This judgment is being handed down in private. It consists of 36 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
IN THE MATTER OF THE MENTAL CAPACITY 2005
Royal Courts of Justice
Strand, London, WC2A 2LL
Before:
DISTRICT JUDGE ELDERGILL
Between:
HT | Applicant |
- and - | |
CK (by her litigation friend the Official Solicitor) -and- ALA | 1st Respondent 2nd Respondent |
Mr Stephen Cottle (retained by the Bar Pro Bono Unit) for the Applicant
Ms Kate Markus (instructed by Irwin Mitchell LLP) for the 1st Respondent
Mr Ranjit Bhose QC (instructed by the local authority) for the 2nd Respondent
Hearing dates: 19th and 20th July 2012
Judgment
District Judge Eldergill:
§1 — INTRODUCTION
This decision deals with residence, contact and financial arrangements for CK (‘C’ or ‘Ms K’). In particular, the court must decide whether it is in her best interests to remain where she is living and the appropriate contact arrangements.
The decision is structured under the following headings:
Introduction | §1 |
Background to the Application | §2 |
The Originating Application | §3 |
The Parties to the Proceedings | §4 |
The Proceedings to Date | §5 |
C’s Mental Capacity | §6 |
Independent Social Work Report | §7 |
The Final Hearing | §8 |
Mrs T’s case | §9 |
The Local Authority’s Case | §10 |
The Official Solicitor’s Case | §11 |
Mental Capacity Act Provisions | §12 |
C’s Best Interests | §13 |
Order and Directions | §14 |
§2 — BACKGROUND TO THE APPLICATION
Ms K was born in 1952 and is now 60 years old. She has Down’s syndrome. Her learning disability is severe and is associated with receptive and expressive communication difficulties. She knows and repeats certain words to indicate her wishes, such as ‘shopping’, ‘not shopping’, ‘bowling’, ‘not bowling’, ‘coffee’, ‘pretty, pretty’. She will sit on her hands if she does not want to do something and look away. If she is unsure what she wants to do, she tugs her sleeves down over her hands. Her IQ was once assessed as being 30.
From her birth until December 1991, C lived in her family home. She was cared for by her parents and then by her mother alone during her final years there. Her mother passed away in 1995.
In December 1991, with her mother no longer able to meet her needs, C moved to StMC. It is recorded that her sister, Mrs T, made the decision to place her there.
Between 1991 and 1994, there was a significant deterioration in C’s well-being. Various assessments were completed and it was concluded that the placement was inappropriate.
In October 1996, C moved to a different residential placement, AH.
In 2001, Mrs T requested that C be placed nearer her family, in order to facilitate contact. Mrs T had identified LH, which would also provide her sister with the benefits of a ‘more active peer group’. C moved there in October 2001.
There were a number of problems at LH. Allegations of verbal abuse and poor care led to two members of staff being dismissed. The Care Standards Commission was concerned that Mrs T was recording conversations. It was reported that Mrs T has been visiting the home at odd times; also that she had visited all of the group’s homes in order to obtain a director’s home telephone number. The director thought that Mrs T seemed unwilling to work with him and the other agencies, ‘instead seeking to dictate to all professional parties involved.’ Some staff felt intimidated by her. The outcome was that LH gave C notice.
Following a social care assessment, a placement was identified for C on the south coast. Mrs T refused to agree to this and proposed that her sister be placed at AH2. The care manager was concerned that it might be unsuitable the other service users were significantly more able. However, C commenced living there in October 2003.
In August 2008, Mrs T expressed concerns about her sister’s care and recommended a move to C Care Home. A move took place on 8 August and C has lived there ever since. According to a note, AH2 advised the out-of-hours emergency service that Mrs T had removed C’s belongings from AH2:
‘Mrs T has apparently found another home for C and has informed staff that C will not be returning. C’s new destination is not known. C has apparently not seen the home and staff are concerned as to [her] welfare.’
In September 2008, there were concerns that Mrs T was calling C Care Home at 2am and disturbing residents; that she ‘bullied’ staff; and that she was ‘intervening inappropriately, i.e. cancelling hospital appointments for C and a social care review.’
In July 2009, Mr and Mrs T moved to their present home, some 65 miles from C Care Home, in order to be near their daughters.
Mrs T indicated that she would like C to be considered for HL, a placement near her new home. C was taken on a visit but refused to enter the home. According to the IMCA, C was happy and settled at C Care Home. She was demonstrating by her actions that she did not wish to move there. She had also ‘demonstrated reluctance in the past 6 months to go out with her family.’
Ms T continued to raise concerns about C Care Home. A GP supported a move to HL on the grounds that it would provide ‘greater stimulation, a more able peer group and greater geographical proximity to her close relatives.’ However, subsequently, the GP stated that he had limited knowledge of C and was unable to comment on her communication skills ‘due to lack of familiarity with her case.’
In September 2009, Mrs T complained to the Care Quality Commission (CQC) about the care home’s management of her sister’s catheter and an alleged lack of access to day activities. Mrs T requested that an alternative placement be identified.
In December 2009, a best interests meeting was convened in response to Mrs T’s request that C be placed much closer to Mrs T’s home. The outcome was that, ‘It was agreed by all professionals involved that it was in C’s best interests to remain at C Care Home.’
In April 2010, Mrs T was advised to consider making an application to the Court of Protection if the differences concerning her sister’s place of residence could not be reconciled.
The local authority formally reviewed Ms K’s case and circumstances on 4 August 2010. The outcome was that her residence at C Care Home was appropriate and met her needs.
In October 2010, the local authority advised Mrs T that it intended to make an application to the Court of Protection.
In the event, Mrs T applied to the Court of Protection first, on 5 November 2010.
About C Care Home
C Care Home is a two story building on a residential road. It is separated into three apartments, each with a kitchen, lounge/dining area and bathroom facilities. There is a patio area with a barbeque and gazebo. A large wooden hut in the garden serves as the ‘activity’ space. The only entrance to the home is at the back of the building through a gate into the garden, which leads to entrances to the three wings.
Ms K’s bedroom is on the ground floor. It has a single bed, chest of drawers, cupboard, sink, mirror and bubble machine. On her bedside table there is a large framed photograph of Mrs T and her family.
Each resident has a day in the week when they develop their home skills, for example vacuuming, washing clothes or baking. For the rest of the week the residents are engaged in activities in or outside the home, for example music sessions with a visiting therapist, arts and crafts or walks around the village. Barbeques are arranged and C enjoys sitting outside when the weather is nice. She walks around the home as she pleases and often goes into the other apartments to see her friends.
A yearly review report details her needs, medical appointments, medication, physical care, diet, bathing, interpersonal and social skills, relationship with peers and staff, family contact, social contacts, leisure/social programme and use of community facilities. It also assesses her self-help skills and any significant changes since her last review.
Mrs T and her family would like to have C living closer to them. The journey times to C Care Home are an issue for them and restrict their ability to give time to C.
The total number of recorded visits made by Mr and Mrs T to Ms K at C Care Home amounted to 47 days in 2010, 40 days in 2011 and 16 days so far in 2012. Mrs T has made seven short visits to C Care Home in 2012.
