England and Wales Court of Protection Decisions

IN THE COURT OF PROTECTION

		Courts of Justice Earl Street Carlisle Cumbria CA1 1DJ
		23rd October 2013

MR JUSTICE PETER JACKSON:

1. These Court of Protection proceedings under Section 21A of the Mental Capacity Act 2005 were brought in May 2013 on behalf of a 67-year-old lady named M. In them, acting by her Litigation Friend and Independent Mental Capacity Advocate, M challenges a Deprivation of Liberty Standard Authorisation that would otherwise remain in effect until February 2014. That authorisation began soon after M entered a care home in June 2012 and its effect is to prevent her from leaving it.
2. M wants to return to her own home, a bungalow that, until she went into residential care, she had shared for much of the time with her partner of 30 years. He is A, who maintains his own property, where he would stay for a few days a week, spending the rest of the time with M. A is also a party to the proceedings and supports M's application.
3. The application is opposed by the Care Commissioning Group ('CCG') that is responsible for providing the services that M undoubtedly requires, whether she is in a care home or in her own home, due to her very substantial medical needs, the most prominent being control of her diabetes. The CCG relies on the assessment of members of its multi-disciplinary team.
4. Against this, M has been assessed by a Consultant Psychiatrist, Dr Ian Leonard, who on balance recommends that a return home should be attempted.
5. Over the course of a day and a half I have read the papers which contain statements from no less than 21 witnesses, heard evidence from Dr Leonard, from three witnesses for the CCG, from the Litigation Friend, and from A, as well as submissions from counsel. I have also read a verbatim note of a meeting that took place last month when the District Judge who had been managing the proceedings visited M in the care home.
6. My conclusions are these: Firstly, the question of capacity is not in dispute. Applying Section 2(1) of the Mental Capacity Act, I find that arising from her medical condition M has an impairment of the functioning of the mind or brain. It is relatively mild, but in the view of Dr Leonard, which I accept, it crosses the diagnostic threshold.
7. Secondly, I find that M lacks capacity to decide where she should live. This is because a central component in that decision is an appropriate appreciation of the risks arising from the lower level of supervision of her diabetes management that a home placement entails compared with 24-hour professional oversight. M has an inflexible but mistaken belief that she can manage her own diabetes and consequently cannot weigh up the serious risks involved in a reduction in the level of supervision.
8. Thirdly, best interests. This is in dispute. There are only two available options; a continuation of the status quo and a return home with a standard care package. No other alternatives are available. 24-hour medical care at home is prohibitively expensive and would anyhow be rejected by M. There is no other care home that she would be likely to accept. A sub-issue arose at a late stage in the proceedings about the availability to M of a new diabetes drug that might improve her protection at home. On further investigation, the evidence of the specialist nurse, Miss L, established that this is not of relevance to the present decision.
9. Applying Section 4 of the Mental Capacity Act and accepting the evidence of Dr Leonard, I find that it is in M's best interests for her to return home with the benefit of a domiciliary medical and care package consisting of twice daily visits from district nurses to supervise her insulin regime and regular visits each day from care staff. To give effect to this and to allow the parties to draw up a care plan I will discharge the standard authorisation a month hence.
10. I am in no doubt that M was rightly accommodated in the care home in 2012, despite her objections, and that the standard authorisations were rightly granted in the earlier stages. However, in the past year her physical condition has improved as a result of the care she has received. Without this a return home could not happen. The committed support that A will give is also a significant factor.
11. My message to M is this: I hope that you will be happy when you return home. If you accept the support you will be getting from district nurses and carers it may be possible for you to stay there. If you do not accept that support you will probably have to return to a care home.
12. I will now set out the history and my reasons for the best interests decision.
13. From the age of 13 M has had Type 1 insulin-dependent diabetes. She was able to manage that well and lived a normal life at home and at work for many years. Unfortunately in her forties she began to suffer problems with her eyesight, and at the age of 53 one eye was removed, leaving her with just ten percent vision in the other. Since 2008 her health problems have multiplied. She required major surgery in 2009 and later that year she collapsed after what may have been a stroke. This marked a watershed in her ability to manage independently. She has become markedly inflexible in the level of support she wishes to accept, insisting on her own assessment of her diabetic management.
14. In 2011 that condition became unstable and she had five acute admissions to hospital, having become ill with diabetes ketoacidosis (DKA), a potentially fatal condition. She was discharged either home or to a nursing home. In 2012 there were two further admissions with high blood sugar. On the second occasion she was discharged to a residential home where she broke a hip. By April 2012 she was bedbound, incontinent and confused. In June 2012 she was admitted to the current care home.
15. M does not suffer from any major mental illness, though Dr Leonard considers she is currently mildly depressed. She takes antidepressants.
16. At the care home there has been a marked improvement in her diabetic control, nutrition, mobility, continence and cognition, though her diabetic control is still suboptimal because she is only partially compliant with her insulin regime and because she refuses to eat any food provided by the home. She is able to get around indoors and outdoors, but she is vulnerable to falls.
17. M has repeatedly and consistently said that she wishes to return home and has said that she will take her own life if this is not allowed to happen.
18. Between the 2^nd and 4^th of October M went to a residential rehabilitation unit to assess her ability to return home, but this failed as she was uncooperative and the unit did not feel able to manage her medical needs.
19. M has been multiply assessed by specialists of all descriptions whose statements appear in the papers. Their united view is that from the point of view of M's health she would be safer in the care home than at home. For example her current community mental health nurse says this:

