternoons.

Manual handling report of 17 May 2011 (PH and LR)

Mrs H is 5'1" tall and on 14 May 2011 she weighed 14st 2lb. She is non-weight-bearing and is hoisted for all transfers. "The skin integrity on her pressure areas are intact, just some areas are red. There is some redness around her supra-pubic site, and there is a small amount of leakage from the supra-pubic catheter."

Statement of PH dated 19 May 2011

Ms PH summarised her assessment of the risks to Mrs H in her own home: she is unable to let any visitors in; Mr H will be out at times and his wife will be alone for part of the day; Mr H is awaiting surgery for his knees and had requested rails in his hall; he might fall and Mrs H not be able to summon any assistance; Mr H would only let the District Nurses or carers in during a limited time slot, with the result that on some days Mrs H may not receive the care she needs; in the past, Mr H was critical of carers and would join in with providing care; Mr H carried out the hoisting on his own, "which I assessed needed to be done by two people. He left the sling under her in the armchair. The sling is not designed to be sat on and she would be more at risk of developing pressure sores by remaining sitting on the sling." Mrs H's "eating pattern at home was not following a usual pattern of breakfast in the morning, mid-day lunch and a mid evening dinner … She told me that she would wake very late in the morning, not having had her first meal often till mid-day." Her last meal would be around 11.00pm.

IMCA Report of Ms SH, 17 February 2011

The IMCA report states that the "key worker and decision maker" believes it is in Mrs H's best interest to move to 24 hour nursing care. "I met with Mrs H three times … When Mrs H was with her husband she engaged well." "I explained about a 24 hour nursing service, to which she clearly responded "no thank you." I explained what a nursing home was like, again she said no, especially about having nurses around."

Local authority's Submissions

1.. The local authority seeks declarations that an interim move to a nursing home is in Mrs H's best interests.

2.. Mrs H is ready for discharge from hospital subject to suitable provision for her care. The hospital has confirmed that all assessments are finished, and that there is no medical treatment outstanding.

3.. The hospital environment – particularly a specialist hospital with regimes suited to those with brain injury – is not considered appropriate. Prior to admission it appears that Mrs H left her bed on a regular basis, at least to the extent that inquiries were being made as to the suitability of her chair and sourcing a new one. In hospital she frequently refuses to leave her bed. Residential care would provide, in the council's submission, a more stimulating environment as well as appropriate care and that might encourage Mrs H to participate to the extent that she is able to.

4.. The local authority is willing to support Mrs H in returning home and has provisionally arranged a care package consisting of 49 hours per week of social care. That would be in addition to medical care being provided by the GP and district nursing service and such additional support as may be available to Mr H were he to agree to a carer's assessment.

5.. However, if Mrs H returns home with a care package that includes these services, the likelihood is that Mr H will not co-operate with such a package, putting her health and welfare at risk.

6.. No complaint or challenge has been made or threatened in relation to the council's assessment that Mrs H's community care needs can be met by the provision of 49 hours of care. It is the council's statutory function to assess the need for community care services and to meet those needs which are eligible needs according to its eligibility criteria.

7.. The social worker and other professionals have identified risks to Mrs H's health or welfare should Mrs H return home to be cared for full-time by her husband with minimal support from District Nurses, no GP and no social care support.

8.. District Nurses, and the joint agencies including health care, agree that it will be difficult to manage a care package given the history of lack of co-operation with health and care providers and they consider such an arrangement to be unworkable in Mrs H's case.

9.. Mr H has unreasonably refused offers of equipment, assistance and access by medical professionals to Mrs H to ensure her care at home.

10.. Reports show that manual handling activities require two persons for safe performance, because Mrs H needs to be hoisted, and that such handling carries a risk of pain to Mrs H as well as risk to the handler. In the past Mr H has allowed the sling to remain under Mrs H when hoisting causing risk of pressure sores.

11.. If anything happened to Mr H (such as a fall, or a failure to return home) then Mrs H could not raise the alarm at home because she does not have the cognitive ability.

12.. Mrs H has care needs which Mr H is unable to meet in light of his own physical health limitations and the lack of any contingency or respite provision in his plan to care for Mrs H at home. He does not acknowledge the need for support to be provided to him in his role as carer.

13.. In the absence of full commitment to the local authority care package from Mr H, residential care is considered to be in Mrs H's best interests. There will be risk to Mrs H's safety and wellbeing if she is returned home. In addition to the risk of general neglect, she will be at risk of pain, injury and illness.

14.. The court should proceed on the basis that there has been a lawful assessment of Mrs H's care needs and that in the absence of his demands for additional care provision being met from any source, Mr H will not agree to the care package. In those circumstances care cannot be provided to Mrs H at home and the risks arising from lack of care are significant.

10 — MR H's CASE

In his undated statement to the court, Mr H relies on the following facts and observations:

1.. He and his wife are a devoted couple who have supported each other during the thirty years they have spent together.

2.. He is in despair at the prospect that they might be separated.

"What I will say is that I have been married to JH for over thirty years and during that time we have been devoted to one another. I do not consider it to be an understatement to say that we cannot live without each other and if the court went against my wife, mine and the wishes of her family and placed her in a nursing home I believe it would be the end of us. I do not say this lightly and I do not want this to be interpreted as a threat, it is a simple fact."

"One thing I would wish to make clear is that this is our life, [JH] and mine, we have lived together happily for over thirty years and are still devoted to one another. The professionals involved have come into our lives and instead of trying to understand us they have tried to impose their thoughts about JH's care on us. These people will come and go, there will be different carers, social workers and district nurses that will come and go from our lives, but we are each others constants. We are husband and wife and this is our life, this is not work, not something we will be involved in for a few months here and there before we move onto a new client but it is our life and the outcome of theses proceedings have the ability to break up a loving family because we are considered to be difficult. I am made out to be causing harm to my wife, this is simply not true. The care I provide to my wife stems from the love and respect I have for her and the wish for her to be happy. The care I give her is not because I am being paid to do it. When I give her care I am not restrained in the time I can dedicate to her because I have several other service users that need my attention as would be the case if she were placed in a nursing home. The level of care I can provide for my wife will always be superior to that provided by people employed to provide it.

It can be seen that from the evidence of the local authority there has been no reference to any criticism of the care I have provided to her.

I know that I may come across as being difficult and that I may appear to be a stubborn man, but everything I have ever done has always been with the belief that I am doing in her best interests."

3.. Mrs H has consistently expressed the wish to return home, to live with her husband, and she does not wish to be moved to a care home or nursing home.

"When we first moved to Copenhagen Street 6 years ago my wife asked me to make this a home for her and I have taken steps to do so. I have sought to provide her with anything she asked for and to keep our home presentable and comfortable for her."

"My wife will most certainly go into decline she has always been very clear to me that she did not want to go into a nursing home, or a similar environment and I made a solemn promise to her many years ago that I would do everything I could to ensure that she was cared for in her own home by myself."

"Everyday she tells me when I visit that she is upset and feeling low and she wants to come home. It breaks my heart to see her crying and begging me to take her home, she will not eat or drink during the day and spends much of her time sleeping or pretending to sleep until I arrive in the afternoon. When I get to the hospital I will often find her lunch sitting untouched on her bedside table … and she will not have consumed much if any water which is very bad as she needs to consume water throughout the day to make sure her catheter works sufficiently."

4.. Before her strokes, his wife was able to defend herself if there was any criticism. She was more than capable of putting [the GP] in his place "if she felt he stepped over the line."

5.. Mr H wishes his wife to return home where he will resume his role caring for her. He sees himself as giving effect to Mrs H's own wish to remain in her own home, with as much privacy as possible. He cannot watch her go into decline. He would find it difficult or impossible to see her if she goes into a nursing home.

"I cannot stand by and watch my wife give up hope, which I am certain is what will happen. My wife is a very strong woman in many ways but it will destroy her if she cannot come home and in turn this will destroy me."

"As things stand I am more than capable of providing her with suitable care, nothing has changed since her admittance to hospital in January 2011."

6.. Mr H has always put his wife first. He has delayed obtaining treatment for himself due to his concerns about the care she would receive while he was recovering from treatment and, for similar reasons, has not returned to Egypt for over 10 years. He has used their savings for funeral expenses to finance care for her.

7.. Mr H is willing to work with a package with the elements broadly described by local authority in the document headed, "Support Planning for Return Home".

8.. Mr H does not feel he can compromise Mrs H's life, health and wellbeing. Everything he asks for is to ensure Mrs H can have an adequate care package in place to ensure a successful return home."

"I will not accept inappropriate equipment for her… as her primary carer I know exactly what she requires and I won't accept anything less for her."

9.. Mr H admits there have been times when he has disagreed with the local authority about the care that his wife should receive. Due to his frustration, he has at times stopped services being provided. This has never been malicious and has been caused by his frustration at the failure of the local authority to provide the right level of care to his wife.

"One thing I am sure the court must see often is the frustration of family members towards service providers that do not provide their loved ones with an appropriate level of care. I do not deny that I have very high expectations of the level of care that should be provided to my wife, but I do not consider this to be unreasonable. The professionals involved in my wife's care are exactly that, they have taken on this work as their profession and I would therefore expect them to do their job well."

"If I have refused services on her behalf it is because of our frustration that she was not provided with the level of support that I was told she would receive."

"I found myself so frustrated by the lack of support from social services I gave them an ultimatum, provide us with the support we require or do not bother. I had reached the end of my tether at this point …"

"[Mr H] told us about their services being cut. She had continuing care for a few months when she received 3 visits lasting 2 hours each per day and he had 6 hours respite per day, 5 days per week. She was then found not to be eligible for continuing care and they were offered 1 hour of care 3 times per day. He felt that this was inadequate because it is not flexible enough and he would therefore rather not have it … He feels very let down by services. He thinks that the financial cuts are more important than patient care."

"In the summer of 2010 after finding that the local authority were not going to help us I felt that drastic action was required. I told the local authority that I would let them provide all of her care and I would wash my hands of them. I left the family home and was very upset by the lack of suitable care that was provided for her. During the time that I was away the carers broke my settee by damaging the arm of the sofa when they slept on it."

The amount of respite care offered to him was so limited as to be "as good as useless …" Respite care was required so that his time would be freed up to do other things, "such as our shopping, paying bills, attending my medical appointments, all of the day-to-day things that are required to get by."

10.. Mr H fully accepts that his wife requires GP services. He was approached by the practice manager to see if it was possible to work with another GP within the practice. Although he appreciated the sentiment, he felt that it would never work.

11.. The local authority's account concerning the provision of a new bed, sling and chair is not accurate. It is not true that he has "unreasonably rejected all offers of equipment." Mr H is more than happy to accept equipment that is suitable for Mrs H. He is willing to engage with an occupational therapist, to ensure that his wife has the necessary equipment for her care. However, he will not accept unsuitable equipment on her behalf or insist that she uses furniture or equipment which states causes her pain.

12.. As concerns his wife's bed, she used to hit her head against the bars of the bed. Mr H used to place a pillow there to prevent her from accidentally hitting her head, but found that this inhibited her movements due to her size and the fact that the bed was not big enough. He made it clear that it was vital to be able to keep her mattress, which was specifically chosen for her needs and limited mobility. The mattress massages her and helps to ensure that she does not suffer with soreness, a common problem for people with limited mobility. The replacement bed was not as described but more like an ordinary double bed. It did not have the mattress his wife required. He was told that if he wanted the specific bed for his wife, he would need to purchase it himself, at a cost of several thousand pounds.

13.. As concerns his wife's chair, she previously refused the armchair provided as it caused her great discomfort. When it was ordered it was thought that it would provide her with the full support she required (support of her legs and arms, as well as the ability to recline the back and raise her legs). However, it transpired that she could not utilise the arm rests fully as she was up much higher up in the seat. PH confirmed she would measure the chair again, and have alterations made, but she did not arrange this or contact him again.

14.. Mr H understands that it is possible to modify the armchair but that this has not been carried out as it is considered too expensive. Mr H considers that his wife's wellbeing and comfort are of paramount importance and these needs should not be neglected due to financial constraints.

15.. As concerns his wife's sling, the slings are made of sturdy material which is not kind to the skin and Mr H found that the sling cut into her. Unfortunately, it was not possible to arrange a mutually convenient appointment to address this.

16.. Mrs H does remain in the sling when sitting in her armchair. However, this is to ensure that her position is the armchair is not disrupted. Mrs H is in pain when she is moved and Mr H seeks to ensure that she suffers as little pain as possible. He therefore leaves the sling in place to ensure that she is not harmed. If the sling is removed when Mrs H is seated it disrupts her positioning and the hoist is then required to be placed back on to reposition Mrs H.

17.. The professionals involved in Mrs H's care have also been aware that for the last two years Mr H has hoisted Mrs H alone, without comment.

18.. KM said that she would seek to get hand rails placed around the flat to help him with the risk of falls. When, after waiting many months, he contacted the council to see when they would be installed, he was told that no referral had been made.