In Mrs T’s opinion, C Care Home is ‘inappropriate and unsuitable.’ Specifically, the peer group there are largely wheelchair bound, unlike Ms K; they are unable to interact with her because of their ‘lack of capacity’; and there is a ‘lack of facilitation for Ms K to maintain full and active contact with her family each weekend at the family home as she always has done.’
§3 — THE ORIGINATING APPLICATION
In her application, Mrs T sought:
An order appointing her as her sister’s personal welfare deputy and property and affairs deputy;
An interim order that her sister ‘be relocated to a suitable placement within a 20 mile radius of Mrs T’s home … within three months of the date of this Order.’
§4 — THE PARTIES TO THE PROCEEDINGS
The parties to these proceedings are as follows:
HT (“Mrs T”) | Applicant | Sister of CK, the person concerned (“P”) |
CK (“C” or “Ms K”) | First Respondent | The person concerned (“P”), by her litigation friend, The Official Solicitor |
ALA (“the local authority”) | Second Respondent | The relevant local authority for the person concerned (“P”). |
About C’s family
Mr and Mrs T are both teachers by profession. Mr T took early retirement and has an occupational pension. Mrs T does occasional 1:1 tutoring.
Mrs T’s daughters (C’s nieces) live in the same area as Mrs T. They have their own relationship with their aunt and they support their mother’s application for C to move closer to them all.
About the professionals
The professionals who have been involved in providing care and treatment to C include JD, an experienced social worker employed by the local authority, and SS, the manager of C Care Home.
About the Independent Expert
An Independent Social Worker (ISW), Mr P, was instructed within the proceedings and he made a number of recommendations in respect of C’s residence and family contact.
§5 — THE PROCEEDINGS TO DATE
On 3 December 2010, a district judge refused Mrs T permission to apply for a personal welfare order in respect of her sister.
On 7 December 2010, the court issued her application, limited to the property and affairs part of it.
On 17 January 2011, the local authority filed an acknowledgement of service, proposing that the court make the following alternative orders:
That the local authority be appointed deputy to oversee all matters in relation to Ms K’s personal welfare including decisions concerning where she lives, her care and the contact arrangements with her family; or
That the court determines that it is in her best interests to remain at C Care Home in the care of the local authority, and for contact arrangements with Mr and Mrs T to be agreed and overseen by the local authority.
The local authority filed a further acknowledgement of service, dated 17 February 2011, in which it opposed any alteration to the management of Ms K’s finances and opposed Mrs T’s application to be appointed as her sister’s deputy for property and affairs.
On 28 February 2011, the file was passed to me. I made an order recording that there was sufficient evidence to justify a reasonable belief that Ms K may lack the capacity to litigate and make the relevant decisions, and that it was in her ‘best interests that the court should determine the unresolved issues concerning her residence, contact and care.’ Ms K was joined as a party to the proceedings and the Official Solicitor was invited to act as her litigation friend. Directions were given as to the filing of position statements and evidence, and the matter was listed for a directions hearing on 18 March 2011.
In the event, the directions hearing was adjourned to 12 May 2011 following an application by Mrs T, on the grounds that she had not received copies of all documents filed by the local authority.
In its position statement for the hearing on 12 May 2012, the local authority indicated that it did not intend to pursue its application for welfare deputyship. The court declared in the interim that it was in Ms K’s best interests to continue to reside at C Care Home. Mrs T was required to provide the other parties with details of her proposed alternative placement. The local authority was then to file and serve evidence addressing Mrs T’s concerns about the suitability of C Care Home, the suitability of Mrs T’s proposed alternative, and its proposals for contact (including any assistance available to Ms K to visit her family). The order recorded Mrs T’s agreement to telephone C Care Home Care Home on the day before a visit by her or her husband and to inform the home of the time of the visit.
The court ordered that a round table discussion take place followed by a further directions hearing on 12 October 2011.
The local authority did not consider that the home proposed by Mrs T was suitable because it provided care only at the most basic level. An alternative placement would be required if the court decided that a move nearer to Mrs T’s home was in her sister’s best interests.
A round table meeting took place on 31 August 2011. However, the parties did not alter their positions.
The local authority agreed to provide more information about the range and level of residents’ disabilities at C Care Home. It offered to fund two initial visits for Ms K to go to her sister’s home by taxi with a 1:1 carer and, if the visits were a success, to look at funding further visits.
Mrs T refused this offer, stating that ‘such visits cannot address Ms K’s best interests.’ She reiterated her view that Ms K should move to a home near to Mrs T so as to allow her to have ‘weekly participation in family life.’
At court on 12 October 2011, the Official Solicitor and the local authority applied for permission for the parties to jointly instruct an independent social work expert to report on Ms K’s best interests. Mrs T proposed that the parties instruct separate experts.
The court granted permission for a joint expert report and the matter was listed for a final hearing on 7 February 2012.
The local authority agreed to provide Mrs T with a list of possible placements in her area to assist her with her search; and she was given permission to nominate a further alternative placement in advance of the expert being instructed.
The final hearing was subsequently adjourned following an application by Mrs T, who had obtained legal advice from the Bar Pro-Bono Unit shortly before the hearing. It was relisted for 19 and 20 July 2012.
§6 — C’s MENTAL CAPACITY
Section 1 provides that a person must be assumed to have capacity unless it is established that s/he lacks capacity. Any ‘question whether a person lacks capacity … must be decided on the balance of probabilities.’ (Footnote: 1)
A person is not to be treated as unable to make the decision in question:
unless all practicable steps to help her/him to do so have been taken without success;
merely because s/he makes an unwise decision.
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: 2) It does not matter whether the impairment or disturbance is permanent or temporary. (Footnote: 3)
For these purposes, a person is unable to make a decision for him/herself if s/he is unable:
to understand the information relevant to the decision,
to retain that information,
to use or weigh that information as part of the process of making the decision, or
to communicate their decision (whether by talking, using sign language or any other means). (Footnote: 4)
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: 5)
A person is not to be regarded as unable to understand the information relevant to a decision if s/he is able to understand an explanation of it given to them in a way that is appropriate to their circumstances (using simple language, visual aids or any other means). (Footnote: 6)
The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent them from being regarded as able to make the decision. (Footnote: 7)
C’s capacity
There is no dispute as to C’s lack of capacity. A capacity assessment dated 4 November 2010, undertaken by a social worker in the community learning disability team, concluded that C ‘does not have capacity to make decisions about future planning for a move and to sustain a relationship with/have decisions about her wellbeing made by her sister Mrs T.’
The assessment noted that, as a result of her severe learning disability, she was unable to retain, use or weigh relevant information while considering the decision, and was unable to communicate her decision by any means. Furthermore, ‘there will not be any change in her cognitive functioning that will enable her to make this decision at a later date.’
The parties agreed that the evidence supported a final declaration that Ms K does not have capacity to litigate or to make decisions relating to her property, affairs, residence, care and contact with Mrs T.
§7 — INDEPENDENT SOCIAL WORK REPORT
An independent social work expert, Mr P, was instructed on 3 November 2011 to report on Ms K’s residence, her contact with Mrs T, and the management of her property and affairs.
More specifically, he was instructed to give his opinion as to whether it was in her best interests to continue to live at C Care Home or to move to either of the homes proposed by Mrs T. He was also asked to consider whether Ms K’s current care plan met her needs and whether the existing contact arrangements, which did not restrict contact with Mrs T, were in Ms K’s best interests.