"From my past experience of the case and the unsuccessful period of residential rehab, I do not feel that reducing the risks within her home would be attainable and that 24-hour care is the most appropriate option of providing the care she requires and ensuring that this care is delivered."

And later:

"It is my opinion that [a return home] has been attempted extensively in the past and due to M's refusal to comply with the care plan there were multiple significant incidents when her life was threatened. Although she may report that she would be happier at home, there is a significant risk that she would come to serious harm should she return home."

20. The manager of the care home says this:

"I believe that as it is M's wish to return home, this could result in her being happier than the current situation. I also believe that her relationship with her partner is important to her and her expressed wish not to be separated from her partner would cause her less distress. However, it has been known that A has asked staff to make excuses for his leaving as her behaviour towards him has been stressful, and when in the home environment this facility may not be as easy. This could impact upon their relationship.

I also believe that she would be more comfortable within her own surroundings as she frequently expresses her displeasure about not sleeping in a double bed and not having her own possessions around her. In her views expressed to myself her home is her security as she can be on her own, of which is her preference as she has always been a solitary character. However, it is this opinion that has impacted upon her diabetes management when being at home in the past. Her refusal to accept support within her own home has been identified by the district nurses and care agencies. This could have devastating consequences on her health should she refuse the access to care services and that is highly likely.

I believe that M would be able to have more control over her life which she desperately wants, and in turn this will make her happier. However, the way that she takes control of her diabetes is inappropriate and could result in further admissions or deterioration in her health that could result in fatality."