19.. He does not have problems with the district nurses "as a whole" and is happy to work with them to ensure that his wife's best interests are met. As the primary carer, he likes to be present when they visit and there have been problems with their visiting times. He would simply ask that they give him notice of when they will attend and, if they are running late, rearrange a new appointment, whether it is later that day or the next day.

20.. Given the soreness and leakage around Mrs H's supra-pubic catheter, his wife will need daily visits by a district nurse to ensure there are no problems with her catheter.

21.. Mr H is in agreement that the community matron should visit fortnightly.

22.. Mr H agrees that Mrs H needs to be registered with a suitable GP who can carry out regular home visits, in order to check on her health and medication. He intends to seek to join another practice. However, if it is not possible to do this before Mrs H's return home, he will be willing to accept another GP from K Medical Centre for Mrs H.

23.. Mr H agrees that at times Mrs H has had regular admissions to hospital and he considers that this has been because he has put his wife's needs first and had not at the time received the support from professionals involved in Mrs H's care. Had Mr H received the necessary support from services her would not have sought hospital admissions.

24.. Mr H accompanies his wife in the ambulance to hospital appointments.

25.. Although social services require some involvement with his wife, he is not willing to work with Mr C. He is willing to work with another member of the social work team.

26.. Mrs H needs encouragement to eat. She often does not want to eat at the time food is given to her and so needs encouragement and assistance to eat it.

27.. Mr H and Mrs H are not happy for people to have keys to their property. Mr H will be in the family home at all times. He will be there when carers and health professionals visit his wife. Therefore, they will not require keys to access the property. The proposal Mr H has put forward for carers to be in the property for 8 hours a day will ensure that Mrs H is safe and that no harm will come to her.

28.. Mr H does not consider that his wife would be capable of using a Linkline Pendant. If the care package that Mr H has sought is implemented then the relevant people will be alerted swiftly of any problem. Mrs H has her mobile phone with her at all times and is capable of alerting the police if a problem arises.

29.. Mr H disagrees that his wife is socially isolated. The couple's friends, family and neighbours provide her with social interaction and stimulation. Mrs H has a small but very close knit group of friends and he does not consider that she would be happy with the provision of a be-friender. This would not be someone Mrs H would be likely to interact with.

30.. Mr H disagrees that his health will be seriously affected by caring for his wife. In the past, the local authority and professionals associated with Mrs H's care have been happy for him to be her carer.

31.. Mr H has not been rude or aggressive to people, although he was a little hard on one member of staff.

32.. When the police called in December 2010, he did not want them or anyone else entering the premises. He had been up all night with his wife and was annoyed to find the local authority and the police on his doorstep. He did tell them that they could arrest him if they wanted to but could at least wait for him to get dressed and come out. He allowed the professionals in, save for Mr C, who he said was not welcome.

Submissions

In the submissions made on Mr H's behalf, his solicitor Ms Miles:

1.. Emphasises the points made by her client in his statement.

2.. Reiterates that Mrs H's views in this case are clear and consistent. She wishes to return home to live with her husband. Such a wish is consistent with her values as the partner to a long marriage and should be given significant weight.

3.. Relies on the judgment of Munby J in Re MM; Local Authority X v MM (by the Official Solicitor) and KM [2007] EWHC 2003 (Fam), [2009] 1 FLR 443, at paras. [115]-[121].

4.. Relies on the judgment of Hedley J in the unreported case of Re: GC [2008 EWHC 3402 (Fam)].

5.. Submits that the proper approach in this case is exemplified by the two judgments cited immediately above.

6.. Reminds me that "there will inevitably be some risk that, if JH is allowed to return home, the care package may break down. [However,] any such breakdown would be identified immediately and would no doubt be followed swiftly by an application for further declarations. MH is aware that, were this to happen, the likely outcome would be a placement in a nursing home."

7.. States that what has changed since the previous attempts to provide care at home is the commencement of the current proceedings. Court orders can set out the expectations on MH and will allow swift action should concerns about the implementation of the home care package emerge. This significantly reduces the risk of any harm to Mrs H.

8.. Says that there will be no question of an unsatisfactory situation at home developing and being allowed to drift. In the meantime, valuable information will be gathered for the court as to Mr H's ability to comply with the court's expectations.

9.. Emphasises that if Mrs H "is placed in a nursing home placement as an interim measure this may well dictate the final outcome of this case. She is highly likely to object to such a placement. Nor do her care needs dictate such a placement. As noted by the IMCA, such a placement would be likely to entail the deprivation of her liberty, possibly for the rest of her life. This should not be the first option taken by the court but the last, if all less restrictive options are found to be inconsistent with her welfare."

11 — THE OFFICIAL SOLICITOR'S CASE

The Official Solicitor has greatly assisted the court. His submissions on 13 June included the following:

1.. This is a difficult and finely balanced matter. The evidence presented by local authority has not always been presented with clarity and has not always been presented as promptly as it might have been.

2.. On the evidence currently before the court, the Official Solicitor is not persuaded that Mrs H retains capacity to enter into a lasting power of attorney (welfare) and would oppose the Court ordering the same.

3.. Mrs H has clearly expressed the view that she wishes to live at home and does not wish to live in a care home.

4.. The Official Solicitor is extremely mindful of the fact that Mrs H and Mr H have been married for many years and have lived together and cared for each other throughout. In particular, the Official Solicitor is mindful that any order of the court requiring Mrs H to reside at a residential nursing home would be a considerable interference with Mrs H's and Mr H's right to family life. There would need to be a clear basis to justify such an interference.

5.. It is in the best interests of Mrs H that there should be as few moves and transitions as is possible.

6.. The move being considered at this stage of proceedings is an interim and not a final one. It could, however, be for the short or medium term.

7.. There is no evidence before the court that it would be in her best interests to remain in hospital. It should also be noted Mrs H has not expressed a preference to remain in hospital and residing there does not reunite her with her husband. She spends almost all of her time in bed and only around once per week does she sit in her chair for a short period.

8.. The Official Solicitor would not agree to Mrs H remaining in hospital whilst any appeal of a refusal to provide continuing healthcare funding is pursued.

9.. It remains the Official Solicitor's preference that Mrs H should return home with a care package that has been agreed between her husband and the local authority.

10.. If this is not possible, it is in her best interests to reside in the interim at one of the two residential care homes identified by local authority. The Official Solicitor is opposed to her returning home unless there is agreement between Mr H and local authority as to the necessary care package to support her in the home. A placement in the family home can only be in Mrs H's best interests if she is adequately supported to avoid risks to her health, and well-being and if Mr H supports such a care plan and is in agreement with it.

11.. There are risks to Mrs H should she return home. It is noted that she weighs around fifteen stone and is not weight bearing. She requires hoisting by two people. She requires hoisting from bed to a wheelchair and from a wheelchair to a chair. Mr H has health problems and is awaiting surgery. The evidence does not support the view he can adequately care for his wife.

12.. The Official Solicitor would support Mrs H's return to the family home, supported by the local authority's care plan with the support and agreement of Mr H. The Official Solicitor would agree to a package which offered the minimum care which Mr H was in agreement and support with. Further conditions and agreements would be a matter for local authority and Mr H to agree. The following issues may be considered between local authority and Mr H:

(a) that 49 hours care support is a step towards the care package of 63 hours which Mr H wants,

(b) Mr H's carers' assessment may provide further hours, particularly of respite provision, which would be used as part of an overall care package for Mrs H.

13.. With regard to the timing of when the care workers attend the family home, the Official Solicitor would hope there could be flexibility as to the timing and local authority might consider whether it can respect Mr H's wish for carers to attend later in the day. The local authority wishes to have access to the family home. Mr H and Mrs H's rights to privacy need to be respected. Previously the local authority did have a key.

14.. Mr H could consider funding more provision himself, as he has done in the past.

15.. No other public body appears willing to fund the shortfall of hours which Mr H states is necessary and appropriate.

16.. At the present time, there is no evidence of a proper basis for Mr H to challenge local authority's assessment of Mrs H's care needs (albeit that adjudicating on such an issue is not the proper role of the Court of Protection in any event). It is not for Mr H to direct local authority how to carry out its statutory functions.

17.. In summary, the Official Solicitor would support an interim declaration and order requiring Mrs H to reside at one or other of the nursing homes identified, subject to there being an individual assessment of Mrs H by the nursing home proposed; a transition plan being drawn up and subject to the suitability of these, written agreement between the Official Solicitor and local authority. Any such interim declaration and order should be drafted subject, therefore, to the written agreement between local authority and the Official Solicitor on Mrs H's behalf.

12 — MENTAL CAPACITY ACT PROVISIONS

The statutory provisions are well-known to the parties.

In brief, section 1 provides that a person must be assumed to have capacity unless it is established that she lacks capacity; a person is not be treated as unable to make a decision unless all practicable steps to help her to do so have been taken without success; a person is not to be treated as unable to make a decision merely because she makes an unwise decision; an act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in her best interests; and before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.

Best interests and section 4

Guidance as to how to determine P's best interests is set out in Section 4 of the Mental Capacity Act 2005:

Section 4 Best interests

(1) In determining for the purposes of this Act what is in a person's best interests, the person making the determination must not make it merely on the basis of—

(a) the person's age or appearance, or

(b) a condition of his, or an aspect of his behavior, which might lead others to make unjustified assumptions about what might be in his best interests.

(2) The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.

(3) He must consider—

(a) whether it is likely that the person will at some time have capacity in relation to the matter in question, and

(b) if it appears likely that he will, when that is likely to be.

(4) He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.

(5) Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.

(6) He must consider, so far as is reasonably ascertainable—

(a) the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),

(b) the beliefs and values that would be likely to influence his decision if he had capacity, and

(c) the other factors that he would be likely to consider if he were able to do so.

(7) He must take into account, if it is practicable and appropriate to consult them, the views of—

(a) anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,

(b) anyone engaged in caring for the person or interested in his welfare,

(c) any donee of a lasting power of attorney granted by the person, and

(d) any deputy appointed for the person by the court,

as to what would be in the person's best interests and, in particular, as to the matters mentioned in subsection (6).

(10) "Life-sustaining treatment" means treatment which in the view of a person providing health care for the person concerned is necessary to sustain life.

(11) "Relevant circumstances" are those—

(a) of which the person making the determination is aware, and

(b) which it would be reasonable to regard as relevant.'

Balancing the considerations and "magnetic importance"

In the case of ITW v Z [2009] EWHC 2525 (Fam), Munby J (as he then was) gave the following guidance with regard to the different considerations listed in section 4 which the decision-maker must have in mind:^[16]

".... it may be useful to make three points, very familiar in the context of those other jurisdictions, which, allowing for the somewhat different context with which I am here concerned, seem to me to be of equal application to the statutory scheme under sections 1 and 4 of the 2005 Act:

i. The first is that the statute lays down no hierarchy as between the various factors which have to be borne in mind, beyond the overarching principle that what is determinative is the judicial evaluation of what is in P's "best interests".

ii. The second is that the weight to be attached to the various factors will, inevitably, differ depending upon the individual circumstances of the particular case. A feature or factor which in one case may carry great, possibly even preponderant, weight may in another, superficially similar, case carry much less, or even very little, weight.

iii. The third, following on from the others, is that there may, in the particular case, be one or more features or factors which, as Thorpe LJ has frequently put it, are of "magnetic importance" in influencing or even determining the outcome."

Significance of the person's own wishes and feelings

The weight to be given to an incapacitated person's own wishes was also dealt with in the case of ITW v Z [2009] EWHC 2525 (Fam),^[17]

i. First, P's wishes and feelings will always be a significant factor to which the court must pay close regard: see Re MM; Local Authority X v MM (by the Official Solicitor) and KM [2007] EWHC 2003 (Fam), [2009] 1 FLR 443, at paras [121]-[124].

ii. Secondly, the weight to be attached to P's wishes and feelings will always be case-specific and fact-specific. In some cases, in some situations, they may carry much, even, on occasions, preponderant, weight. In other cases, in other situations, and even where the circumstances may have some superficial similarity, they may carry very little weight. One cannot, as it were, attribute any particular a priori weight or importance to P's wishes and feelings; it all depends, it must depend, upon the individual circumstances of the particular case. And even if one is dealing with a particular individual, the weight to be attached to their wishes and feelings must depend upon the particular context; in relation to one topic P's wishes and feelings may carry great weight whilst at the same time carrying much less weight in relation to another topic. Just as the test of incapacity under the 2005 Act is, as under the common law, 'issue specific', so in a similar way the weight to be attached to P's wishes and feelings will likewise be issue specific.

iii. Thirdly, in considering the weight and importance to be attached to P's wishes and feelings the court must of course, and as required by section 4(2) of the 2005 Act, have regard to all the relevant circumstances. In this context the relevant circumstances will include, though I emphasise that they are by no means limited to, such matters as:

a. the degree of P's incapacity, for the nearer to the borderline the more weight must in principle be attached to P's wishes and feelings: Re MM; Local Authority X v MM (by the Official Solicitor) and KM [2007] EWHC 2003 (Fam), [2009] 1 FLR 443, at para [124];

b. the strength and consistency of the views being expressed by P;

c. the possible impact on P of knowledge that her wishes and feelings are not being given effect to: see again Re MM; Local Authority X v MM (by the Official Solicitor) and KM [2007] EWHC 2003 (Fam), [2009] 1 FLR 443, at para [124];

d. the extent to which P's wishes and feelings are, or are not, rational, sensible, responsible and pragmatically capable of sensible implementation in the particular circumstances; and

e. crucially, the extent to which P's wishes and feelings, if given effect to, can properly be accommodated within the court's overall assessment of what is in her best interests.