Mr P reported on 29 December 2011, and provided responses to supplementary questions on 16 January and 16 July 2012.
C’s Residence
In his report of 29 December, Mr P concluded that, in his opinion:
‘Having taken into account the three residential providers outlined above (the providers proposed by Mrs T and C Care Home), it is my view that it is in CK’s best interest to remain living at C Care Home. My assessment has been based upon the current care plan, activities and opportunities within the local community and the wider area that is provided by staff at C Care Home.’
Mr P referred to Mrs T’s view that her sister should move closer to Mrs T and her family because ‘contact and exposure to family life provides her with stimulation and enhances her quality of life.’ The alternative view, expressed to him by the manager of C Care Home, was that Ms K ‘has little motivation to either engage during visits with Mrs T or her husband or to happily leave C Care Home to visit her family.’
In Mr P’s opinion, Ms K’s negative response to her sister’s visits had been ‘consistent and sustained.’
Mr P acknowledged the importance of family relationships. However, the balance involved weighing Ms K’s ‘stable, consistent and high quality of care and support’ against the possible benefits of ‘moving to another residential service to reduce the travel time and distance to facilitate family visits.’ He was concerned about Mrs T’s ability to consider Ms K’s best interests and by historical reports of her behaviour towards Ms K and those caring for her:
‘Having visited the residential homes mentioned previously and spoken to relevant managers and met CK, it is my assessment that she has settled very well into C Care Home. She has developed and maintained relationships with staff and other residents and benefits from a high level of care and support. This provides her with a broad range of social interaction within her local community and further afield. On balance, it is my view that it is CK’s best interest to remain at C Care Home as to move her will potentially undermine the stability and the progress that she has made to-date. While other service providers may be able to provide a similar service level as well as opportunities for CK that are broadly similar it is my view that this represents a risk of disruption and allied distress and anxiety that is not outweighed by possible advantages.’
Mr P then referred to the shortened life expectancy of people with Down’s syndrome and the ‘high risk of the rapid development of further medical complications.’ A move raised ‘the potential risk of [her] losing current medical personnel who have a working relationship and knowledge of [her].’
Care
Mr P concluded that the care plans in place at C Care Home ‘reach beyond simply meeting CK’s needs.’ The current care plans ‘appear to view care and support both holistically and evolutionary, moving at a pace appropriate to CK’s learning ability and also supporting her to identify and try and meet her own needs.’ That being so, he did not recommend any change to the current care plan.
Contact
In relation to contact, Mr P’s opinion was that ‘the current contact arrangements are too fluid and vague for CK to enjoy any meaningful time together with Mrs T.’ There ‘has been a consistent expression in presenting agitation and anxious behaviours (during contact between Mrs T and Ms K) as well as a professional perception of increased confidence by CK to express her wishes.’ Visits by Mrs T and/or [Mr T] ‘are late in the afternoon or evening when CK would anticipate mealtimes or simply relaxing into the routine of the evening.’
Mr P recommended that ‘contact between CK, Mrs T and her husband needs to be time limited [and] purposeful – in terms of visitors engaging in an activity within the home – under some meaning for CK, such as undertaking a craft or games activity together.’
A ‘gradual and specific timetable [should] be established in order to support CK to build up trust as well as a routine of visits.’ In view of this, he proposed the following contact structure:
Visits to be limited to 45 minutes each.
Visits to be in the activity centre of C Care Home in a screened off area or within Ms K’s room.
Contact to include Mrs T and her husband together but not separate visits at different times of the day.
Visits to take place between 2 pm and 4 pm.
Visits to be at the same time on the same day each week.
Visits to be supported by one member of staff from C Care Home who is familiar with Ms K.
Visits to be recorded and records to be shared with the case manager at the local authority.
This structure should remain in place for three months, at which point all of the parties should consider whether it was in C’s best interests to extend contact beyond C Care Home.
Mr P recommended that contact be kept under review. He hoped that the ‘relationship between CK and Mrs T can be further re-established to include visits to [Mrs T’s home area] and eventually a pattern of family visits that Mrs T suggests were the norm.’
A reciprocal arrangement might be possible which involved Mr and Mrs T collecting CK for a weekend family visit once a month and CK using some of her savings to be taken to see her family once a month.
In the event that Mrs T and/or her family were unable or unwilling to cooperate or engage with the proposed contact structure, Mr P suggested that Ms K could be supported to meet with Mrs T and other family members at a location approximately half way between C Care Home and Mrs T’s home.
Property and Affairs
Mr P’s opinion was that it would not be in Ms K’s best interest to make Mrs T her appointee.
In his view, ‘the staff at C Care Home and the local authority provide care and support that is in CK’s best interests.’ He could see ‘no reason to change the current arrangements.’
§8 — THE FINAL HEARING
The court was invited by the local authority and the Official Solicitor to make a ‘determination that it was in C’s best interests to remain in the care of the local authority placed at C Care Home and for contact arrangements with Mr and Mrs T to be agreed and overseen by the local authority.’
I am not sure what precisely is meant by ‘remain in the care of the local authority’ given that the local authority did not wish to pursue the option of being appointed as C’s personal welfare deputy.
Given the lack of an alternative, Mrs T accepted that the existing interim order would need to remain in force for now. She no longer sought an order that her sister immediately be placed elsewhere.
In relation to contact, the parties agreed the way forward subject to a relatively minor issue concerning paragraph 13 of the agreed contact schedule (‘contingencies’). This was whether Mr and Mrs T’s scheduled weekend visit between 2 and 5pm could take place on one of the following weekdays if they were unable to visit because of illness. It was a question that involved balancing flexibility with C’s need for contact to be predictable. My decision was that in such circumstances contact could be rearranged for the following day, i.e. take place on Sunday rather than Saturday or Monday rather than Sunday.
There were no complicated issues to determine concerning Ms K’s finances and the existing arrangements were working well. Mrs T accepted that the current appointee arrangement should continue while C lived at C Care Home. A deputy order was not required.
Mr P’s oral evidence at the final hearing
The two placements in Mrs T’s home area which Mr P had assessed were ‘not intrinsically unsuitable’. However, it was in Ms K’s best interests to remain at C Care Home even if a suitable placement was available near to Mrs T.
Mrs T had disputed the accuracy of some parts of Mr P’s report. In particular:
Paragraph 4.33 on page E/33, which recorded the view of the care home manager that Ms K ‘has little motivation to either engage during visits by her sister or her husband or to happily leave [C Care Home] to visit her family. Over time [her] response to visits and her interaction with her sister has developed ‘into a disinclination to engage … This is perhaps seen in CK’s turning her head away, sitting on her hands and becoming increasingly “vocal” in volume …’
Paragraph 4.35 on page E/34, which stated that Ms K’s response to Mr and Mrs T’s visits has ‘been consistent and sustained’. The majority of visit records referred to Ms K turning her head away, becoming anxious and agitated, being too unsettled to eat her meal, and the like. On one particular occasion, CK was reported to have shouted and exclaimed ‘no’ and ‘don’t like it’.
Paragraph 4.37 on page E/36, which stated that ‘CK’s relationship with A [another resident who had died recently] would appear to be a relationship of particular value to her.’
