England and Wales Court of Protection Decisions

Background

CB has significant risk associated with her dementia including self-neglect, malnutrition, dehydration, non- compliance with treatment, wandering, falls. She requires prompts, supervision, support and assistance to mitigate these risks;

CB requires 24-hour care;

i)                     A request to the GP to provide information as to whether oramorph, a pain killer to assist with CB’s breathing difficulties, could be administered to CB at home;

ii)                   The Local Authority to provide written evidence setting out:

a) a best interests balancing exercise of the available options for CB’s long-term care, including:

·          A return to CB’s home (including consideration of physical adjustments to the property, details of care package e.g. live in carers and cost;

·          Remaining at the present nursing home;

·          An alternative care home providing 24-hour support (in Surrey) and

·          An assessment of less restricted less residential options, bearing in mind the duty to promote independent living skills.

iii)                 The Local Authority to set out its conclusions as to where CB should reside and from whom she should receive care.

“I am not prepared to adjourn tomorrow’s hearing. I would like the opportunity to hear from CM. I am not persuaded that a GP is the right person to provide the information required and consider that the way forward needs to be considered at the hearing”.

“18. Having considered the issue carefully, I am going to dismiss this application at this stage.  The Official Solicitor is saying that as part of a belt and braces exercise, the court ought to see if it is possible for CB to go home as she would like to and in that sense, it would be in her best interests.  It might be a less restrictive environment, although she would still have to be subject to restrictions on her liberty to prevent her wandering.

19. However, this is not the usual case which the court often sees where a return home with a live-in care package has not previously been tried and needs to be explored.  In this case, such a privately funded package has been tried.  If she returns home, there is a real risk the she will again not be properly cared for and will become aggressive or agitated, which carers will find very difficult to manage.

20. Although he was not asked to comment on the issue of best interests, Dr Ajiteru in his Section 49 report has provided helpful evidence contrasting care at home and care in a care home.  He says this: ‘One must take into consideration 24-hour care in CB’s own private residence compared with 24-hour care in a care setting.  The challenges of 24-hour care at home include issues around funding of such care, levels of expertise that will be available for CB for complex issues such as medication management and management of her behaviours such as confusion and wandering at night time.  On the one hand, 24-hour care in her own home may provide her with the opportunity to be in her own home/space, which contains her treasured memories’.  I would put in there, of course, that is important.  ‘However, experience’, and this is CM’s experience ‘has shown that this has been tried in the past and has failed for various reasons, resulting in a significant degree of risk to both CB and risk of carer stress and burnout.  The advantage of care in a 24-hour setting is that there is a range of skilled staff with the right expertise to mitigate risk of carer stress and burnout.  In addition, care in a 24-hour placement also provides CB with the opportunities for socialisation’.

21. He also deals with the stress that people with dementia experience in moving placement, and he says, ‘Based on her presentation, considering risks and benefits, considering her levels of insight, and considering the challenges of caring for her at home, she requires 24‑hour nursing specialist care in a care home appropriate to meet her needs’. 

22. All the evidence is that the care home is appropriate to meet her needs, and, indeed, CM says it is a very caring environment for her.  Therefore, while I hear what the official solicitor says , I do not think that it is proportionate to make this Local Authority spend the time and cost of going through a balancing exercise which will tell me what I already know in terms of the difficulties, risks and cost of a package of care at home. In my judgment, the evidence is already there to show that the risks of returning home outweigh the benefits to CB of such a return.  It is in CB’s best interests to remain where she is, properly looked after and safe.  (my emphasis)

23. Therefore, for those reasons, I consider that the deprivation of liberty is justified, and I will dismiss this application.”

“The judge made the following assertions: “I very much doubt this [a package of live-in care] will work, I am very sceptical”, “the practicalities are likely to be extremely difficult to organise” and “the chances of getting a team of experienced nursing carers consistently available are not good”. All of these statements are conjecture. There was no evidence before the court about the feasibility, practicality or changes of getting the right nurses. No party had contacted care agencies to obtain an assessment as to whether and how a live-in package would work, and how much it would cost. Those steps should happen as part of the local authority’s best interest’s assessment as envisaged in the draft consent order that had been filed with the court on 7 November 2018 prior to the hearing on 8 November.

By failing to allow the parties to gather further evidence about the feasibility of a return home, the judge failed in her duty of “ensuring that P’s interests and position are properly considered” – per r.1.1(3)(b) COPR.

The Court of Protection Rules (COPR) identify the ‘overriding objective’ as “enabling the court to deal with a case justly and at proportionate cost”

(r. 1.1(1) COPR). The nature of the obligation is that the court “will seek to give effect” to the overriding objective when it exercises any power under the COPR or interprets any rule of practice direction (r. 1.1.(2) COPR).

Dealing with a case justly and at proportionate cost includes - per r.1.1(2) :

a.        Ensuring that it is dealt with expeditiously and fairly;

b.       Ensuring that P’s interests and position are properly considered;

c.        Dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;

d.       Ensuring the parties are on an equal footing;

e.        Saving expense;

f.        Allotting to it an appropriate share of the court’s resources, while taking account of the need to allot resources to other cases; and

g.       Enforcing compliance with rules, practice directions and orders.

Exercise of powers on the court’s own initiative

(2) The court may make an order on its own initiative without hearing the parties or giving them the opportunity to make representations.

(3) Where the court proposes to make an order on its own initiative it may give the parties and any other person it thinks fit an opportunity to make representations and, where it does so, must specify the time by which, and the manner in which, the representations must be made.

(4) Where the court proposes (a) to make an order on its own initiative; and (b) to hold a hearing to decide whether to make the order, it must give the parties and may give any person it thinks likely to be affected by the order at least 3 days’ notice of the hearing

“28. But such summary power is, in my judgment, to be exercised appropriately and with a modicum of restraint. The power to make an order of the court's own initiative without hearing the parties or giving them an opportunity to make representations does not extend as was done here to engagement in that procedure at the outset of a hearing in which the parties were in attendance all the more so in expectation of procedural and no other steps. It is plainly a power to be exercised as an alternative to a hearing and in the proper case such as an emergency or where there is little or no apparent contest anticipated to the exercise of the court's powers. It is not likely to be an appropriate power to be exercised where the outcome is a deprivation of liberty in circumstances where there is a serious issue or potential issue whether that is appropriate and so where Arts 5 and 6 are potentially both engaged.”

“29. Ms Butler-Cole submits that a summary determination of best interests must be made by reference to evidence and on considering the relevant circumstances as provided by s 4(2) of the Act and, of course, the checklist provided by the remainder of the section. There is, she says, nothing to indicate that this exercise was fully performed. I agree. I would suggest that serves to emphasise that the summary determination route is appropriate for a plain case and not where real questions are likely to be raised as to the appropriate mode of management and disposal.”