Significance of the family and family care

In the recent Neary^[18] case, Peter Jackson J reminded local authorities, the courts and others of the importance of family life and the significance to be attached to it:

"Decisions about incapacitated people must always be determined by their best interests, but the starting point is their right to respect for family life where it exists. The burden is always on the State to show that an incapacitated person's welfare cannot be sustained by living and being looked after by his or her family, with or without outside support."

This important decision is the latest in a line of judgments dealing with this issue. Ms Miles helpfully referred me to, and relies on, the following passages from the decision of Munby J (as he then was) in Re MM,^[19] which I agree are of considerable relevance and assistance in this case:

"[115] … As I said in Re S, at para [48]:

'I am not saying that there is in law any presumption that mentally incapacitated adults are better off with their families: often they will be; sometimes they will not be. But respect for our human condition, regard for the realities of our society and the common sense to which Lord Oliver of Aylmerton referred in In re KD …, surely indicate that the starting point should be the normal assumption that mentally incapacitated adults will be better off if they live with a family rather than in an institution – however benign and enlightened the institution may be, and however well integrated into the community – and that mentally incapacitated adults who have been looked after within their family will be better off if they continue to be looked after within the family rather than by the State.

[116] We have to be conscious of the limited ability of public authorities to improve on nature. We need to be careful not to embark upon 'social engineering'. And we should not lightly interfere with family life. If the State – typically, as here, in the guise of a local authority – is to say that it is the more appropriate person to look after a mentally incapacitated adult than her own partner or family, it assumes, as it seems to me, the burden – not the legal burden but the practical and evidential burden – of establishing that this is indeed so. And common sense surely indicates that the longer a vulnerable adult's partner, family or carer have looked after her without the State having perceived the need for its intervention, the more carefully must any proposals for intervention be scrutinised and the more cautious the court should be before accepting too readily the assertion that the State can do better than the partner, family or carer.

[117] At the end of the day, the simple point, surely, is this: the quality of public care must be at least as good as that from which the child or vulnerable adult has been rescued. Indeed that sets the requirement too low. If the State is to justify removing children from their parents or vulnerable adults from their relatives, partners, friends or carers it can only be on the basis that the State is going to provide a better quality of care than that which they have hitherto been receiving: see Re F, F v Lambeth London Borough Council [2002] 1 FLR 217 at para [43].

[118] The fact is that in this type of case the court is exercising an essentially protective jurisdiction. The court should intervene only where there is a need to protect a vulnerable adult from abuse or the real possibility of abuse: see Re K, A Local Authority v N and others [2005] EWHC 2956 (Fam), [2007] 1 FLR 399, at paras [90]-[92], and X City Council v MB, NB and MAB (by his litigation friend the Official Solicitor) [2006] EWHC 168 (Fam), [2006] 2 FLR 968, at para [27]. The jurisdiction is to be invoked if, but only if, there is a demonstrated need to protect a vulnerable adult. And the court must be careful to ensure that in rescuing a vulnerable adult from one type of abuse it does not expose her to the risk of treatment at the hands of the State which, however well intentioned, can itself end up being abusive of her dignity, her happiness and indeed of her human rights. That said, the law must always be astute to protect the weak and helpless, not least in circumstances where, as often happens in such cases, the very people they need to be protected from are their own relatives, partners or friends: NS v MI [2006] EWHC 1646 (Fam), [2007] 1 FLR 444, at para [8].

[119] There is one final point to be made. The court, as I have said, is entitled to intervene to protect a vulnerable adult from the risk of future harm – the risk of future abuse or future exploitation – so long as there is a real possibility, rather than a merely fanciful risk, of such harm. But the court must adopt a pragmatic, common sense and robust approach to the identification, evaluation and management of perceived risk."

The approach to take concerning risks has assisted me in this case. Risk cannot be avoided and even a very low risk from time to time becomes an actuality. Small differences in one key variable can result in vastly different behaviours and outcomes, just as a sudden change in the physical state of water into steam or ice occurs with the rise or fall of temperature beyond a critical level. All decisions that involve deprivation of liberty or compulsion involve balancing competing risks, of which the risk that others may suffer physical harm is but one. For example, detention and compulsory care or treatment may risk loss of employment, family contact, self-esteem and dignity; unnecessary or unjustified deprivation of liberty; institutionalisation; and the unwanted side-effects of treatment.

Ms Miles has also referred me to the unreported case of Re: GC,^[20] which I find similarly helpful, in which Hedley J "considered whether to allow an elderly man to be discharged from hospital to the home where he had lived for many years with his nephew KS, notwithstanding that there were serious though entirely unintentional shortcomings in the care provided by KS (including refusal of access by professionals to GC, as well as a finding that KS had struck GC)." Hedley J commented:

"GC is a man in the 83rd year of his life and my concern is to ask myself: how will he most comfortably and happily spend the last years that are available to him? Secondly I have approached this case on the basis that his primary need is for emotional warmth, emotional security and the commitment of human relationship. That has been a huge feature of his life to date and one that is not readily to be set aside. Next it seems to me that for the elderly there is often an importance in place which is not generally recognised by others; not only physical place but also the relational structure that is associated with a place ...."

In connection with the issue of a trial placement, the Judge commented at paragraph 24:

"It seems to me that it would be wrong not to try, even with a degree of pessimism, a placement with a package of support that has been advanced, and this is another factor that has weighed with me in this case; that it would be wrong to take a step, unless one had to that had a real prospect of preventing a placement at home ever being tried."

A balance-sheet approach

The best interests test is an objective test, concerned with the best interests of P and not the best interests of another person. The following passage concerning the need for a balance-sheet approach to best interests comes from the President's judgment in the case of Re S (Adult's lack of capacity: carer and residence) [2003] FLR 1235:^[21]

"The welfare of the mentally disabled person is paramount. The question, accordingly, is: which outcome will best serve her interests? Further, it is clear that the court goes about deciding that question by drawing up the balance sheet identified by Thorpe LJ in Re A (Male Sterilisation) [2000] 1 FLR 549 at 560F–560H:

'Pending the enactment of a checklist or other statutory direction it seems to me that the first instance judge with the responsibility to make an evaluation of the best interests of a claimant lacking capacity should draw up a balance sheet. The first entry should be of any factor or factors of actual benefit … Then on the other sheet the judge should write any counter-balancing disbenefits to the applicant … Then the judge should enter on each sheet the potential gains and losses in each instance making some estimate of the extent of the possibility that the gain or loss might accrue. At the end of that exercise the judge should be better placed to strike a balance between the sum of the certain and possible gains against the sum of the certain and possible losses. Obviously only if the account is in relatively significant credit will the judge conclude that the application is likely to advance the best interests of the claimant.'"

The deprivation of liberty provisions

If Mrs H is discharged to a nursing home, consideration needs to be given as to whether her conveyance and residence there will amount to a deprivation of liberty. If it does then the deprivation of liberty will need to be authorised under the Mental Capacity Act 2005, unless the Mental Health Act 1983 detention provisions apply.

The deprivation of liberty provisions in the 2005 Act are set out in sections 4A, 4B, 16A, Schedule A1 and Schedule 1A (Persons Ineligible to be Deprived of Liberty by this Act).

Ten commandments

It is not necessary to go into considerable detail since the live issues here are quite narrow. The basic legal framework can be expressed as ten commandments:

1.. Deprivation of liberty requires that the person has been confined in a particular restricted space 'for a not negligible length of time'.^[22] This is the 'objective condition'.

2.. In addition, a 'subjective condition' must be met. This is that the person has not validly consented to their confinement.

3.. With regard to the subjective condition, a person cannot validly consent if they lack capacity to consent.^[23]

4.. The distinction between deprivation of liberty and restriction of liberty is one of degree or intensity, not one of nature or substance.^[24]

5.. The starting-point is the specific situation of the individual concerned. Account must be taken of a whole range of factors arising in the particular case, such as the type, duration, effects and manner of implementation of the measure in question.^[25]

6.. Of considerable importance is whether the professionals exercise "complete and effective control' over the person's his care and movements, so that the individual is 'under continuous supervision and control and is not free to leave."^[26]

7.. The state's obligations under the Convention are engaged if a public authority is directly involved in the detention (it is "imputable to the state"), but also if the state has breached its positive obligation to protect the person against interferences by private persons.

8.. This is because Article 5(1) imposes a positive obligation on the state to protect the liberty of its citizens. The state is obliged to take measures providing effective protection of vulnerable persons, including reasonable steps to prevent a deprivation of liberty of which the authorities have or ought to have knowledge.

9.. It is also essential that the person concerned should have access to a court and the opportunity to be heard in person or, where necessary, through some form of representation. Without this s/he will not have been afforded the fundamental guarantees of procedure applied in matters of deprivation of liberty. Special procedural safeguards may prove to be called for in order to protect the interests of persons who, on account of their mental disabilities, are not fully capable of acting for themselves. ^[27]

10.. With regard to persons in need of psychiatric treatment in particular, the state is also under an obligation to secure to its citizens "their right to physical integrity" under Article 8 of the Convention. Private psychiatric institutions, in particular those where persons are held without a court order, need not only a licence, but also competent supervision by the state on a regular basis of whether the confinement and medical treatment is justified.^[28]

Persons who fall outside Schedule A1

Under the 2005 Act statutory framework, certain people fall outside the standard and urgent authorisation scheme. These people are:

1.. Children.

2.. People who do not suffer from a mental disorder within the meaning of the Mental Health Act 1983 (disregarding any exclusion for persons with learning disability).

3.. People who have capacity to decide whether to be accommodated in the relevant hospital or care home for the purpose of being given the care or treatment in question.

4.. Incapacitated people who have made a valid advance decision refusing some or all of the treatment in question.

5.. Incapacitated people who have an LPA donee or deputy, if accommodating them in order to provide the care or treatment in question would conflict with a valid decision of their donee or deputy.

6.. Incapacitated people if it is or would not be in their best interests be a detained resident.

7.. Incapacitated people if it is not necessary to detain them in the particular hospital or care home in order to prevent harm to them.

8.. Incapacitated people if detaining them in the particular hospital or care home is not/would not be a proportionate response to the likelihood of their suffering harm and the seriousness of that harm.

9.. People who are currently detained in a hospital under one of the following sections of the Mental Health Act 1983: sections 2, 3, 4, 35–38, 44, 45A, 47, 48, 51.

10.. People who, though not currently detained, are subject to one of these sections or to a community treatment order, if the care or treatment in question consists wholly or partly of medical treatment for mental disorder in a hospital.

11.. People who, though not currently detained, are subject to one of these sections, or to a community treatment order or guardianship, if accommodating them in the hospital or care home under the Mental Capacity Act would conflict with a requirement imposed on them under their Mental Health Act section.

11.. People who are subject to guardianship under the Mental Health Act, if they object to being accommodated in the particular hospital for the purpose of being given some or all of the proposed medical treatment for their mental disorder (unless they have a donee or deputy who consents to each matter to which they objects).

12.. People who meet the criteria for being sectioned under section 2 or 3 of the Mental Health Act 1983, if they object to being accommodated in the particular hospital for the purpose of being given some or all of the proposed medical treatment for their mental disorder (unless they have a donee or deputy who consents to each matter to which they objects).

The six requirements

A person may only be deprived of their liberty under Schedule A1 if they meet the six statutory requirements: age, mental health, mental capacity, best interests, no refusals, eligibility. On the current evidence:

•    Mrs H is an adult, so the age requirement is satisfied.

•    She apparently suffers from vascular dementia, so the mental health requirement is satisfied.^[29]

•    It appears that the mental capacity requirement is satisfied in that she lacks capacity decide for herself the question of whether or not s/he should be accommodated in the relevant hospital or care home for the purpose of being given the care or treatment to be provided there.

•    She has not made a Lasting Power of Attorney in relation to decisions about her personal welfare. Provided nothing she has said or written constitutes an advance decision to refuse some or all of the treatment in question (which is an issue that has not been canvassed with the court), she satisfies the no refusals requirement.^[30]

This leaves two requirements to consider: the eligibility requirement and the best interests requirement.

Eligibility requirement

The precise test here depends on whether the two nursing homes are registered as hospitals or as care homes.^[31] The framework for hospital cases is more complicated and by and large restores the law to the legal position that pertained under the Mental Treatment Act 1930, before its repeal by the Mental Health Act 1959. Informal admission is permissible only if the patient is not being deprived of their liberty or has capacity and consents to being confined in a way that would otherwise be a deprivation of liberty.