Paragraph 4.40 on page E/37, where Mr P stated, ‘I have reservations as to [Mrs T’s] level of understanding of CK’s needs and serious disability and her ability to understand and adapt to the various changes in her life … she disputes the assessment that CK has complex needs. She then goes on to say that “she certainly suffers from a severe learning disability … and has need for support with personal care, preparation of meals, supervision in the community.”’
Paragraph 4.41 on page E/37, where Mr P again questioned Mrs T’s level of understanding and/or ability to act in her sister’s best interests: ‘Further examples of this issue may be seen in [Mrs T’s] approach to CK’s best interests in relation to her medical care. In August 2008, [Mrs T] discharged CK from [hospital] … against medical advice, transporting her from hospital in her hospital gown and slippers in the process.’ Later on, she insisted that her sister be followed up at this hospital even though a much closer hospital could have provided suitable after-care without lengthy travel and discomfort for CK. ‘Recent history shows the likelihood that CK was accustomed to being told what to do and when. When she has been moved, she has experienced months of difficulties in adapting to the transition.’
Paragraph 4.42 on page E/38, where Mr P referred to 15 recorded incidents of CK being returned to C Care Home with her catheter bag over-full (‘On occasions it has been so full that it had over-flowed, soaking CK’s shoes, socks and trousers. On at least three occasions, the catheter bag had been so heavy that it has fallen from its recommended position.’); occasions when Mrs T phoned the Emergency Duty Team and/or police inappropriately; and inappropriate behaviour by her during a visit to the zoo.
Even if all of these disputed incidents were removed from the equation, in Mr P’s opinion it would still be in C’s best interests to remain at C Care Home, rather than to move closer to Mrs T. She might experience the same benefits at another placement. However, it was ‘full of ifs and buts … a gamble if you like.’
If a trial failed it would be ‘very destructive and distressing’ for C. That would be unfair and not in her best interests. There might be a risk that a place at C Care Home was no longer available.
Mr P told me that his opinion would be the same even if there was no history of C being moved to new care homes or of her experiencing difficulties adjusting. She benefited from the stability of C Care Home and from her day-to-day relationships with people there. She had had the same keyworker for four years.
Stability was a key element in any care plan for older persons with a learning disability. That applied to contact as well. It was easier for C to understand and cope with things that happened predictably, on schedule and when expected, rather than randomly from her perspective. She understood concrete situations and the current timeframe.
Her Christmas visit had been positive but more important was the quality of regular visits. Mr P would have no objection to contact progressing to monthly visits to her sister’s home; the only issue in that respect was how to achieve it.
Care home staff had acted appropriately by not taking C to the door or out to a waiting car if that was accorded with her wishes and feelings at the time.
It was likely that CK would find the process of a trial placement confusing.
§9 — MRS T’s CASE
Mrs T gave oral evidence.
She said that for 28 years her sister had been in the habit of visiting the family home every weekend.
C had been placed at AH for approximately 12 years, which was only 10 miles away at the time. Mrs T had been able to ‘take her regularly and frequently on outings and to the family home from which she has always derived great stimulation and enjoyment’ [E/6].
Likewise, when C moved to C Care Home, Mrs T was living around 25 miles away and would take her out regularly at the weekend.
Everyone accepted that the history demonstrated the family’s admirable commitment to C.
Ms K responded well to her nieces and was stimulated by the toddler in the household. She enjoyed being at Mrs T’s family home.
It was not C’s choice that these habitual arrangements should stop.
Mr P had contemplated fortnightly visits to Mrs T’s home, with the burden of transporting her there and back being shared by the family and service providers.
There was no reason why the familiarity of the present care home could not be re-established elsewhere. Her sister had the potential to settle and integrate at a new home.
Ms K’s anxiety needed a source. It was unlikely that she would experience stress in a new care home if it had a benevolent atmosphere and the staff were warm. C responded to ‘positivity,’ to people who took an interest in her and asked her questions. It would take only ‘a few days or a week’ for C to strike up a rapport with someone with the required approach.
Mrs T had given priority to group activities at C Care Home and arranged visits around them.
It was not feasible to take C to Mrs T’s home other than occasionally because this doubled the travelling distance. Mrs T would have to collect C, take her to Mrs T’s home area, drive her back to C Care Home, and then drive herself home.
The contact problems started in mid-2009. Until then, staff had accompanied C to the front door of the home when Mr and Mrs T visited, and she had gone on many local walks with them. In around June 2009, Mr and Mrs T were told by staff, ‘We can’t bring her to the front door anymore. We’ve been instructed not to bring her to the front door.’ Mr and Mrs T ‘were told to go into the bowels of the house’ to collect her. C was confused by this change of routine ‘and didn’t get up and go out with us’. That became the pattern.
Mrs T said that she could ‘pinpoint no other reason’ for the change. However, under cross-examination, she accepted that there had been occasions before June 2009 when C had not wanted to go out with them. That did not deflect from the fact that in general C thrived on contact with her family.
C did experience ‘short periods, lasting between a few minutes and several months’ during which she went ‘through various demeanours.’ However, there had also been many occasions when she had enjoyed their company and outings.
It was ‘not accepted’ that the visit on 7 February 2009 was the trigger for C’s change of behaviour and subsequent refusals to go out with Mr and Mrs T. C ‘was fine that day.’ She had been standing in a sunny corner and did not want to get straight into the car because there was snow on the ground. Mrs T had ensured that there was no ice. By the following weekend, C would not have had any recollection of the previous visit.
It was not the case that Ms K was now more confident and able to express her wishes about visits by Mr and Mrs T. ‘As long as she is in the right demeanour to start with, she enjoys my visits and our contact. There were many positive contacts during this period.’ Her sister had greatly enjoyed Christmas with the family.
Nor was it the case that Ms K’s routine of meeting them at the door changed because her wishes and feelings about visits had changed. The opposite was true; her behaviour changed because of the change in routine.
It was not correct that Ms K refused to enter HL because she understood or sensed that consideration was being given to a move there. That was jumping to conclusions. She ‘would not have recognised it as a place for people with learning disabilities’ and lacked the capacity to understand abstract concepts involving future residence. C did sometimes hesitate before entering a new environment, such as a shopping centre, and she did ‘not have an easy rapport with new places and faces.’
The travel costs to C Care Home were ‘pretty crippling’.
Mrs T drove, her husband does not. If he visited alone, he travelled by public transport at a cost of £15 return.
Mrs T was not aware of C forming any other close relationships since fellow resident A’s death.
Her sister was distressed by a resident’s ‘piercing screams’.
C was sometimes already distressed when Mr and Mrs T arrived. She was not distressed by their arrival. Sometimes she needed ‘a little time to adjust, just like anyone.’
It was not true that C was distressed by Mrs T’s visits but not by those from her daughters (C’s nieces).
The reason she had not taken up the local authority’s offer of funding for two visits by C to Mrs T’s home was because she was worried that accepting it might have a negative effect on her application. If the court’s decision went against her, she would not necessarily take up the offer (‘We would appeal’).
There had only been one, not 15, incidents of C being returned to C Care Home with an over-full catheter bag. The catheter care at the care home had been deficient. In May 2012, Mr T visited C. She did not seem very happy. As she got up, he could see that her skirt and the chair were soaked.
