A v A Local Authority & Ors

What follow are the reasons for the directions which I gave in this case on 16 March 2011. A suitably anonymised copy of the order which I made is attached to this judgment.

The Applicant (A), who is represented by the Official Solicitor, has applied to the Court of Protection pursuant to section 21A of the Mental Capacity Act 2005 (the Act) to vary the terms of a standard authorisation approved by the first respondent, the supervisory body (the local authority) on 30 September 2010, which is due to expire on 15 September 2011 and which authorises A’s deprivation of liberty at a named Nursing Home (the Nursing Home). The second respondent is the care manager of the Nursing Home. The third respondent (S) is one of A’s adult sons.

A was born on 25 June 1925 and is 85 years old. He has been diagnosed as suffering from dementia, and from memory and cognitive impairment. In December 2009 he was admitted to hospital under section 2 of the Mental Health Act 1983. He was discharged home on 11 January 2010, only to be readmitted to the same hospital following an incident on 17 January 2010. Following a best interests meeting, A was discharged from the hospital on 9 June 2010 and placed at the Nursing Home. The Nursing Home was chosen by S and is what is known as an Elderly Mentally Infirm (EMI) home. An urgent authorisation was requested and approved on 30 June 2010. A standard authorisation was then applied for and approved on 6 July 2010. The authorisation was then reviewed and approved on 30 September 2010.

A objected to this continued deprivation of his liberty and his objection was passed to the Relevant Person’s Representative (RPR), who, at that point, was S. However, S did not support A in exercising his right to challenge the authorisation, with the result that a different RPR was appointed. After a further review of the standard authorisation to which reference has already been made it was approved on 5 January 2011, and these proceedings followed.

The position of the Official Solicitor was that, at this stage, it was appropriate to make only interim declarations in relation to A’s capacity to litigate and to decide where he should live, and that these matters should be the subject of further, independent assessment. Through counsel, he pointed to the fact that the last capacity assessment undertaken by a psychiatrist in December 2010 noted that A was able to retain the information that he could understand and was able to retain the information for a sufficient duration for him to try and weigh it up. A was, moreover, able to communicate his views and so passed that element of the second part of the test under the Act.

Counsel also pointed to the observations of A’s Independent Mental Capacity Advocate, who in a letter dated 15 October 2010 had recorded A himself as questioning his own lack of capacity and as disputing that the current arrangements in their entirety were in his best interests.

Very fairly, counsel acknowledged that a Court of Protection 3 Assessment of A’s capacity dated 3 February 2011 had concluded that he lacked capacity in relation to where he should live, and that in an interview with a representative of the solicitors retained by the Official Solicitor on 24 February 2011, A had been unable or unwilling to discuss his application and appeared to have difficulty understanding what was being discussed with him.

The Official Solicitor submitted that pursuant to his duty to represent A’s interests in the proceedings there should be a further, up to date and independent assessment of A’s capacity. He referred me to paragraph 101 of the judgment of Charles J in GJ v The Foundation Trust and others [2009] EWHC 2972 (COP) in which the judge had held (inter alia) that the court should focus on the position when the case was before it rather than the position when the standard authorisation was granted.

The Official Solicitor also took the view that the question of A’s best interests should also be investigated and made the subject of an up to date independent report.

At the same time, the Official Solicitor was anxious to approach the proceedings in a proportionate manner. His proposal, accordingly, was that the court should direct a Court of Protection Visitor to produce a report relating to both capacity and best interests under section 49 of the Act. Should the outcome of the report be that A lacked capacity and that the maintenance of the challenge was unwarranted, and if the parties agreed, the matter could be disposed of by way of a written consent order, subject to the approval of the court. However, should the outcome of the report raise questions regarding the appropriateness of the standard authorisation, a further directions hearing would be necessary.

For the local authority, counsel argued that there was adequate evidence before the court on which I could properly conclude that A lacked capacity in the material respects, and that it was in his best interests to remain living in the Nursing Home. As to capacity, counsel relied on the authorisations and the reviews, and submitted that the medical evidence was sufficiently recent to enable the court to be satisfied that it reflected A’s current lack of capacity. At best it could be said that A had a fluctuating capacity, although even that was unlikely.

As to best interests counsel made a number of points, including references to the evidence of self neglect and the risk of harm to A consequent upon his tendency to wander on his own.

The local authority received considerable support from S, who appeared in person, and from whom I took oral evidence. S saw his father regularly, and frequently took him out. He was a patently honest witness, and I had no difficulty in accepting the good faith of his evidence which, in summary was to the effect that his father both lacked capacity, and was in the best possible place. The deprivation of A’s liberty, S thought, was a “red herring”. A disliked the Nursing Home, but he would dislike wherever he was. He could not live at home – it would not be safe either for him or for any carer.

I did not find it easy to adjudicate on the Official Solicitor’s submissions, particularly in the light of the evidence from S which was, as I say, both clear and realistic. As I said during the course of argument, had this been a family case in which the outcome depended upon the court’s discretion to act in the best interests of a child, I think I would have taken the short cut and brought the proceedings to a summary conclusion: - see Re B (minors) (application for contact) [1994] 2 FLR 1.

However, I am very conscious that the Act has laid down stringent conditions for the deprivation of liberty, and that the court cannot simply act as a rubber stamp, however beneficial the arrangements may appear to be for the individual concerned. In the instant case, A wishes to challenge the authorisation, which deprives him of his liberty. Parliament has decreed that he should be entitled to do so, and has created safeguards to protect those deprived of their liberty against arbitrary action.

In these circumstances, I came to the clear view that the submissions of the Official Solicitor were to be preferred, and that he must be allowed to carry out his duty of representing A in the proceedings as he thought fit. Whilst the present case has every appearance of being a true bill, I am very conscious that the next case may look different, and that safeguards need to be in place to ensure that the provisions of the Act are not abused. The Official Solicitor has a duty to represent A and people in A’s position, and he must be allowed to fulfil that duty.

At the same time, I am acutely conscious of the overriding objective, and thus find myself in agreement that the best way forward is; (1) via a report from the Court of Protection Visitor on both capacity and best interests; and (2) that if, as anticipated, the outcome is agreement between the parties that A both lacks the capacity to decide where he should live and how he should be cared for and that a continued deprivation of his liberty at the Nursing Home is in his best interests, then the case can properly be dealt with by way of a written consent order, which I can deal with on paper without the need for a further attendance.

In these circumstances it seem to me entirely appropriate to direct that the report from the Court of Protection Visitor should be funded by the Court of Protection. The absence of a further hearing (if that proves to be the result) will also save the local authority the costs of a second appearance.