My understanding, without having had an opportunity to see the certificates of registration, is that the two nursing homes are registered as care homes.

On this basis, Mrs H would satisfy the eligibility requirement because she will not also be subject to section 17 leave or a community treatment or guardianship at either home, and therefore the question of whether an authorisation under the 2005 Act would conflict with a requirement imposed on her under the Mental Health Act 1983 does not arise.

Best interests requirement

That leaves only the best interests requirement, which needs to be given in detail. The requirement is satisfied provided that the following four conditions are satisfied:

1. Mrs H will be detained in the nursing home following her reception there, for the purpose of being given care or treatment, in circumstances which amount to deprivation of the person's liberty";

2. It is in Mrs H's best interests for her to be a "detained resident"; ^[32]

3. It is necessary for her to be a detained resident in order to prevent harm to her; and

4. Her detention in the nursing home for the purpose of being given care or treatment, in circumstances which amount to a deprivation of her liberty, is a proportionate response to the likelihood of her suffering harm, and the seriousness of that harm (if she were not so detained).

Any authorisation granted may include conditions to which the authorisation is, or is not, to be subject.

Court orders and deprivation of liberty

The court is not bound by five of the six requirements set out in Schedule A1. However, section 16A(1) — which relates to the eligibility requirement — provides that, "If a person is ineligible to be deprived of liberty by this Act, the court may not include in a welfare order provision which authorises the person to be deprived of his liberty."

By paragraph (2) of Schedule 1A, a person is ineligible if s/he falls within one of the groups of people referred to in paragraphs (9) to (12) of the list on page 38 above

Consistent with this, by sub-section (2), "If … (a) a welfare order includes provision which authorises a person to be deprived of his liberty, and (b) that person becomes ineligible to be deprived of liberty by this Act, the provision ceases to have effect for as long as the person remains ineligible."

Sub-section (4) states that, for the purposes of the section, "Schedule 1A applies for determining whether or not P is ineligible to be deprived of liberty by this Act."

G v E

It is not the case that a person can only be deprived of their liberty under the 2005 Act as a "person of unsound mind" if their medical condition warrants detention. Provided there is credible expert evidence that the individual is of unsound mind and lacks capacity to decide the relevant issue, the issue is simply whether deprivation of liberty is in their best interests. Necessarily, this involves and includes considering whether detention is appropriate and proportionate and whether the purpose for which the proposed detention is needed could be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.^[33]

A protective scheme

The underlying rationale of the legislative framework is that it is a protective scheme. Anyone who is deprived of their liberty, that is who is under another person's complete and effective control and is not free to leave, is vulnerable to abuse. This risk is multiplied if the person is unable to make decisions about whether to reside there or to leave. Children and adults with mental health problems are particularly at risk, and the law has usually afforded them special protection. This protection involves imposing legal duties on those with power, conferring legal rights on those in their power, and independent scrutiny of how these powers and duties are exercised. The effectiveness of such schemes depends on whether, and to what extent, they are observed. In this case, the DOLs scheme ensures that there is at least an annual assessment by two suitably qualified and independent professionals, who can ensure that the arrangement is necessary to protect them from harm, really is in their best interests, is proportionate and so forth.

European Convention on Human Rights

Article 5 is engaged if Mrs H is deprived of her liberty and hence a proper authorisation or court order is required, in the manner described.

Article 8 provides a qualified right that everyone has the right to respect for their private and family life, home and correspondence. It is engaged in relation both to a care regime at home and a care regime in a nursing home. Any interference with Mrs H's family or private life must be authorised by law, proportionate ("necessary in a democratic society") and for a permitted purpose, which here would be for the protection of her health.

The positive obligation to respect the right to family life in the area of adult care is reflected in numerous domestic and European cases, most recently in Hillingdon LBC v Neary,^[34] but also (for example) in In Re S (Adult Patient)(Inherent Jurisdiction: Family Life) [2002] EWHC 2278 (Fam).

An intervention with the parties' rights under Article 8 is a serious intervention by the state which requires to be justified under Article 8.2.^[35] It is only where the best interests of the person concerned compellingly require placement away from the family environment that such placement can be justified as a proportionate interference with their rights under Article 8 and those of relevant family members.^[36]

When focusing on the Article 8 rights of the person, and any other relevant person, the court should consider the nature and strength of the evidence of the risk of harm. There must, as Peter Jackson J observed in Hillingdon LBC v Neary at paragraph 15(3), be a proper, factual basis for such concerns.

Code of Practice

In coming to my decision, I have considered the relevant codes of practice, as required by section of the 2005 Act:

42 Codes of Practice …

(5) If it appears to a court or tribunal conducting any criminal or civil proceedings —

(a) a provision of a code, or

(b) a failure to comply with a code,

is relevant to a question arising in the proceedings, the provision or failure must be taken into account in deciding the question.

The relevant codes are the Mental Capacity: Code of Practice (Department for Constitutional Affairs, London: TSO, 2007) and the Deprivation of liberty safeguards: Code of Practice to supplement the main Mental Capacity Act 2005 Code of Practice (Ministry of Justice, London: TSO, 2008).

More generally, the Code does not have statutory force but there ought to be cogent reasons for any departure.^[37]

I have not received any submissions concerning section 42 and the codes, and I suspect that is because the codes are well-known to the parties and the ways in which they apply to the present case are clear and not in dispute.

13 — PUBLIC LAW CONSIDERATIONS

I accept the Official Solicitor's submission that it is not a function of the Court of Protection to determine the legality of local authority and NHS assessments of the services to which Mr and Mrs H are entitled under the relevant statutory provisions. I also accept that this court cannot direct the local authority or NHS to provide services which they have assessed that Mr and Mrs H do not require or which they have decided at their reasonable discretion not to provide. I am less sure that there is no valid basis for a challenge but have proceeded on the basis that the assessments are valid unless and until they are set aside by the appropriate court or modified by the service providers themselves (if ever).

Accepting the lawfulness and validity of the assessments for the purposes of these proceedings, and that the authorities are "within their rights," does not mean that I am completely powerless. For example, in principle, I could decide on Mrs H's behalf that it is not in her best interests to have contact with particular persons (including professionals) at particular times, or that she should reside somewhere other than envisaged by the service providers. Likewise, I can authorise legal proceedings on her behalf, or the taking of legal advice, and (in appropriate circumstances) authorise the expenditure of any savings she has on additional services.

Without expressing any opinion at this stage, in exceptional circumstances it is possible that the cost rules may also entitle me to take into account any unreasonable refusals by either party to compromise or review particular positions taken by them which unnecessarily prolong the proceedings or cause unnecessary distress to Mrs H. Of course, submissions will be necessary on this point if it should become a live issue.

14 — MRS H's BEST INTERESTS

Having recited the relevant law, I shall now consider Mrs H's best interests in the context of it.

There is, of course, no solution.

None of the options canvassed with the court will provide Mrs H with security, safety, liberty, happiness, an absence of suffering and an unrestricted home and family life. These different considerations cannot all be reconciled and promoted within a single setting, and the realisation of some of them must inevitably involve the sacrifice of others. The task is to choose which of these legitimate values and aims to compromise and which to give expression to, in Mrs H's best interests.

Although I have been encouraged to make no findings or as few findings as possible, I have made interim findings where I have felt this is appropriate. This is not a commercial dispute or a libel action where an injunction might be granted on a balance of convenience basis, with damages providing an appropriate remedy following trial. The decision is one of critical importance to Mrs H (and her husband), which will or may well have profound implications for her future happiness, her contact with her husband, her health and security, and her liberty. Insofar as possible, the interim decision must, in my opinion, be based on adequate interim findings founded on the best evidence currently available to me. All of the findings below are interim findings based on the interim evidence. If new evidence (including oral evidence) becomes available which materially alters the picture, the findings will change in accordance with the changing balance of the evidence. Nothing is set in stone.

Participation of Mrs H in the decision-making

I find that, so far as reasonably practicable, Mrs H has been permitted and encouraged to participate, or to improve her ability to participate, as fully as possible in the decision-making process concerning her discharge destination. She has had many opportunities to express her wishes and preferences, and has done so. I believe that this finding is not contentious.

Whether a recovery of capacity is likely

As an interim finding, I find that it is unlikely that Mrs H's capacity will improve within the time available to enable her to make this decision for herself and that a decision must be made for her now, in her best interests. Delaying the decision on this ground would not be justified having regard to the fact that she cannot remain in the hospital (the bed is required by other seriously ill patients) and for all of the reasons stated by the parties in their submissions.

Mrs H's past and present wishes and feelings

The wishes and feelings of Mrs H constitute one of the most important factors to be taken into account in reaching this decision. In taking her wishes and feelings into account, I have considered the case of ITW v Z,^[38] the degree of incapacity, the strength and consistency of her views, the likely impact of knowing that her wishes and feelings are being overridden (if my decision is contrary to her wishes), the extent to which her wishes and feelings are rational, sensible, responsible and pragmatically capable of sensible implementation, and the extent to which her wishes and feelings can properly be accommodated within the court's overall assessment of her best interests.

I have noted the consistency of her wishes and feelings; the rational and understandable basis of her devotion to her husband based as it is on many years of loving marriage; her enjoyment of his company; her trust in him; the fact that she has some understanding of her need for support and of his health problems; the likely effect on her mental health, happiness and well-being of the loss of her home and institutional care; and the likely effect of a loss of her liberty.

Mrs H's views in this case have always been, and are, clear and consistent:

a) She wishes to return home and to live with her husband.

b) She remains committed to her husband, marriage and home and is devoted to him. Being separated from him and her home would cause her great distress.

c) Such a wish is consistent with her values as the partner to a long marriage and must be given very significant weight.

d) She wishes her husband to make decisions on her behalf.

e) As with any person who is devoted, she wishes to take her husband's feelings and wishes into consideration. She would want to know that he is as happy as possible, and is not distressed by the outcome.

f) She prefers to have limited contact with professional carers and has sometimes resisted the delivery of care by professionals.

The witness statement of Mr C acknowledges that there will be positive psychological and emotional benefits to Mrs H if she returns home.

As recently as 20 September 2010, Dr K (consultant psychiatrist, older people's team) wrote that,

"She enjoys the company of her husband. She enjoys watching television at home and is able to concentrate. She can laugh. Her mood is fine. She feels safe at home. No one is troubling her or treating her badly. Her husband helps her with her personal care. She is comfortable with him doing it. He is able to do it well despite having problems with his legs. She had home carers but did not like the service. She said her husband is very good to her and treats her well. She did not want to go into a care home, saying "it is not my way."

Her husband reports that she is generally happy at home in his company. She watches television and whilst watching talks about what is on. She enjoys listening to music. He finds that he has to initiate conversation with her. He appreciates her company.

Mr H would agree to a nursing home placement if his wife wanted it (see statement of KM). However, she does not wish to be in a home. He is giving support and expression to her wishes and will not compel her to go into a home against her wishes.

Mrs H is still able to appreciate and express the value of being at liberty and being allowed autonomy.^[39] The importance of individual liberty is of the same fundamental importance to incapacitated people who still have clear wishes and preferences about where and how they live as it is for those who remain able to make capacitous decisions. This desire to determine one's own interests is common to almost all human beings. Society is made up of individuals, and each individual wills certain ends for themselves and their loved ones, and not others, and has distinctive feelings, personal goals, traits, habits and experiences. Because this is so, most individuals wish to determine and develop their own interests and course in life, and their happiness often depends on this. The existence of a private sphere of action, free from public coercion or restraint, is indispensable to that independence which everyone needs to develop their individuality, even where their individuality is diminished, but not extinguished, by illness. It is for this reason that people place such weight on their liberty and right to choose.

Any written statement made by her when she had capacity

I am not aware that Mrs H made any oral or written statement when she had capacity about her future treatment and care arrangements in the event of a serious illness of this kind (but am conscious that the point, and the existence of a relevant advance decision, has not been investigated).

It may be that the marriage contract constitutes a relevant written statement but, nothing turns on it because her marriage vows and her long commitment to her marriage both constitute relevant beliefs and values.

Relevant beliefs and values

If Mrs H had capacity, I find that her commitment to her marriage and being at home with her husband are such that it is very likely that she would wish the risks identified by professional carers to be taken, and to return home. I am satisfied that she would have said that, in circumstances such as these, she would rather live at home with her husband in circumstances where some risks to their health and safety exist than be placed in an institutional setting with unfamiliar persons, having only visiting contact with her husband, her care provided by care assistants with no family bond to her, and a formal (and, in all likelihood, limited) programme of activities.

I find that Mr and Mrs H take a traditional view of marriage and their vows, and have never regarded it as a provisional and reviewable arrangement which could and might be brought to an end by divorce or voluntary separation.

More than 30 years ago, Mrs H threw in her lot with her husband, to live together and care for each other. I accept, and give considerable weight to, the fact that a marriage such as theirs is "an engagement between a man and a woman to live together, and love one another as husband and wife, to the exclusion of all others. It creates a relationship of mutual and reciprocal obligations, typically involving the sharing of a common home and a common domestic life and the right to enjoy each other's society, comfort and assistance."^[40]

Views of non-professional carers

Mr H is a devoted and caring husband who has demonstrated over many years his love for his wife and has provided her with good-quality care at home. I have already summarised his statement, which sets out his views and wishes, and which has been of great assistance.