When her sister first used a catheter, there were occasions when everyone struggled to get accustomed to it. On occasions her sister had probably been sent out with an over-full bag.
Mrs T stood by her comments and corrections in C’s album, in which Mrs T had written on C’s behalf that, ‘The members of my peer group are in an ongoing vegetative cognitive state … it is hard to find any reaction in them’ [C/178].
The social worker, JD, was incorrect in claiming that the other service users all had similar IQs [C/224].
The descriptions of other residents [G/8] were inaccurate. It was not the case that there were no residents in a PVS [G/29] or that some residents were intellectually more able [G/29]. JD had got it wrong.
Mrs T wondered if the less-able residents were placed in a side-room when the home had visitors.
Likewise, it was not correct that on one occasion Mrs T said that she was going to buy C a wheelchair [C/99]. Her sister was fully mobile and had never needed one.
Submissions
On Mrs T’s behalf, counsel submitted that:
The lack of a suitable alternative placement backed by a favourable assessment meant that the court was not in a position to make an order that C be moved within 3 months, as originally sought.
The matter could not be assessed in a vacuum without an evaluation of a particular available alternative that was ready for C to move to. The evidence did not justify closing the door on the issue. The main issue should be timing. The balance might alter given a favourable assessment in respect of a suitable care home nearer to Mrs T.
Because there was only one possible residence for C today, the issue was not so much whether it was in her best interests to continue living at C Care Home but the basis for the conclusion. The judge’s reasons would dictate the parameters of any subsequent application to the court.
Whether the residence issue could be raised in future would depend on whether there was a material change in circumstances affecting the reasons for the court’s decision. It would be life-altering and disproportionate for C if she could never resume the pattern of weekend family association that endured from when she was 40 until she was 58.
It was in C’s best interests to live closer to her family. From 1987 until 2008, she had ‘returned to the family home at weekends.’ For ‘more than 20 years [she] spent a large part of each weekend with her sister and wider family. She derives great enjoyment and stimulation from the exposure, and it is therefore in her best interests for this to be facilitated through regular and frequent maintenance of such contact.’
Although Ms K had always ‘thrived upon’ contact with her family every weekend, the present distance between her and her family did not allow this. Mrs T had therefore sought an order that her sister move to a care home near to her family.
The distance which Mrs T had to travel to visit her sister was ‘not in the public interest.’ The journey times were ‘a real issue’ for Mr and Mrs T and detracted ‘from the whole experience for them and … their ability to give their time to C.’
Mr P only spent an hour with C. It had not been possible for him to see Mrs T except in the service station, nor therefore to witness her interaction with C and the joy she brought her.
The undeniable benefit of resuming the previous pattern of time at the family home each weekend was a significant material consideration. Substantial weight should be given to it.
Ms K’s best interests could not be met through contact at C Care Home. Furthermore, because family contact gave her ‘a high degree of pleasure and stimulation, thereby enhancing her quality of life, it was not in [her] best interests [for there to be] any reduction in such contact.’
The notion of progressing to fortnightly visits, instead of a move, involved too much travelling and was unsustainable.
A sustainable arrangement was one which recognised that C's best interests were served by living within a reasonable distance of her family.
Insofar as Ms K has been unwilling to leave the care home with Mrs T, the cause of the difficulties was that the care home had stopped accompanying her to the door when Mrs T arrived to take her out. This change of routine had had ‘the effect of causing confusion in Miss K’ (court bundle C300-C301).
The local authority should take the necessary steps to identify a suitable alternative placement closer to Mr and Mrs T and facilitate the necessary arrangements.
Having regard to Article 8, it was a legitimate and reasonable expectation that C be in a care home that facilitated her family life.
The same level of stability and service provision could be achieved elsewhere.
C would obtain the same level of medical care and monitoring were she to move area. If she remained at her present residence, the familiar individuals carrying out her blood tests and monitoring her catheter could well change in any case.
There was no appropriate medical evidence concerning ageing and susceptibility to dementia. For this reason alone, the evidence was incomplete and an adjournment would be warranted. Adjourning ‘actually reflect[ed] the justice of the case.’
The evidence did not support the contention that C experienced a set back or difficulties in adapting after previous moves or that, based on these experiences, it was now not in her best interests to (ever) move again.
Mr P had concluded that the possible advantages of a move were outweighed by the risk of disruption, distress and anxiety. This was not borne out by previous moves. C has coped well in the past and the move to C Care Home had worked out.
It was not correct that C’s reception to StMC after her mother’s death had had a ‘long and deep-seated impact’ on her, as Mr P asserted. He had adopted JD’s view and his experience of other cases, rather than C’s personal situation. It was impossible to know how C would adapt, and what personal relationships she would form, until a move had taken place and one could see.
The court could properly find that the perceived risks identified by Mr P were ‘outweighed by the significant and very substantial benefits to C of facilitating her family and private life.’
The court was invited to consider the possibility of a closer placement in the foreseeable future as being in C’s best interests.
Assessments by alternative care homes should be permitted, on such terms as the court deemed fit, with a view to facilitating a possible move in the future.
The court could properly decide what assessments should be obtained before deciding how much weight to give to the perceived risk that C would suffer distress and anxiety as a result of having to adapt.
The court should make primary findings in relation to the relevant facts, attach such weight as appropriate and carry out the required balancing exercise.
The Court did not have to determine all of the factual issues between the parties when assessing C’s best interests in relation to the residence issue.
The visit at Christmas showed the love and admirable dedication of C’s family and their commitment to her best interests.
A’s death had changed the weight to be given to the benefits of C Care Home.
In relation to contact, the court had been presented with an agreed order.
In relation to the management of C’s property and affairs, the current arrangements should continue whilst C remained at C Care Home.
Mrs T was concerned that C Care Home is not able to meet Ms K’s needs.
§10 — THE LOCAL AUTHORITY’S CASE
The local authority filed and served a number of statements made by professionals involved in providing care or treatment to C.
Evidence
JD gave oral evidence on behalf of the local authority. She is a social worker with many years experience of working with people with learning disabilities. She told me that:
C had become increasingly withdrawn at StMC and was referred for a psychiatric assessment.
She tended to retreat into herself following a move, while working out what was happening. This quietness could be followed by a period of unsettled or disturbed behaviour, as in the case of her moves to AH and LH.
The reduction in disturbed behaviour at C Care Home probably reflected the fact that she felt settled and secure. It might also be true that her behaviour had already become less problematic before she moved there.
The local authority had been willing to fund trips to Mrs T but the latter had not taken up the offer. The offer of two visits was still in place.
JD had passed on to Mrs T details of care homes in Mrs T’s area.
Half of people with C’s condition developed dementia. At present, there was no evidence of dementia in her case.
There were not many options for people with a learning disability who were frail and at risk of dementia. The chances of identifying a suitable placement in Mrs T’s home area were ‘very low’.
For financial reasons, some providers might suggest or say that a person was suitable for their home. It was better to rely on the local authority’s assessment.
You could never assess with certainty how a person would fit in at a new care home.
It could take between two and three years for care home staff to become familiar with a resident and for that person to feel truly comfortable.