21. In relation to the management of M's diabetes, Miss L, a senior specialist nurse, clearly explained the processes involved, the nature of the medication regime, and the range of consequences arising from non-compliance of different kinds. Her evidence establishes that if there is a default in the insulin supply that M receives there will undoubtedly be a deterioration in her physical health. The probability is that this would be picked up, but the length of time that would be available to take action would be limited with the likeliest scenario being a situation that had to be resolved within a certain number of hours or a few days; however the possibility of a more urgent and possibly fatal event cannot be discounted.
22. Dr Leonard has met M three times and liaised with many of the other key professionals including a diabetic consultant. I find him to be a careful, balanced and realistic witness and I accept his evidence. I take these points from it. He says that this is not an easy decision and M's circumstances are really uncommon in that she lacks capacity on the crucial issue of her care needs, but in other respects has a clear understanding of her immediate environment.
23. He regards the current situation as not necessarily being stable because of the strength of M's feelings and in particular the situation that she would be in if, having brought these proceedings, she regarded them as having failed. Her views are consistent and unchanged; indeed Dr Leonard regards them as being unchangeable in all probability. Her negative view of her circumstances is eloquently expressed, and her threats of self-harm are taken seriously by Dr Leonard, who considers them a significant risk.
24. Dr Leonard considers that M has an unrealistically optimistic view of the situation that would exist if she returns home. He advised that her response following a return could not be predicted. She might appreciate that she was more likely to stay at home if she cooperated with support services, but this could by no means be guaranteed. As to the prospects for success, the impression given by Dr Leonard throughout his evidence is that these are guarded, but by no means unattainable. As to M's current quality of life he described it as being significantly adversely affected by her current deprivation of liberty. He referred to the unsuitable, from M's point of view, group of other inhabitants of the home, many of whom are much older and suffering from advanced dementia. He pointed to her objections about lack of privacy, inability to come and go and alienation from her home environment and her possessions. It is also the case that a recent occupational therapy report confirms that M's needs are not, in that regard, being met.
25. Dr Leonard further describes a refusal of this application as being seen by M as final and says that the message that she would take would be that she was neither going home now nor, in all probability, at any time in the future.
26. As to the best interests decision, Dr Leonard describes it as not being an easy one. He says that risks exist, whichever course is taken, and that any plan will need close monitoring. His ultimate conclusion appears in the summary and opinion of his report of the 16^th of October:

"In addition to the interaction of different factors that make up her overall best interests, their consideration is very dependent upon the weight given to these different aspects of her best interests. There then remains the uncertainty surrounding any particular course of action and that some variables, for example the quality and availability of care staff in the community, along with whether or not they form a positive relationship with M, can be positively influenced but not completely controlled. In contrast, the nature of her experience and health within residential care from 2012 is more clearly known, nonetheless I have also indicated that I do not think this can be assumed to be a stable situation."

My own conclusion is that a successful return home would be in her best interests and that all options to achieve this have not been fully explored. I am aware of the situation during 2011 and concerns that this pattern of deteriorating health could be repeated, but an acceptance of more limited aims for her diabetic management, emphasis to her of the very limited options for enabling a return home, predetermined arrangements for access, and the improvement in her general health during the past year may represent conditions from which it could be achieved."

27. M's partner, A, gave as his view that although he is concerned about M's compliance, in particular with carers, such has been the good work of the care home, that she could do with a trial of being at home with a care package. He described the areas in which M would need help from carers. They fall into the category of support services in and outside the home rather than intimate care. He described how he and M used to share a bedroom in the past and would hope to do so in future if this was possible.
28. I express the reasons for my best interests determination with reference to Section 4 of the Mental Capacity Act. This reads, relevantly, at subparagraphs 2 to 7:

4 Best interests

This sectionnoteType=Explanatory Notes has no associated

(1)…

(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).

(8-11) …..