Other relevant considerations

The following considerations seem to me to be relevant:

Mrs H's condition

In January 2011, Mrs H suffered a sub-acute left parietal infarct which "caused mild new impairment (mainly facial weakness)." She is back to her pre-admission level of functioning and disability. She is medically fit for discharge.

Mrs H is bed-bound and dependent on other people for activities of daily living. She requires a hoist and assistance to transfer to a wheelchair. Physically she is able to eat and drink independently but is reluctant to do so at times, when she requires encouragement. She has a supra-pubic catheter in situ and is incontinent of faeces.

Suitability of further hospital treatment

Mrs H's condition is stable and "back to her baseline" with no outstanding medical issues. Various reports confirm that she is ready for discharge.

It is common ground that when a patient is deemed medically stable for discharge, she should be discharged from hospital in a timely manner, otherwise the patient is at high risk of infection and associated complications.^[41]

It is not in Mrs H's best interests to remain in hospital any longer and remaining there will not resolve or help to resolve the issues raised in this case.

Healthcare needs following discharge

The nature, intensity, unpredictability and complexity of Mrs H's needs are not of a level which indicates a primary need for healthcare (NHS assessments accepted until set aside by a court or varied, for the purposes of these interim findings only).

Mrs H's condition "has a low level of intensity based on the number of medical interventions required and the amount of time it takes to meet her health needs."

Taken as a whole, the nursing and other health services required by Mrs H are no more than incidental or ancillary to the provision of accommodation, and are not of a nature beyond those the local authority could be expected to provide.

It is not the case that Mrs H's needs are so great that a suitable package of care could not be delivered to Mrs H in her home.

Her care needs can be met by either a suitable care package at home or by placement in a nursing home.

Health and social care services if discharged home

On 20 September 2010, some three months before her second stroke, the level of care which Mrs H was receiving at home prior to admission was assessed by Dr K and her GP Dr Y. Dr K reported that:

"I did not see evidence that her husband is not caring for her adequately. We saw her separately to him and she was positive about him and the care that he provides. She appeared clean and the flat was clean and tidy. When he was in the room she did not appear frightened of him. He spoke about appreciating her company and having a sense of responsibility towards her as they have been married for 35 years …. In my opinion it is currently in her best interest to stay with Mr H and for him to be her carer. However, his health is compromised and he may not be able to sustain the level of care she requires. Therefore regular contact with services is important so that services can step in and help when this is needed. …. I have not offered Mrs H follow-up by MHCOP [Mental Health Care of Older People services]. I will discharge her."

I accept this evidence and find that prior to admission Mrs H received adequate care at home, albeit that providing the professional part of her care was often inconvenient for professional services and at times affected by disagreements about Mr and Mrs H's needs and periods of non-cooperation.

Her lengthy admission to hospital in January 2011 cannot be attributed to any lack of care at home.

Her level of functioning and disability are back to her pre-admission baseline and therefore not markedly different from that when Dr K and Dr Y considered the adequacy of her care arrangements in September.

Her care in hospital, in an institutional care environment, has been characterised by a lack of co-operation on her part with basic care activities and a lack of any engagement in any therapy. Necessarily, the possibility that she will be more amenable in a less skilled nursing home environment must be slight.

General Practitioner support

Mr H requires access to, and monitoring by, a GP because of her medical history.

Mr H will re-register her with another practice once an order has been made to this effect. If this is not possible before a return home, he will accept another GP from her current practice.

District nurse visits

There is a risk of catheter blocking and infection which if not adequately managed can lead to avoidable hospital admissions.

In the past, Mrs H has been admitted to hospital for catheter-related infection care.

Mr H does not leave infections untreated.

It is not accurate to say, as the local authority contends, that "despite an agreement, Mr H regularly fails to allow nurses to provide preventative catheter care and bladder washout." The agreement was that District Nurses would visit during an agreed time-slot, which they found "difficult … to sustain" because of their other commitments and unavoidable delays. It would have been desirable for Mr H to deal with these failures in a more forgiving and accommodating way, and on occasions he did not answer the door to nurses at the agreed times.

Mr H would prefer daily visits from district nurses but this level of service is thought not to be necessary.

Mr H has agreed to two weekly visits by District Nurses on Tuesdays & Fridays at approximately 11.00am, to provide bladder washout & catheter care, and refitting the suprapubic catheter.

Respite hours

I can find no evidence which suggests that three hours respite care per week is adequate, only evidence that the local authority has exercised its statutory discretion and, in the context of available resources, cannot afford to provide more. I make that interim finding because it is relevant to why Mr H has been worn down and frustrated, and disengaged from services, which did not help to promote his wife's best interests.

The local authority's submission that Mrs H has care needs which Mr H cannot meet because of the "lack of any … respite provision in his plan to care" is a gross distortion of the truth, given their decision to provide three hours respite per week and his request for more respite care.

The level of assistance provided to Mr H has placed him under great strain. Much of the conduct which the local authority complains of can be attributed to this lack of respite care. It is, I accept, for the local authority to determine whether he should be provided with more respite, having regard to matters such as their budget and the need to be fair to other service users. However, the solution to this problem, as they have in effect reminded me, lies in their hands, not mine.

The local authority will be undertaking a carer's assessment of Mr H in order to identify "any support and services he requires, including respite care." The assessment will take place shortly, and hopefully will adequately address his needs.

Equipment and occupational therapy

The professional evidence is inconsistent. According to one report, "Mrs H already has suitable equipment and would need to be reassessed before any new equipment could be provided." According to another, some equipment in the home is not adequate or suitable.

If discharged home, an occupational therapist (OT) will assess the home prior to discharge to ensure that appropriate equipment is in place. The OT will also be present on the first carers' visit, in order to assess Mrs H's moving and handling needs and whether further equipment is required. The hospital OT will liaise with the community OT.

Mr H agrees that his wife requires input from occupational therapy services. He will cooperate with the occupational therapy assessment and be guided by its outcome.

Subject to financial constraints, their legitimate discretion and other service users having a greater need for limited resources, it will be important that the OT assessment addresses Mr and Mrs H's concerns. They believe that she needs a mattress that massages her and helps to ensure that she does not suffer with soreness; that her armchair enables her to utilise the arm rests fully; and that she has a sling that is kind to the skin. If financial constraints limit the provision of equipment, this needs to be made clear to Mr H in writing so that he appreciates the reasons why equipment or adaptations cannot be supplied. At least he will know that professional staff understand and sympathise with his predicament and would provide more if they could. If, alternatively, there is no clinical need then this needs to be made clear in writing. At present, the reasoning has not been made clear, including to me.

Community matron services

Mr H agrees that the community matron should visit fortnightly.

Number and timing of carer hours

Mr H does not object to having two carers provided, per se. However, the number of carer hours available to him and his wife is finite. His suggestion that the parties compromise on one carer between 2 and 10pm from Monday to Saturday (48 hours) has much to commend it, and would help him and therefore his wife more.

It would allow two people to use the hoist and, when hoisting is not required, enable him to have more adequate periods of respite outside the family home, in the knowledge that someone is with his wife. It will ensure that she has someone with her at all times, thus dealing with the concern about access to help in an emergency.

On the current evidence, the local authority's apparent insistence that two carers visit before midday to help give Mrs H breakfast appears to have little to commend it and is likely to meet with a refusal on her part. Mrs H has made her feelings very clear on the point (as to which, see below) and does not take breakfast in hospital.

If Mrs H had capacity, she could and in all likelihood would refuse visits to her home at inconvenient or unsuitable hours, and this therefore is more of a Mental Capacity Act point than a public law/local authority acting within its statutory discretion point. Ultimately, they decide what services they are required to provide by statute and I decide on her behalf and in her best interests whether to consent to a particular part of the care or treatment which is offered to her.

Use of sling

Mr H has provided a reasonable explanation as to why his wife benefits from sitting in her armchair with support from the sling, and why this does her more good than harm. Mrs H is often in pain when she is moved and in this way he minimises her discomfort and seeks to ensure that she is not harmed. He appears to have been more successful than professional carers in assisting or persuading her to transfer from her bed to an armchair. In hospital, she spends most of her time in bed and eats and drinks mainly in bed. She "is encouraged [by staff] to sit out in the chair provided … but chooses not to most of the time. On average, she only agrees to sit in the chair one day a week, although she has occasionally sat out three times in a week" (Manual handling report of PH and LR, 17 May 2011).

Although PH reported that sitting in the sling "risked" "compromising" the integrity of Mrs H's skin, when questioned in court she acknowledged that she had not seen or assessed Mrs H for more than a year before writing her assessment; did not have sufficient concerns at the time to take any remedial action; did not make contact with, or assess Mrs H, when writing her report; had not seen Mrs H in hospital since her admission; did not follow up the chair and sling issues in 2010; did not know how often Mrs H used her chair at home; did not know if any new factors had occurred since Dr K's report which might change his opinion; accepted that Mrs H's sling was "not totally suitable"; and said that the only observed damage to her skin at home was some redness because of leakage from the catheter. It is noteworthy that redness of the skin because of leakage from the catheter has also been recorded in hospital, where Mrs H receives specialist care from highly skilled professional staff.

PH's occupational therapy evidence was unconvincing. Having heard her oral evidence, in the course of which the above facts emerged, I question whether she is best placed to address the family's needs in their own home in a suitably flexible way.

As Mrs H's husband, and within the privacy of their own home and relationship, Mr H is not bound to follow professional opinion in every respect, provided that he has good reasons for believing that his wife would prefer him to provide care in a different manner at times, and he uses his long-gained expert understanding of her likes and dislikes, comfort and discomfort, to arrive at a reasonable view as to why it would benefit her to take an advised risk. Such acts would be based on a reasonable belief that the care is in her best interests, and covered by section 5. While I must accept that there is a risk to the integrity of the skin, Mr H has learnt that use of the sling enables Mrs H to get out of bed, to participate more, and to be in less pain. Within the privacy of their own home, that appears to be a reasonable position for a married couple to take.

Turning in bed

Mrs H should be turned every three to four hours but often refuses to allow professional carers to do this for her. She often shouts out when being repositioned by nurses, does not want to be moved, and tells them to go away. Care assistants visiting her at home, or attending to her in a nursing home, are likely to encounter identical difficulties, given that they lack the professional skills of nurses in a specialist unit. Mr H understands his wife's needs more intimately, and how to avoid her pain, and she trusts him; hence he appears to have had more success in this respect.

Hoist requiring two people

PH reported in her statement that, "Mr H carried out the hoisting on his own … which I assessed needed to be done by two people."

The local authority's position is that two "carers" are needed for tasks that involve using the hoist slings, sliding sheets, moving Mrs H from the bed into the wheelchair, lowering her in her bed, hoist-lowering her into the bath, rolling her on the bed when changing her pad, and hoist-transferring her to and from the wheelchair to the bathroom or lounge.

On the present evidence, I accept that this is desirable where resources permit, in terms of reducing back strain and injury.

I also find, on the evidence, that Mrs H does not assist professional carers with hoisting and that this is problematic for them given her size and weight ("Mrs H doesn't assist with the handling tasks at all, statement of PH dated 19 May 2011).

When she gave oral evidence to the court, PH conceded that Mr H has been using the hoist at home on his own for two years without mishap, fall or injury either to him or his wife. The risk was "not so much falls" but "cumulative strain on the back … to him." It was "unwise" to do it from a safety point of view, "to him."

Mr H, of course, has capacity, to assume risks to his own health. I hope that something can be arranged for him that minimises the risk of back strain or injury. However, if in the meantime he would rather take that risk than put his wife in a nursing home, I respect that and do not consider it to be contrary to her best interests. On the evidence, I find that Mr H has developed techniques that enable him to use the hoist on his own without this involving a significant risk of significant injury to his wife. My main concern is how long he will be able to continue to do this without further respite and professional support, rather than the magnitude of the risk to Mrs H.

The situation concerning hoisting in a hospital or a nursing home is likewise not entirely satisfactory, and this needs to be acknowledged. Mrs H has spent most of her time in bed since being admitted to hospital. Most days she refuses to be hoisted from bed to chair. When Mr C gave oral evidence, he conceded that nursing home staff would not force her to leave her bed if she resisted being hoisted and told them to leave her alone. The likelihood is that she would be confined to bed for most of the time in a nursing home, and eat and drink in bed. It may be that only a mobile hoist will be available.

Medication

The IMCA reports that Mrs H has declined medication in hospital. I am not aware of any occasions on which she has declined medication from her husband at home.

Food and meals

In her statement, PH expressed concern that Mrs H's "eating pattern at home was not following a usual pattern of breakfast in the morning, mid-day lunch and a mid evening dinner … She told me that she would wake very late in the morning, not having had her first meal often till mid-day."