C did not like new faces. When J visited her on behalf of the Official Solicitor, she did not make eye contact or respond to his questions, and shouted “no”. When her keyworker, M, then asked how she was, Ms K said ‘very well’ a number of times.
It was JD’s belief that C’s refusal to enter HL was because she recognised the situation as one where the purpose of the visit was to assess its suitability as a new home for her. She had been happy to go out that day. It was only on approaching the building that she refused to enter. Although Mrs T believed that this was attributing too much understanding to her sister, ‘I saw the look on her face’.
If Mrs T moved to a house close to C Care Home, so that it was unnecessary to explore care homes in Mrs T’s current area, JD would still recommend only 45 minutes contact per week.
Likewise, if a suitable place close to Mrs T’s current home had been available and Ms K was now residing there, JD would still only recommend 45 minutes contact per week at present.
If C moved to Mrs T’s area, the local authority would remain responsible for funding, supervising and supporting her placement. There would not be a dispute as to that.
Local Authority’s Submissions
In relation to residence, the local authority’s ‘clear assessment is that the balance firmly tips in favour of Ms K remaining [at C Care Home] where she is stable, receives a high level of care and appears to be very happy... any move for her now is considered to carry a substantial risk to her emotional and physical wellbeing’ (see witness statement of JD).
According to JD, Ms K had ‘clearly benefited from being in a high quality stable placement with the same key worker for the past four years... possible placements closer to (Mrs T’s) home have been fully considered and found not to be suitable.’
The number of times that C had moved (seven since she left her mother’s care) would have resulted in her frequently having to adapt to different services and staff. This would have been at best confusing and at times distressing.
C required consistency of care and was benefiting from having a period of stability at C Care Home. She should not be moved.
On a best interests’ assessment, the balance tipped in favour of her remaining at C Care Home, where she is stable, receives a high level of care and appears to be very happy.
Ms K had been taken to visit two alternative placements in 2009 but was not willing to enter them. Although she lacked capacity to make a range of decisions, including where to live, she had been able ‘to express her negative wishes and feelings when taken on two occasions to view a potential new placement.’
The vacancies at the two care homes proposed by Mrs T and considered by Mr P had been filled.
Staff at C Care Home continued to express concern about the quality of visits by Mr and Mrs T. C had indicated ‘that she is not willing to leave the home (C Care Home) in (Mr and Mrs T’s) company. Further she is described.....to at times display dissatisfaction or indeed a reluctance to have Mrs T visiting her’ (statement of GM).
It was in C’s best interests for contact to take place in accordance with Mr P’s recommendations. There should be ‘planned contacts around significant daytime activities so that they are not disturbed and an open, trustful and respectful dialogue between all concerned focused on Ms K’s needs.’
§11 — THE OFFICIAL SOLICITOR’S CASE
Counsel for the Official Solicitor made the following submissions:
Mrs T initially proposed that C should move to a placement within a 20 mile radius of Mrs T’s home. However, no such placement was available. Therefore, there could only be one answer to the question of whether it was in her best interests to continue to live at C Care Home. It was not open to the court to make a best interests determination on a speculative basis: See A Local Authority v PB and P [2011] EWHC 502 (COP) at [17] and [18].
There was then the issue of whether the local authority ought to be required to facilitate and cooperate with arrangements for assessing CK by such care homes as the court might direct. Should the court make a final declaration that it was in her best interests to reside at C Care Home? Or should it extend the present interim declaration as to residence —giving directions for the identification and assessment of possible alternative placements, with a view to making a final determination at a future hearing?
In the Official Solicitor’s submission, the court should make a final declaration that it was in C’s best interests to reside at C Care Home. Even if a suitable alternative near to Mrs T’s home existed, on the evidence it was clear that it would not be in her best interests to move.
The process of identifying and assessing alternative placements had already taken place.
There was no merit in deferring a final determination as to residence in order to enable further alternative placements to be identified and assessed. Mr P had favourably assessed the two alternative placements proposed by Mrs T but was of the opinion was that it was not in C’s best interests to move from her present home.
Given that alternative placements had been assessed, and evidence of the types of placement available in Mrs T’s home area had been filed, it was appropriate for the court to determine whether it was in C’s best interests to remain at C Care Home.
There were numerous benefits to C in living there, many of which had been summarised by Mr P in his third report of 16 July 2012, at 2.7.
The Official Solicitor placed significant weight on Mr P’s opinion that ‘CK has a strong and positive working relationship with her case manager and with the staff at C Care Home and she appears to have invested a degree of trust in those relationships’; that she is supported ‘to make appropriate and safe decisions’ and that she is provided with ‘a range of options that she might not otherwise have.’ It therefore appeared that Ms K was being supported to maximise her capacity at C Care Home, which was a significant factor in favour of her remaining there.
C did not respond well to moves [C/69] and there were considerable risks attached to a move, which Mr P had described in his reports. For example, there was a risk of disruption and allied distress; a risk of losing current medical personnel at a time when she was at high risk of medical complications; a loss of stability; a loss of the benefits associated with C Care Home; likely confusion. A move carried ‘significant emotional and physical risks with potential long term health implications.’
Although a move would reduce the distance between C and her family, so that more frequent contact could take place, Mr P’s opinion was that the detriment of moving outweighed this factor. The Official Solicitor accepted his opinion.
C was very clear about what she wanted and what she did not want. Her ability to indicate her preferences had developed at C Care Home. If she decided not to go somewhere, she didn’t go. When taken to visit alternative placements, she had shown quite clearly by her behaviour that she did not wish to move.
Although regular contact between C and her family was important, the evidence of her wishes and feelings indicated that she was at best ambivalent about visits by Mrs T and her husband. This affected the weight to be given to family contact. Mr P’s opinion was no more than that, if his recommendations were followed, ‘it may be possible’ for C and Mrs T to establish a pattern of family visits which the latter suggested were once the norm.
The main benefit of Ms K moving closer to her sister was said to that she would then be able to have more frequent contact with Mrs T and her family. However, the evidence of Ms K’s views and wishes seemed to be that since 2009 she had been reluctant to engage in contact with Mrs T and her husband on a consistent basis. She had also shown a reluctance to view alternative placements.
According to the manager of C Care Home, Mrs T’s visits once took place regularly, then from time to time and now not very often. C now expresses a lack of interest and dissatisfaction when her family arrives. Sometimes she is happy to see family initially but then gets louder and louder, reverts to sitting on her hands, looks away and becomes withdrawn. Sometimes she screams by the end of a visit from Mrs T.
An issue about C’s property and affairs would only arise if she moves in the future. It would, however, be useful to make final the interim declaration concerning her lack of capacity to manage her property and affairs.
Mrs T’s criticisms of C Care Home were not adequately supported by evidence; indeed, there was substantial evidence to the contrary.
As to Article 8 of the European Convention on Human Rights, it was in C’s best interests to remain at C Care Home regardless of the nature and availability of alternatives. The distance from Mrs T’s home did interfere with the family rights of C and her family in making regular visits more difficult. However, such interference:
was necessary in order to protect her against the disadvantages and risks of moving;
had to be balanced against the interference with her rights to a private life involved in moving her against her wishes from her present placement and with the consequential disruption to her existing relationships;
was proportionate, taking account of the potentially grave consequences of moving C, the fact that Mr and Mrs T and their children were able to visit her at the care home, and the measures proposed by the local authority to mitigate the interference (improved contact arrangements with the possibility of regular visits to Mrs T’s home).