29. Reviewing these matters, I do not consider that M will recover capacity in relation to the matter in question. I do consider that so far as practicable she has been permitted and encouraged to participate in these proceedings by means of her litigation friend and IMCA and by the visit of the Judge to her at the care home. I do not, in evaluating this matter, in any way approach matters out of a desire to bring about M's death. On the contrary, I approach that matter with great caution, accepting the submission on behalf of the CCG that the administration of diabetes in this case might be regarded as life-sustaining treatment as defined in subparagraph 10.
30. When coming to consider the core questions that arise under subparagraph 6 as being amongst the circumstances of the case, it is worth noting that so far as I can tell there is no information that is seriously in dispute in this matter. The facts are broadly as set out above and are not contested by the parties, it is the weight to be given to them that is in issue.
31. As to M's wishes and feelings, these are very clear and entirely consistent regardless of who she is speaking to or where the conversation is taking place. M hates it at the care home; she hates the people, she hates the noise, the impersonality, the lack of privacy and the absence of her own surroundings. She said this in parting to the District Judge: "I want to be out of here quick or be dead." Whether or not her threats to kill herself represent a real physical threat, they undoubtedly represent an expression of the strength of her feelings. I place considerable weight on M's wishes, bearing in mind that the domain in which she is incapacitated does not extend over all areas of her life. As Mr Stockwell, on her behalf, put it, the essential justification for the deprivation of liberty is the prevention of DKA.
32. M's views are quite understandable bearing in mind the restricted and impoverished quality of her life in the home. This is no fault at all of the home itself, but it is in most ways not a suitable place for her. What it does offer is the best available quality of care for her diabetes management, but at what cost? That question is pithily answered by Mr Butler in his position statement in which he says that at the care home there is almost complete certainty of physical safety at the cost of the happiness of M, even if that might somewhat overstate what can be achieved at the home.
33. Turning to M's beliefs and values, both before and after her illness, M is described by A as being a private and independent person. They cohabited part time, with each of them feeling happy to keep their own homes. The impact of group living on M is in consequence more difficult than it would be for many others. Another of M's characteristics is that she has always been a determined person, but since her illness this has developed into a habit of inflexibility. She is acknowledged to be a particularly difficult person to help. This is likely to continue wherever she lives.
34. In relation to the views of others, I have taken account of the views of all those referred to above. I am in no doubt that everyone concerned has thought hard about what is in M's best interests. It is not surprising that witnesses called by the CCG are by vocation highly motivated by their responsibility to keep her safe. I also place substantial weight upon the judgement of A, who knows M and her situation extremely well.
35. Ultimately the court must balance these factors:

M's wishes, feelings and values which point towards a return home.

The best possible control of her diabetes, which points towards her remaining in the care home.

The risks to her health that exist in the care home, both by way of a possible deterioration in her physical and mental state consequent upon her being made to stay there, and by way of her threats of self-harm.

The risks to her health that would exist following a return home, as described by Miss L.

36. Having weighed these matters up I have reached the clear conclusion that the case for a continued deprivation of M's liberty has not been made out. I accept that there are many uncertainties in a return home, indeed more uncertainties both of a good and a bad kind than in maintenance of the status quo. Negatively these include a possible deterioration in her physical and mental state as a result of non-cooperation. The deterioration may be gradual, but might also be sudden, occurring in a matter of a few hours, and may even, though perhaps less likely, be instantly life-threatening. Any decision that M returns home must accept the real possibility that the attempt will fail and the possibility in the worst case that she may die as a result of a sudden deterioration in her condition. Like Dr Leonard, I do not however accept the view that failure is inevitable.
37. The above disadvantages are, in my view, outweighed by the following considerations.

The possibility that cannot be ignored that M will cause herself serious physical harm if she is told that she is not going home.

The real possibility that her enjoyment of life might to some degree be recovered following a return home even if it does not fully meet her expectations.

38. In the end, if M remains confined in a home she is entitled to ask "What for?" The only answer that could be provided at the moment is "To keep you alive as long as possible." In my view that is not a sufficient answer. The right to life and the state's obligation to protect it is not absolute and the court must surely have regard to the person's own assessment of her quality of life. In M's case there is little to be said for a solution that attempts, without any guarantee of success, to preserve for her a daily life without meaning or happiness and which she, with some justification, regards as insupportable.
39. Finally, and on a separate matter, in closing submissions Mr Stockwell raised an entirely new issue about whether proceedings of this kind adequately protect the Article 5 rights of a person in M's position at all. I could not detect anything of practical or legal substance in this argument, which has not been prefigured in the proceedings and was not developed further. Accordingly I do not take account of it.
40. Before parting from the case, I would add two things.
41. Firstly, my decision implies no criticism whatever of any of the witnesses from the local authority or by the CCG. I understand the position taken and the reasons for it; indeed it would be difficult for them to have taken a different view on the facts of the case. There are risks either way and it is perfectly appropriate that responsibility for the outcome should fall on the shoulders of the court and not on the shoulders of the parties.
42. Secondly, I have already noted the visit made by the District Judge to M in the care home about a month before this hearing. A careful written record was made and placed with the papers. The visit has therefore had the dual purpose of informing the court of M's views and of making M feel connected to the proceedings without putting her into the stressful position of having to come to court in person. I commend this as an approach that may be of value in other cases of this kind.
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