It is recorded that in hospital Mrs H does not want "to be disturbed till about 10.00am and the majority of the time she refuses to eat breakfast" (Manual handling report of PH and LR, 17 May 2011). She eats and drinks mainly in bed.

This pattern is likely to continue in the less skilled environment of a standard nursing home.

At home, the evidence suggests that it her husband is able to engage her co-operation. They prefer to sleep in and not be disturbed until midday. No one has given me a compelling clinical reason as to why this cannot be respected and, in any case, it is unlikely that Mrs H will take breakfast wherever she goes following discharge.

Liquid intake

Mrs H needs encouragement to drink in hospital. She "will only drink about two cups of water a day" and it is felt that "there is a risk of dehydration." She much prefers orange juice to water and will drink this if her husband gives it to her. However, the sugar content is not good for her diabetes (Statement of PH dated 19 May 2011). The situation needs monitoring but probably no more at this stage.

Linkline pendant or alternative system

Mrs H does not wish to have a Linkline pendant and it is not clear that such a device would be of any use to her. In hospital, she has a buzzer/call bell to alert nursing staff but does not use it (Statement of PH dated 19 May 2011), despite having been shown how to (Manual handling report of PH and LR, 17 May 2011). Instead, she "waves or calls out verbally to indicate a need for assistance" (Manual handling report of PH and LR, 17 May 2011).

Mrs H says that she could phone her husband if she needs help but whether she can use a phone has not been demonstrated to the satisfaction of some professionals (Statement of PH dated 19 May 2011).

If Mr H's proposals were to be accepted, he can allow entry when he is at home and when he is out a carer will be with his wife, thereby providing her with assistance in an emergency.

The parties have agreed that the local authority will liaise with the hospital occupational therapist for her/him to carry out an assessment. Both parties will be guided by the conclusions of that assessment.

Emergency key holder

The local authority believes that it is essential that there is an emergency key-holder.

Mr H says that this is unnecessary and he will not allow a key to the family home to be provided to a third party. The relevant people will be alerted swiftly of any problem if the care package he has suggested is implemented.

The Official Solicitor has reminded me of the need to show respect for Mr H and Mrs H's rights to privacy.

I would invite the parties to consider whether a key could be left with a third-party trusted by Mr H, such as a friend of him and his wife.

On balance, I do not believe that an emergency key-holder is an essential part of any interim care package. This is for the following reasons:

a) Mr and Mrs H value their privacy and it would be an unwanted intrusion into their privacy and sense of security at home.

b) Unless Mr H is incapacitated for some reason, he can be relied upon to ensure that his wife receives help if she becomes seriously unwell.

c) If significant concerns arise during the currency of any interim order authorising care at home, such as repeated refusals of contact or a period without care, the matter would be swiftly brought back to court.

d) Mr H is aware that any significant failure by him to allow access during the period of an interim order would be likely to result in the case returning to court, and his wife's continued residence at home being put at risk.

e) There are powers in sections 115 and 135 of the Mental Health act 1983 which enable a speedy response in most situations (these powers are not confined to situations where someone needs to be assessed for admission and date back to Victorian legislation).

f) The Police & Criminal Evidence Act 1984 allows for intervention where life or limb is at risk.

Social stimulation

Mrs H has a small but very close circle of friends which she has had for most of her life. The couple's friends, family and neighbours provide her with social interaction and stimulation.

It is highly unlikely that Mrs H would participate in social activities at a nursing home. For the reasons given, she would be likely to spend most of her time in bed. There would be a lack of stimulation compared with her life at home with her husband.

In my view, it would not be in Mrs H's best interests to give any directions concerning her social activities if she returns home. The couple appear to have a long-established social routine that works for them.

Review of the care package

If returned home, Mrs H's needs and care plan will be reviewed within six weeks of her return.

Mr H's conduct and relationship with professionals

Mr H has had many traumas, difficulties and disappointments to endure during recent years: his wife has been disabled by two strokes; he has experienced poor health himself; he has been refused NHS funding after her second stroke, despite her receiving it after her first stroke; he has been refused intermediate care services at home; the equipment provided to him has not always met his wife's needs; some equipment, such as rails, has not been provided; he has been subject to criticism as his wife's carer; he has been in conflict with some professionals; he has had little respite.

Mr H has tended to work heroically on his wife's behalf until overwhelmed by exhaustion and the demands placed on him by his wife's illness, his own health and a lack of adequate respite care. At such times, he has been angry and aggrieved and has expressed this for short periods by rejecting professional input or by requiring professionals to take on his duties. However, his devotion to his wife has ensured that even during these periods he has been there for her and the overall quality of her care at home has been good.

Mr H has sometimes found it difficult to work constructively with the local authority and medical professionals in relation to implementing a care package and obtaining suitable equipment for her. He finds it difficult to compromise on things that he feels sure would reduce his wife's suffering or improve her quality of life, but within these proceedings he has made significant compromises. He has been in disagreements with his wife's GP ("I do not deny that I am unable to work with Dr Y"), her social worker (he accepts their relationship has broken down), PH ("I was also very disappointed … with PH … As time passed I found her to be more and more dismissive towards me, she would refuse to talk to me at times and listen to what I had to say …") and KM ("I wanted her to perform her role as Community Matron, rather than perform the tasks that the district nurses were meant to provide").

On the evidence presently available, some of his criticisms appear to have merit and on occasions he has had good cause to be frustrated with the support given to him and his wife. At other times, his expectations have probably been unrealistic in terms of the range of services that current levels of funding allow.

Inability to compromise

On many occasions (in the local authority statements and submissions, and in court) it has been asserted by the local authority that Mr H is unable to compromise or to reach a reasonable compromise and, by implication, that trying further to enlist his support and co-operation would be a fruitless exercise.

Mr H is a devoted husband, and I think a proud man, who finds it difficult to accept anything but the best for his wife, and this forms part of the picture.

However, I also find that Mr H has compromised his position since these proceedings begun in various important ways. He has compromised on the number of carer hours he seeks; he has agreed to occupational therapy and carer's assessments; he has agreed to proposals for GP, District Nurse, community matron visits; he has agreed to abide by a review of Mrs H's Linkline needs; he has put forward a constructive proposal in relation to the deployment of carers.

It is not only Mr H who at times has been unwilling to compromise a strongly-held opinion about the care and treatment which Mrs H must receive in her best interests. Since the start of these proceedings the local authority has not compromised any of its demands.

When significant issues have been raised in court, time and again the local authority has told me that Mr H is not willing to compromise, rather than that neither of us will compromise. Of course, what they mean is that he is not willing to concede the relevant point and neither are they. Compromise, as opposed to concession or surrender, is an agreement that involves both parties giving up part of their preferred position in order to reach a working agreement.

In his statement of 5 May 2011, the social worker Mr C says that the respite issue "has proved to be a long standing stumbling block that Mr H has always consistently felt unable to compromise on."

The way that sentence is phrased is illuminating. Mr C does not say "which the parties have felt unable to compromise" or "which the local authority has felt unable to compromise on." Here, the local authority did not offer any increase of respite hours. They were not asking Mr H to compromise but to concede. In short, they were not willing to compromise their position.

Likewise, in Exhibit 3 to his statement, Mr C states that the District Nurses found it difficult to gain access and that Mr H "was not able to adapt" to delays caused by their other commitments and unanticipated problems. Mr H "would not permit … access if they did not arrive [during] his preferred period …" Another report states that "Despite an agreement, Mr H regularly fails to allow nurses to provide preventative catheter care …" The complete picture is rather different, as Exhibit 4 demonstrates. Mr H and the District Nurses had an agreement that the nurses could visit on Tuesday and Friday, between 12 and 1pm. However, this was "difficult for the District Nursing Team to sustain" because of delays and other commitments. In other words, the nurses (no doubt for good reasons) failed to keep the agreement, or also did so.

When the social worker, Mr C, recently assessed Mrs H's capacity to execute a Lasting Power of Attorney authorising someone to make personal welfare decisions for her, he reported to the court that, "My assessment indicated that even if she was able to understand the information related to [a] Lasting Power of Attorney, she would have not agree to anyone making decisions on her behalf other than her husband … She has consistently expressed her view that her husband … makes all decisions relating to her care and welfare and I feel that given this she would be unlikely to accept that another person could be appointed to make these decisions for her." She "has consistently allowed and insisted on her husband making all decisions …"

These passages tell us who she is likely to appoint if she has capacity in law to make an appointment, who she wants to make decisions for her, but not whether she has capacity. In my view, the underlying thought-process was that an LPA would not be suitable, and need not be explored further, because, from the local authority's perspective, she would choose her husband rather than someone to override him.

I have also read that, "Mr H has unreasonably refused offers of equipment ..." My understanding is that he has asked for adaptations or more suitable equipment, not refused equipment in the sense of doing without it. In my view, most of his requests have not been unreasonable, objectively, albeit that the budget may not enable them to be provided. It is not unreasonable to ask for a chair that provides arm support, or for latex gloves and disposable wipes, or for hall rails.

Of course, the authority would say that the needs identified by them are too fundamental to be compromised; but Mr H likewise feels that this applies to his opinion about the services his wife needs, but he has compromised on some of these issues dear to his heart.

Although the cost of the difference in relation to the number of care hours amounts only to around £150 per week, which is considerably less than the public cost of this litigation, the local authority has expressed the view that any increase would amount to allowing itself to be "blackmailed" and that it is "a point of principle." I cannot agree with the "blackmail" point. When discussing their needs with people who have mental health problems and their carers, establishing agreement and a therapeutic rapport through a reasonable compromise of different perspectives is an important aspect of responding to the patient's needs. One also has to consider the issue of what action is necessary in the context of avoiding an avoidable deprivation of a citizen's liberty.

As a finding of fact, the Official Solicitor aside, all parties must take some responsibility for the breakdown in the working relationship of Mr H, Mrs H and the local authority. Mr H has in effect acknowledged this by compromising his position; the local authority has fairly resolutely refused to do, and its portrayal of Mr H has led me to the interim finding that the local authority's approach has lacked flexibility and has become entrenched.

Suitability of a nursing home for Mrs H

I have noted that the delivery of effective care at home has been problematic at times.

The delivery of effective care in a nursing home is, however, likely to be equally problematic, and in my view this fact has not been acknowledged sufficiently in the submissions.

Mrs H is unlikely to co-operate with, or participate in, daily care activities in a nursing home, nor therefore to benefit significantly from such an environment.

It is not only her husband who has resisted some care offered to her; she has. The papers indicate that she is "very hostile" to nursing home care, and previously two nursing homes refused to offer a place because of concerns about her "behaviour, given that he strongly opposed such a move."

She has a history of not being willing to engage with, or talk to, professionals about her care needs. In hospital she has mostly refused to leave her bed. She often refuses to be turned by carers every 3-4 hours. She often shouts when being repositioned by nurses, and tells them to leave her alone and to go away. She has declined food and medication from hospital staff. She sleeps during the day, or watches television. She has refused to participate in assessments and has not taken part in any therapy, consequently making no improvement during the five months since admission. Necessarily, it is likely that she will resist care, and not engage, in a less-skilled nursing home environment.

(a) While a hospital patient from 28 August 2009 until 23 September 2009, consideration was given to a nursing home placement. "At this time … voluntary placement in a nursing home was discussed with Mrs H, but she was very hostile to the manager from the Nursing Home who visited the ward."

(b) A previous attempt to identify a suitable nursing home was not successful. Mrs H was assessed by two nursing homes. The homes declined to offer a placement due to concerns in regard to Mr H's behaviour, given that he strongly opposed such a move.

(c) She "continually told me to 'go away' or 'no thank you' … Mrs H was unwilling to talk to me about anything and repeated these phrases continuously" (Mr C, social worker's, statement of 25 May 2011).

(d) "She is very difficult to engage with" (Manual handling report of PH and LR, 17 May 2011).

(e) "Mrs H was always very brief in her replies to my questions, not wanting to engage in conversation or to initiate any topic. This made it very difficult to assess what her wishes were, or what she found suitable or not" (Statement of PH dated 19 May 2011).

(f) "Mrs H wasn't willing to participate in a SALT assessment" (Statement of PH dated 19 May 2011).

(g) "She is encouraged to sit out in the chair provided … but chooses not to most of the time. On average, she agrees to sit in the chair one day per week, though she has occasionally sat out three times in a week" (Manual handling report of PH and LR, 17 May 2011).

(h) Mrs H has spent most of her time in bed since being admitted to hospital on 11 January 2011, which is her preference" (Manual handling report of PH and LR, 17 May 2011).

(i) "Mrs H should be turned every 3 to 4 hours, however she often refuses" (Manual handling report of PH and LR, 17 May 2011).

(j) "Mrs H often shouts out when being repositioned by the nurses, and says to them to leave her alone and to go away. Although it would be explained the need to reposition her, she doesn't want to be moved." (Statement of PH dated 19 May 2011).

(k) She doesn't assist with the handling tasks at all (Statement of PH dated 19 May 2011).

(l) "She has declined food, medication and being transferred out of bed" (IMCA report).