In the light of the foregoing, the Official Solicitor invited the court to make a final declaration that it was in Ms K’s best interests to continue to reside at C Care Home.
With regard to contact, Mr P’s proposals were constructive and in C’s best interests. The evidence supported his conclusion that there was a need for carefully regulated and structured contact with the aim of improving the experience both for C and her family. In the long term, if contact at C Care Home progressed successfully, monthly overnight weekend contact at Mrs T’s family home would be possible.
The local authority had offered to facilitate and support visits by Ms K to Mrs T and her extended family. If Ms K remained at C Care Home, the Official Solicitor hoped that Mrs T would accept the offer. Her sister would then have the benefits of family contact and her stable placement at C Care Home. If the contact recommendations of Mr P were implemented, the quality of contact between Mr and Mrs T and Ms K could be improved.
Mrs T had not identified what findings of fact she sought.
In his third report, Mr P stated that, even if the matters identified in paragraphs 4.33, 4.35-4.38, 4.40-4.42 were ignored, he still maintained his opinion as to C’s best interests. In the light of that, the factual content of those paragraphs plainly carried less weight than they would have done if they made a difference to his conclusions.
If the court was in any doubt as to Mr P’s opinion and recommendations, the factual content of those paragraphs added weight to the position advanced by the Official Solicitor and local authority. C’s response to visits by Mr and Mrs T were relevant to the weight to be afforded to enabling more regular visits and to the conclusions reached by Mr P as to contact (paras. 4.33 and 4.35). The references to previous difficulties adapting to change were relevant, and Mrs T had not submitted evidence to the contrary (para. 4.38).
§12 — MENTAL CAPACITY ACT PROVISIONS
The statutory provisions are well-known to the parties.
In brief, section 1 provides that a person must be assumed to have capacity unless it is established that she lacks capacity; a person is not be treated as unable to make a decision unless all practicable steps to help her to do so have been taken without success; a person is not to be treated as unable to make a decision merely because she makes an unwise decision; an act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in her best interests; and before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.
Best interests and section 4
Guidance as to how to determine P’s best interests is set out in Section 4 of the Mental Capacity Act 2005:
Section 4Best interests
In determining for the purposes of this Act what is in a person's best interests, the person making the determination must not make it merely on the basis of—
the person's age or appearance, or
a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.
The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.
He must consider—
whether it is likely that the person will at some time have capacity in relation to the matter in question, and
if it appears likely that he will, when that is likely to be.
He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.
Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.
He must consider, so far as is reasonably ascertainable—
the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),
the beliefs and values that would be likely to influence his decision if he had capacity, and
the other factors that he would be likely to consider if he were able to do so.
He must take into account, if it is practicable and appropriate to consult them, the views of—
anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,
anyone engaged in caring for the person or interested in his welfare,
any donee of a lasting power of attorney granted by the person, and
any deputy appointed for the person by the court,
as to what would be in the person's best interests and, in particular, as to the matters mentioned in subsection (6).
“Life-sustaining treatment” means treatment which in the view of a person providing health care for the person concerned is necessary to sustain life.
“Relevant circumstances” are those—
of which the person making the determination is aware, and
which it would be reasonable to regard as relevant.’
Balancing the considerations and “magnetic importance”
In the case of ITW v Z [2009] EWHC 2525 (Fam), Munby J (as he then was) gave the following guidance with regard to the different considerations listed in section 4 which the decision-maker must have in mind: (Footnote: 8)
“.... it may be useful to make three points, very familiar in the context of those other jurisdictions, which, allowing for the somewhat different context with which I am here concerned, seem to me to be of equal application to the statutory scheme under sections 1 and 4 of the 2005 Act:
i. The first is that the statute lays down no hierarchy as between the various factors which have to be borne in mind, beyond the overarching principle that what is determinative is the judicial evaluation of what is in P's “best interests”.
ii. The second is that the weight to be attached to the various factors will, inevitably, differ depending upon the individual circumstances of the particular case. A feature or factor which in one case may carry great, possibly even preponderant, weight may in another, superficially similar, case carry much less, or even very little, weight.
iii. The third, following on from the others, is that there may, in the particular case, be one or more features or factors which, as Thorpe LJ has frequently put it, are of “magnetic importance” in influencing or even determining the outcome.”
Significance of the person’s own wishes and feelings
The weight to be given to an incapacitated person’s own wishes was also dealt with in the case of ITW v Z [2009] EWHC 2525 (Fam), (Footnote: 9)
First, P's wishes and feelings will always be a significant factor to which the court must pay close regard: see Re MM; Local Authority X v MM (by the Official Solicitor) and KM [2007] EWHC 2003 (Fam), [2009] 1 FLR 443, at paras [121]-[124].
Secondly, the weight to be attached to P's wishes and feelings will always be case-specific and fact-specific. In some cases, in some situations, they may carry much, even, on occasions, preponderant, weight. In other cases, in other situations, and even where the circumstances may have some superficial similarity, they may carry very little weight. One cannot, as it were, attribute any particular a priori weight or importance to P's wishes and feelings; it all depends, it must depend, upon the individual circumstances of the particular case. And even if one is dealing with a particular individual, the weight to be attached to their wishes and feelings must depend upon the particular context; in relation to one topic P's wishes and feelings may carry great weight whilst at the same time carrying much less weight in relation to another topic. Just as the test of incapacity under the 2005 Act is, as under the common law, 'issue specific', so in a similar way the weight to be attached to P's wishes and feelings will likewise be issue specific.
Thirdly, in considering the weight and importance to be attached to P's wishes and feelings the court must of course, and as required by section 4(2) of the 2005 Act, have regard to all the relevant circumstances. In this context the relevant circumstances will include, though I emphasise that they are by no means limited to, such matters as:
the degree of P's incapacity, for the nearer to the borderline the more weight must in principle be attached to P's wishes and feelings: Re MM; Local Authority X v MM (by the Official Solicitor) and KM [2007] EWHC 2003 (Fam), [2009] 1 FLR 443, at para [124];
the strength and consistency of the views being expressed by P;
the possible impact on P of knowledge that her wishes and feelings are not being given effect to: see again Re MM; Local Authority X v MM (by the Official Solicitor) and KM [2007] EWHC 2003 (Fam), [2009] 1 FLR 443, at para [124];
the extent to which P's wishes and feelings are, or are not, rational, sensible, responsible and pragmatically capable of sensible implementation in the particular circumstances; and
crucially, the extent to which P's wishes and feelings, if given effect to, can properly be accommodated within the court's overall assessment of what is in her best interests.
Significance of the family and family care
In the recent Neary (Footnote: 10) case, Peter Jackson J reminded local authorities, the courts and others of the importance of family life and the significance to be attached to it:
“Decisions about incapacitated people must always be determined by their best interests, but the starting point is their right to respect for family life where it exists. The burden is always on the State to show that an incapacitated person’s welfare cannot be sustained by living and being looked after by his or her family, with or without outside support.”
This important decision is the latest in a line of judgments dealing with this issue.
