A London Local Authority v JH & Anor

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

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

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 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.

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.” (Footnote: ¹) It does not matter whether the impairment or disturbance is permanent or temporary. (Footnote: ²)

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

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). (Footnote: 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. (Footnote: 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. (Footnote: 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:

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. (Footnote: 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.” (Footnote: 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. (Footnote: 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:

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). (Footnote: 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:

According to paragraph 32 of the Decision Support Tool: (Footnote: ¹¹)

According to paragraph 33,

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. (Footnote: 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

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.

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

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

When each block of hours will be provided

Number of carers during each block of hours

Frequency of visits by District Nurses

GP registration

Provision of equipment (OT assessment, armchair, sling)

Hoisting

Access by professionals

Alert systems (such as Linkline, telecare, mobile)

Carer’s assessment

Mr H’s health needs

Mrs H’s social isolation

8 — THE POSITION TODAY

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

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. (Footnote: 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

10 — MR H’s CASE

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

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.”

Submissions

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

11 — THE OFFICIAL SOLICITOR’S CASE

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

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:

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: (Footnote: 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:

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), (Footnote: ¹⁷)

Significance of the family and family care

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, (Footnote: ¹⁹) which I agree are of considerable relevance and assistance in this case:

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.

A balance-sheet approach

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:

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:

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:

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. (Footnote: 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:

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. (Footnote: 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, (Footnote: 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. (Footnote: 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. (Footnote: 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:

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. (Footnote: 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, (Footnote: 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:

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

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. (Footnote: 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.” (Footnote: 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. (Footnote: 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 Hare 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

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:

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.

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?

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. (Footnote: 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

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.

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

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.