(m) Most days she refuses to be assisted from bed to chair in hospital. Thus she has to eat and drink mainly in bed (Statement of PH dated 19 May 2011).

(n) "She doesn't want to be disturbed till about 10.00am and the majority of the time she refuses to eat breakfast. She has lunch around 12.30, and evening meal around 6.00pm. She sleeps most of the day, or watches TV" (Manual handling report of PH and LR, 17 May 2011).

(o) "She did not allow me to progress my assessment past shaking hands and this is consistent with her refusal to have therapy on the unit. Therapy staff report that she has not taken part in therapy and has therefore not made any change in function since admission (Intermediate Care assessment in hospital).

To quote from the intermediate care assessment in hospital, "it is extremely unlikely that she would make any progress with function or independence in an intermediate care placement when she has failed to do so in a specialist unit."

For this reason, as well as for the other stated reasons, I do not believe that it would be in Mrs H's best interests to be discharged to a "step down" nursing home, as a form of intermediate care, pending the final outcome of these proceedings. I also accept the Official Solicitor's submission that it is in her best interests that there should be as few moves and transitions as possible.

It seems to me highly likely that the picture seen in hospital will be repeated in a nursing home environment. She will spend most of her time in bed, resisting care and not engaging in treatment or social activities. If specialist staff in an internationally-acclaimed unit cannot motivate or get her out of bed, and engaged in activities, what chance will care assistants have in a standard nursing home?

In contrast, her husband does engage with her, and is able to persuade and motivate her to accept care. As a general rule, she responds to her husband's requests:

"Her husband visits her daily and arrives about 3.00pm, and he brings in food and drinks for her or encourages her to eat her meal provided by the hospital" (Manual handling report of PH and LR, 17 May 2011).

"Mr H has brought in food, which Staff Nurse X noticed Mrs H ate well" (IMCA report).

"She is not always willing to take her medication … She often takes her medication when her husband visits" (Manual handling report of PH and LR, 17 May 2011).

"Mrs H did not want to talk to me about issues regarding her care and accommodation but agreed at her husband's request" (Statement of KM dated 25 April 2011).

"I did not see evidence that her husband is not caring for her adequately. We saw her separately to him and she was positive about him and the care that he provides" (Dr K's report of 20 September 2010).

On the present evidence, I also find that a move to a nursing home is likely to have a detrimental effect on Mrs H's mental health and on her husband (who she wishes to be considered). I accept Mr H's evidence on this point because it is consistent both with what Mrs H has said and her resistance to professional or institutional care:

"My wife will most certainly go into decline. She has always been very clear to me that she did not want to go into a nursing home, or a similar environment and I made a solemn promise to her many years ago that I would do everything I could to ensure that she was cared for in her own home by myself."

"I cannot stand by and watch my wife give up hope, which I am certain is what will happen. My wife is a very strong woman in many ways but it will destroy her if she cannot come home and in turn this will destroy me."

"Everyday she tells me when I visit that she is upset and feeling low and she wants to come home. It breaks my heart to see her crying and begging me to take her home, she will not eat or drink during the day and spends much of her time sleeping or pretending to sleep until I arrive in the afternoon. When I get to the hospital I will often find her lunch sitting untouched on her bedside table … and she will not have consumed much if any water which is very bad as she needs to consume water throughout the day to make sure her catheter works sufficiently."

"As things stand I am more than capable of providing her with suitable care, nothing has changed since her admittance to hospital in January 2011."

In a nursing home, Mrs H would be separated from the most important person in her life, and from her home, and be distressed and unhappy. The main benefits would be being turned every three to four hours by two carers if and when she agreed to this, rather than sometimes by her husband alone; being hoisted by two carers on the rare occasions that she agreed to leave her bed, rather than sometimes by her husband alone; and having guaranteed nursing access, minimising the risk of infection and avoidable admissions for catheter care.

Deprivation of liberty

On the current evidence, I am satisfied that placing Mrs H in a nursing home, and her conveyance there, are likely to constitute a deprivation of liberty in that she will be confined in a particular restricted space (a nursing home) 'for a not negligible length of time'. Furthermore, she does not consent to the confinement, and lacks capacity to do so. She has consistently and persistently expressed her wish to return home and her opposition to residing in a nursing home. She will be separated from her husband, to whom she is devoted. At times, it is likely that she will be required to receive professional treatment and care which she objects to.

In terms of the standard authorisation route, Mrs H satisfies the age requirement, the mental health requirement, the eligibility requirement, the mental capacity requirement and, in the absence of evidence of an advance decision, the no refusals requirement. As concerns the best interests requirement, the test is whether her detention in the nursing home for the purpose of being given care or treatment, in circumstances which amount to a deprivation of her liberty, would be in her best interests; whether it is necessary for her to be a detained resident in order to prevent harm to her; and whether her detention in such circumstances would be a proportionate response to the likelihood of her suffering harm and the seriousness of that harm (if she were not so detained).

The court is not obliged to decide whether to make an order authorising deprivation of liberty by reference to five of the six requirements but inevitably many of the relevant considerations are pertinent to both procedures. The case law tells me that, provided there is credible expert evidence that the individual is of unsound mind and lacks capacity to decide the relevant issue, the issue is simply whether deprivation of liberty is in their best interests. Necessarily, this involves and includes considering whether detention is appropriate and proportionate and whether the purpose for which the proposed detention is needed could be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.^[42] I have already made it clear that I do not believe that residing in a nursing home is in Mrs H's best interests at this stage and, necessarily therefore, I do not believe that it would be in her best interests to deprive her of her liberty to effect that end.

In reaching my view, I have of course also had regard to section 1 and the need for me to consider whether the purpose for which the act is needed can be as effectively achieved in a way that is less restrictive of the individual's rights and freedom of action.

Relevance of an interim order

The fact that this is an interim order does not justify "parking" Mrs H in a nursing home pending the final outcome, simply because it may be perceived as the safest option. It is a question of what is in her best interests at this stage. As the Official Solicitor has noted my order may determine her residence in "the medium term," by which is meant several months. This carries a risk of institutionalisation and relatively few people return home after being placed in a nursing home. In any case, for the reasons given, I believe that it is in Mrs H's best interests for her to return home at this point, on the terms set out below. I hope that Mr H and local services will work constructively together to make this work and to maximise the time that Mrs H can spend at home with her husband within what remains of her life.

Summary

The table below summarises some of the main advantages of a home or nursing home placement:

IN FAVOUR OF HER HOME	IN FAVOUR OF A NURSING HOME
Consistent with her consistent wishes and feelings.	There would be no possibility of interrupted nursing care.
Positive psychological and emotional benefits.	There would be no possibility of inadequate catheter care or of avoidable admissions to hospital due to problems of access
Consistent with her values as a partner to a long marriage.	There would be no possibility of professionals being not being able to access Mrs H.
Continual contact with a devoted husband who can offer her affection and emotional warmth, and to whom she is devoted.	All hoisting will be done by two persons, as advised by PH
Likely to have more social contact and stimulation than in a nursing home. She enjoys her husband's company and has a small, close-knit, circle of friends.	Mrs H will not be allowed to sit in her sling when she consents to sit in an armchair, as advised by PH.
Benefits of being at liberty, which is a matter of fundamental importance.	Any medical emergencies are more likely to be promptly dealt with, other than possibly at night
She will receive care from her husband, who she trusts and allows to provide care, who knows her routines and what causes her happiness, pain or discomfort.	Mr H will not be able to affect aspects of the care package with which he disagrees.
It is what her husband wishes, and she wishes him to be happy.	Mrs H will be offered three regular meals a day.
The home is clean and tidy and a homely environment for her.
She is functioning at the same level as prior to admission and Dr K felt that she should remain at home shortly prior to admission.
She does not have a primary need for healthcare, according to NHS assessments.
Her nursing or other health service needs are no more than incidental or ancillary to the provision of accommodation, according to NHS assessments.
Her needs can be met by a suitable package of care at home, according to NHS assessments.
Her current admission is not attributable to any lack of care at home.
She will have GP support and district nurse visits.
There will be an occupational therapy assessment of her need for equipment.
Her husband will now receive a carer's assessment and may be entitled to services in his own right.
The community matron will visit fortnightly.
Mr H has demonstrated that he can use the hoist at home on his own.
As a matter of fact, she has not suffered injury when using a sling to support her in the armchair.
She often refuses to be turned in bed by professional carers, shouting and telling them to go away.
In hospital, and in all likelihood in a nursing home, she remains in bed most of the time, unengaged, not accepting any therapy, not taking part in activities, refusing assessments, at times declining food, liquids and medication. She is unhappy and in return receives little of benefit other than basic security. She has no quality of life.
Her husband will abide by the decision about the usefulness of a Linkline or some similar system.
An emergency key-holder is not essential during the duration of the interim order.
The care package will be reviewed after six weeks. The case will not be allowed to drift.
Any significant problems can be dealt with swiftly and effectively by returning the matter to court, and by various other legal means.
A placement In a nursing home would be likely to be final; few people return home, many become institutionalised.
Deprivation of liberty is premature and contrary to the least restrictive principle; there is still an alternative that may be viable.
It is likely that she will be miserable in a nursing home.

In my view, the appropriate interim decision is that Mrs H returns home with a package of care of the kind summarised below.

In coming to my decision, I have given consideration to all of the factors which I have referred to and analysed.

The quality of Mrs H's relationship with her husband, the strength of their marriage, and the fundamental importance of that relationship to her happiness and indeed her care, have deserved considerable weight.

To my mind, Mr H put it best in his own statement for the court:

"What I will say is that I have been married to JH for over thirty years and during that time we have been devoted to one another. I do not consider it to be an understatement to say that we cannot live without each other and if the court went against my wife, mine and the wishes of her family and placed her in a nursing home I believe it would be the end of us. I do not say this lightly and I do not want this to be interpreted as a threat, it is a simple fact."

"One thing I would wish to make clear is that this is our life, [JH] and mine, we have lived together happily for over thirty years and are still devoted to one another. The professionals involved have come into our lives and instead of trying to understand us they have tried to impose their thoughts about JH's care on us. These people will come and go, there will be different carers, social workers and district nurses that will come and go from our lives, but we are each others constants. We are husband and wife and this is our life, this is not work, not something we will be involved in for a few months here and there before we move onto a new client but it is our life and the outcome of theses proceedings have the ability to break up a loving family because we are considered to be difficult. I am made out to be causing harm to my wife, this is simply not true. The care I provide to my wife stems from the love and respect I have for her and the wish for her to be happy. The care I give her is not because I am being paid to do it. When I give her care I am not restrained in the time I can dedicate to her because I have several other service users that need my attention as would be the case if she were placed in a nursing home. The level of care I can provide for my wife will always be superior to that provided by people employed to provide it.

It can be seen that from the evidence of the local authority there has been no reference to any criticism of the care I have provided to her.

I know that I may come across as being difficult and that I may appear to be a stubborn man, but everything I have ever done has always been with the belief that I am doing in her best interests."

I have been guided by the following decisions and have found them of tremendous assistance in this case: Re S (Adult's lack of capacity: carer and residence) [2003] FLR 1235; Re MM; Local Authority X v MM (by the Official Solicitor) and KM [2007] EWHC 2003 (Fam), [2009] 1 FLR 443; Re: GC [2008 EWHC 3402 (Fam)]; and The London Borough of Hillingdon v Steven Neary and Mark Neary and Others [2011] EWHC 1377 (COP). The judgment in Re: GC has been particularly pertinent:

"GC is a man in the 83rd year of his life and my concern is to ask myself: how will he most comfortably and happily spend the last years that are available to him? Secondly I have approached this case on the basis that his primary need is for emotional warmth, emotional security and the commitment of human relationship. That has been a huge feature of his life to date and one that is not readily to be set aside. Next it seems to me that for the elderly there is often an importance in place which is not generally recognised by others; not only physical place but also the relational structure that is associated with a place ...."

"It seems to me that it would be wrong not to try, even with a degree of pessimism, a placement with a package of support that has been advanced, and this is another factor that has weighed with me in this case; that it would be wrong to take a step, unless one had to that had a real prospect of preventing a placement at home ever being tried."

I have tried to apply a "pragmatic, common sense and robust approach to the identification, evaluation and management of perceived risk." Having done so, I believe the risks associated with residence in a nursing home outweigh the risks involved in a return home, that the benefits of being at home are greater than the risks involved in being cared for there, and that these benefits are considerably more significant for Mrs H than the benefits of a nursing home. In both settings it is likely that she will receive less than optimal care, at home because realistically not all of the past disagreements will be resolved overnight and simply evaporate into thin air, at the nursing home because she will resist and resent care and the disagreements remain.

Whether the relevant purpose can be achieved in a less restrictive way

Section 1 regards me to have regard to whether the purpose for which the decision is required can be as effectively achieved in a way that is less restrictive of Mrs H's rights and freedom of action. Of course, I cannot guarantee her safety in any environment but I am satisfied that the balance at this stage favours a return home. Any significant breakdown in the care package will no doubt be identified immediately and followed by appropriate action, including if necessary an application to this court. There will be no question of an unsatisfactory situation at home developing and being allowed to drift. In the meantime, as Ms Miles says, a side benefit will be that valuable information will be gathered for the court about the parties' ability to comply with the court's expectations.

15 — ORDER AND DIRECTIONS

This case comes back before me on Friday (15 July 2011). Subject to any applications for leave to appeal, I would ask the parties to submit a draft order that includes the following provisions:

Care package/discharge plan

1.. Mr H to re-register his wife with another practice prior to discharge. If this is not possible, he is to arrange a GP with her existing practice.

2.. Mr H to allow two weekly visits to his by District Nurses on Tuesdays & Fridays at approximately 11.00am, to provide bladder washout & catheter care, and refitting the suprapubic catheter. District nurses to call him by phone if they are running late, to rearrange the visit to a later time. Mr H to remain at home if they are running late and to permit access on arrival.

3.. A carer's assessment to be untaken as soon as possible and also an assessment of whether Mr H is entitled to services in his own right (rather than as a carer).

4.. An occupational therapist (OT) will assess the home prior to discharge to ensure appropriate equipment is in place prior to Mrs H's discharge from hospital. The OT will be present at the first carers' visit, to assess Mrs H's moving and handling needs and whether further equipment is required. The hospital OT will liaise with the community OT.

5.. OT to address Mr and Mrs H's concerns that she needs a mattress that massages her and helps to ensure that she does not suffer with soreness; that her armchair enables her to utilise the arm rests fully, and that she has a sling that is kind to the skin. If financial constraints limit the provision of equipment, this is to be made clear to Mr H in writing so that he appreciates the reasons why equipment or adaptations cannot be supplied. Mr H to abide by the assessment.

6.. Community matron to visit fortnightly.

7.. Local authority to consider whether carer plan can be amended to allow one carer between 2 and 10pm from Monday to Saturday (48 hours). If the local authority are unwilling to compromise on this, carer visits and hours as per the local authority plan save that, pending the hearing on Friday and further argument and order, the court refuses consent on Mrs H's behalf to an early breakfast visit.

8.. Mr H to abide by outcome of Linkline pendant or alternative system review.

9.. The parties to consider whether a key could be left with a third-party trusted by Mr H but, if no agreement, no emergency key-holder.

10.. Care plan to be reviewed within six weeks of Mrs H's return.

11.. Leave to the parties to apply on 24 hours notice or, in any genuine emergency, ex parte.

These services are services which the local authority has at its discretion decided that Mrs H needs and has a statutory function to provide and which I have decided at my discretion it is in Mrs H's best interests to receive.

Entitlement to benefits

Provided they consent, Mr H's solicitors to review whether he and his wife are receiving an appropriate level of Disability Living Allowance, and whether they may be entitled to any other benefits or grants which could be used to purchase respite care.

Entitlement to NHS funding

If the Official Solicitor or Mrs H's husband wishes to apply for authorisation to challenge the NHS-funding decisions, it would be helpful for any such applications to be made at the hearing on Friday

Mediation

The parties shall discuss whether any available mediation service would be useful and also the extent to which the independent social worker could fulfil such a role.

The local authority to consider, and discuss, whether a change of social worker and/or occupational therapist would be beneficial and help to ensure that Mrs H receives the consistent care they have identified her as needing.

Independent social work report

Independent social worker to see Mrs H in early August, and to produce a report by mid-September, as already agreed.

Older age psychiatrist to produce a report

As suggested by the local authority, local authority to instruct and, as necessary, fund an older age psychiatrist to review Mrs H's needs. It would be helpful for Dr K to review developments since his last report and whether Mrs H has capacity to execute an LPA for personal welfare decisions (including appointing her husband).

Advance decision

Official solicitor to inspect Mrs H's medical and social care notes and to advise the court as to whether there is any evidence of a relevant advance decision.

Transfer of case

Parties to consider whether case requires transfer a more senior member of the judiciary, given that a deprivation of liberty issue has now arisen.

Leave to appeal

The parties shall try to ensure that any applications for leave to appeal are made by the time of the hearing on Friday. If a party intends to seek leave, that party shall set out their case in their skeleton argument, and address the criteria in the rules for leave and setting aside first-instance decisions. They should also liaise with the court's Listing & Appeals division at the earliest opportunity and ascertain when an appeal could be heard.

Review hearing

A review hearing is to take place by the first week in September, to review progress and to seek to resolve any difficulties that have arisen.

Final hearing

The timing of the final hearing, and what other directions required, shall be considered and finalised at the hearing on Friday 15 July 2011. The parties should consider which witnesses will be required to give oral evidence and provide the court with an agreed time estimate. It may be useful for them to consider whether a further roundtable meeting after the filing of expert reports and final statements would be useful, and whether a final directions/issues resolution hearing should be pencilled in at this stage.

Note 1    Mental Capacity Act 2005, s.2(1).    [Back]

Note 2    Mental Capacity Act 2005, s.2(2).    [Back]

Note 3    Mental Capacity Act 2005, s.3(1).    [Back]

Note 4    Mental Capacity Act 2005, s.3(2).    [Back]

Note 5    Mental Capacity Act 2005, s.3(3).    [Back]

Note 6    Mental Capacity Act 2005, s3(4).    [Back]

Note 7    Mental Capacity Act 2005, s.2(3).    [Back]

Note 8    Mental Capacity Act 2005, s.2(4).    [Back]

Note 9    See Re F (Court of Protection, HHJ Marshall QC, 28 May 2009).    [Back]

Note 10    The Decision-Support Tool for NHS Continuing Healthcare was introduced by the Department of Health on 1 October 2007. Each domain is sub-divided into statements of need representing no needs, low, moderate, high, severe or priority levels of need, depending on the domain. Regulation 2(4) of The NHS Continuing Healthcare (Responsibilities) Directions 2007 provides that the relevant PCT must ensure that a multi-disciplinary team undertakes an assessment that is to be used to inform a decision as to a person’s eligibility for NHS Continuing Healthcare. By paragraph (5), the PCT must ensure that the Decision Support Tool is completed, and then use it to inform the decision as to whether the assessed person has a primary health need.    [Back]

Note 11    Decision Support Tool for NHS Continuing Healthcare (Department of Health, London, July 2009).    [Back]

Note 12    See The National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care (Department of Health, London, July 2009, revised).    [Back]

Note 13    His letter is erroneously dated 25 April 2011.    [Back]

Note 14    It is necessary to assess (a) Mrs H’s entitlement to services; (b) Mr H’s entitlement to services as a carer; and (c) Mr H’s entitlement to services under the National Assistance Act 1948, as a chronically sick and disabled person under the Chronically Sick & Disabled Persons Act 1970 and subsequent disability legislation. It may be that he is entitled to further services other than as a carer.    [Back]

Note 15    The papers do not indicate on what legal basis the police claimed a right to enter the premises without a warrant, nor therefore (if they were seeking to trespass) on what basis they were empowered to arrest Mr H if he refused them entry. The court has not been told that a warrant was obtained under section 135 of the Mental Health Act 1983, or that the “saving life or limb” provisions in section 17(1)(e) of the Police & Criminal Evidence Act 1984 applied.    [Back]

Note 16    ITW v Z [2009] EWHC 2525 (Fam), per Munby J, at para. 32.    [Back]

Note 17    ITW v Z [2009] EWHC 2525 (Fam), per Munby J, at para. 35.    [Back]

Note 18    The London Borough of Hillingdon v Steven Neary and Mark Neary and Others [2011] EWHC 1377 (COP), at para 24.    [Back]

Note 19    Re MM; Local Authority X v MM (by the Official Solicitor) and KM [2007] EWHC 2003 (Fam), [2009] 1 FLR 443, paras 115-121, per Munby J.    [Back]

Note 20    Re: GC [2008 EWHC 3402 (Fam)], per Hedley J.    [Back]

Note 21    Re S (Adult’s lack of capacity: carer and residence) [2003] FLR 1235, per Wall J, at (14).    [Back]

Note 22    Storck v Germany 61603/00 (2005) ECHR 406.    [Back]

Note 23    See HL v UK 45508/99 (2004) ECHR 471; Storck v Germany 61603/00 (2005) ECHR 406.    [Back]

Note 24    See Ashingdane v UK 8225/78 (1985) ECHR 8. Article 5 of the European Convention on Human Rights is not concerned with restrictions on liberty of movement, and the United Kingdom has signed but never ratified Protocol 4 to the Convention, Article 2 of which states: “Everyone lawfully within the territory … shall … have the right to liberty of movement and freedom to choose his residence.”    [Back]

Note 25    SeeAshingdane.    [Back]

Note 26    See e.g. HL v UK 45508/99 (2004) ECHR 471; Storck v Germany 61603/00 (2005) ECHR 406; JE v DE and Surrey County Council (2006) EWHC 3459 (Fam).    [Back]

Note 27    See Winterwerp v Netherlands 6301/73 (1979) ECHR 4.    [Back]

Note 28    See Storck v Germany 61603/00 (2005) ECHR 406    [Back]

Note 29    If she had simply had a stroke, it might be argued that she falls outside the standard and urgent authorisation provisions in Schedule A1 (because she does not have a mental disorder, i.e. an impairment or disturbance of the mind). The point turns on whether Parliament intended to restrict the population to which the schedule applies.    [Back]

Note 30    Evidence is required on this point. If there is evidence, for example in her medical or social care notes, that something she said or wrote when she had capacity constitutes an advance decision refusing relevant treatment then a standard authorisation would be unlawful, the underlying principle being that one cannot use the Mental Capacity Act to break the Mental Capacity Act. The definition of treatment is now very wide, as a result of the amendments made by the Mental Health Act 2007.    [Back]

Note 31    The term “nursing home” was that used under the Registered Homes Act 1984. Under the Care Standards Act 2000, a “nursing home” has to register as a care home or as a hospital.    [Back]

Note 32    By paragraph 6 of Schedule A1 to the 2005 Act, a “detained resident” is “a person detained in a hospital or care home — for the purpose of being given care or treatment — in circumstances which amount to deprivation of the person’s liberty.” If this is, or will not be the case, then no authorisation is required, because there is no deprivation that needs authorising.    [Back]

Note 33    G v E (by his litigation friend the Official Solicitor), A Local Authority and F, Court of Appeal (Sir Nicholas Wall P, Thorpe LJ, Hedley J) [2010] EWCA Civ 822    [Back]

Note 34    Hillingdon LBC v Neary [2011] EWHC 413 (COP).    [Back]

Note 35    LBB v JM, BK and CM (unreported, 5 February 2010). Hedley J.    [Back]

Note 36    The PCT v P, AH and a Local Authority [2009] EW Misc 10 (EWCOP), per Hedley J.    [Back]

Note 37    See R v. Ashworth Hospital Authority (now Mersey Care National Health Service Trust) (Appellants) ex p. Munjaz (FC) (Respondent), HL [2005] UKHL 58, per Lord Bingham: “[The Code] describes itself as guidance. There is a categorical difference between guidance and instruction. …. The Code does not have the binding effect which a statutory provision or a statutory instrument would have. It is what it purports to be, guidance and not instruction. But it is much more than mere advice which an addressee is free to follow or not as it chooses. It is guidance which any hospital should consider with great care, and from which it should depart only if it has cogent reasons for doing so … In reviewing any challenge to a departure from the Code, the court should scrutinise the reasons given by the hospital for departure with the intensity which the importance and sensitivity of the subject matter requires … It is not for the courts to resolve debatable issues of professional practice, but to rule on issues of law. If a practice is supported by cogent reasoned justification, the court is not entitled to condemn it as unlawful.”    [Back]

Note 38    ITW v Z [2009] EWHC 2525 (Fam), per Munby J, at para. 35.    [Back]

Note 39    Autonomy in the practical, everyday sense, rather than a strict legal or philosophical sense (i.e., autonomy vs heteronomy of the will).    [Back]

Note 40    Sir James Hannen in Durham v. Durham [1885] 10 PD 10; 1 TLR 338. Their marriage vows would, I assume, have been along the familiar lines: “I take you to be my wedded wife/ husband. To have and to hold, from this day forward, for better, for worse, for richer, for poorer, in sickness or in health, to love and to cherish ‘till death do us part.”    [Back]

Note 41    The research findings presented to the court included the following two studies. Firstly, a well conducted systematic review including 12 trials (1,659 patients) showed that early supported discharge (ESD) reduces death and dependency in patients with mild/moderate stroke when compared to conventional treatment. Langhorne P, Holmqvist LW,Early Supported Discharge Trialists, Early supported discharge after stroke. J Rehabil Med 2007;39(2):103-8. Secondly, the risk of infection rose fairly steadily as hospital stay length increased (correlation coefficient: 0,83, p<0.01), European Journal of Epidemiology.    [Back]

Note 42    G v E (by his litigation friend the Official Solicitor), A Local Authority and F, Court of Appeal (Sir Nicholas Wall P, Thorpe LJ, Hedley J) [2010] EWCA Civ 822    [Back]