A balance-sheet approach
The best interests test is an objective test, concerned with the best interests of P and not the best interests of another person. The following passage concerning the need for a balance-sheet approach to best interests comes from the President’s judgment in the case of Re S (Adult’s lack of capacity: carer and residence) [2003] FLR 1235: (Footnote: 11)
“The welfare of the mentally disabled person is paramount. The question, accordingly, is: which outcome will best serve her interests? Further, it is clear that the court goes about deciding that question by drawing up the balance sheet identified by Thorpe LJ in Re A (Male Sterilisation) [2000] 1 FLR 549 at 560F–560H:
'Pending the enactment of a checklist or other statutory direction it seems to me that the first instance judge with the responsibility to make an evaluation of the best interests of a claimant lacking capacity should draw up a balance sheet. The first entry should be of any factor or factors of actual benefit … Then on the other sheet the judge should write any counter-balancing disbenefits to the applicant … Then the judge should enter on each sheet the potential gains and losses in each instance making some estimate of the extent of the possibility that the gain or loss might accrue. At the end of that exercise the judge should be better placed to strike a balance between the sum of the certain and possible gains against the sum of the certain and possible losses. Obviously only if the account is in relatively significant credit will the judge conclude that the application is likely to advance the best interests of the claimant.’”
The deprivation of liberty provisions
It was not suggested to me that Ms K is deprived of her liberty at C Care Home.
European Convention on Human Rights
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 P’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: 12) 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: 13) 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: 14)
When focusing on the Article 8 rights of the person, and any other relevant person, the court should consider the nature and strength of the evidence of the risk of harm. There must, as Peter Jackson J observed in Hillingdon LBC v Neary at paragraph 15(3), be a proper, factual basis for such concerns.
Code of Practice
In coming to my decision, I have considered the relevant codes of practice, as required by section of the 2005 Act:
42 Codes of Practice …
If it appears to a court or tribunal conducting any criminal or civil proceedings —
a provision of a code, or
a failure to comply with a code,
is relevant to a question arising in the proceedings, the provision or failure must be taken into account in deciding the question.
The relevant codes are the Mental Capacity: Code of Practice (Department for Constitutional Affairs, London: TSO, 2007) and the Deprivation of liberty safeguards: Code of Practice to supplement the main Mental Capacity Act 2005 Code of Practice (Ministry of Justice, London: TSO, 2008).
More generally, the Code does not have statutory force but there ought to be cogent reasons for any departure. (Footnote: 15)
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 — C’s BEST INTERESTS
Having recited the relevant law, I shall now consider C’s best interests in the context of it.
Lack of alternative placements
There is no placement available for C in the area where her sister lives or indeed anywhere else. Therefore, it is in her best interests to continue to live at C Care Home. It is not open to the court to make a best interests determination on a speculative basis: See A Local Authority v PB and P [2011] EWHC 502 (COP) at [17] and [18].
Participation of P in the decision-making
I find that, so far as reasonably practicable, C has been permitted and encouraged to participate, or to improve her ability to participate, as fully as possible in the decision-making process. She has had many opportunities to express her wishes and feelings.
Whether a recovery of capacity is likely
There is no realistic prospect that C’s capacity will improve within the time available to enable her to make these decisions for herself. The decisions must be made for her.
C’s past and present wishes and feelings
I accept that C’s self-confidence and her ability to indicate her preferences have developed at C Care Home. She is clear about what she wants and does not want. If she decides not to go somewhere, she does not go. She will indicate that she does not want to do something by sitting on her hands or saying ‘no’.
Mrs T has been, and is, a devoted sister who has demonstrated commendable commitment to her younger sister’s welfare. Despite the distance and expense, she has visited C regularly over many years.
There will have been occasions when visits by Mr and Mrs T went well and nothing was recorded because nothing noteworthy occurred.
C enjoyed her Christmas visit. (I was told that, when she is at Mrs T’s home, she is ‘at the centre of things and is Queen of all she surveys.’)
These are significant positives. However, in my view the evidence clearly shows that since February 2009 C has very often not welcomed or benefited from visits by Mr and Mrs T:
Sometimes C is happy to see them initially but then gets louder and louder, sits on her hands, looks away, becomes withdrawn or reverts to screaming by the end of a visit by Mrs T.
When C is visited by her nieces, ‘staff have observed positive interactions with them.’ However, she frequently becomes angry when her sister visits, demonstrated by ‘shouting and a … change in the tone of [her] voice, which becomes more high-pitched.’ She ‘only shouts when she is asked to do something she does not want to do.’
The IMCA report from around August 2009 records that Mrs T arrived during an IMCA visit. Mrs T asked her sister if she wanted to go out. ‘C shook her head and was heard to say ‘go away”’.
When the Official Solicitor’s representative asked C if her sister had visited her recently, she ‘slouched down low into her chair, tucked her chin into her chest and poked her tongue out as far as she could shaking her head “no”’.
Mrs T’s contention that these problems started in June 2009 and are attributable to an unhelpful change to the visiting routine by staff is untenable. The evidence demonstrates that C’s attitude to Mr and Mrs T’s visits changed many months before. Indeed, under cross-examination, Mrs T accepted that there had been many occasions during the months before June 2009 when C had not wanted to go out with them. For example on:
14 February 2009 [C/94, ‘C started to shout very loudly … refused to go out, ran to the bottom of the garden,’ etc];
15 February 2009 [C/94-95, ‘ran back to lounge … started shouting and sat on her hands,’ etc];
21 February 2009 [C/95, ‘went back into the lounge’];
12 March 2009 [C/96, ‘shouted … screamed’];
14 March 2009 [C/96, ‘refused to go out with’ Mrs T];
4 April 2009 [C97, 1.40pm , refused to go out, C/98, refused to go out];
5 April 2009 [C98, ‘shouting and swearing “fuck off” very loudly. Mrs T asked staff why C never wants to go out.’];
11 April 2009 [C99, car park, started shouting and refused to go out];
26 April 2009 [C/101], 29 April 2009 [C/102], 9 May 2009 [C106], 15 May 2009, 16 May 2009 [C/108], etc.
It was not just that C needed ‘a little time to adjust … like anyone’ to a visit. As Mrs T eventually had to acknowledge, her sister ‘was obviously going through a period of change and different perceptions. I don’t know why.’ The quality of C’s contact with her and her husband since 2009 had ‘not been ideal.’
Mrs T argued that there was no evidence that on 7 February 2009 C had been left outdoors when it was snowing or cold. It had been a sunny, spring, day. However, having regard to the following contemporaneous note, I find it is likely that C’s subsequent change in attitude to visits was influenced by events that day:
‘7th February 2009 (Saturday) 1.45 pm C was collected by Mr T. At 3pm … support workers saw C standing outside Tesco’s on her own. They saw Mrs T sitting in her car ten feet away from C … and Mr T eating a meal. They watched C from the window; she was outside Tesco’s on her own for over an hour. The only time Mrs T got out of her car was to wipe C’s nose. It was running due to the weather being very cold and had been snowing. Mrs T then went back to her car. At 4.20pm Mr and Mrs T took C to their car and drove off.’
There may also be a link with the discomfort associated with Mrs T’s management of her sister’s catheter, which is dealt with below.
Mrs T herself seems to have noticed a change in C’s behaviour or attitude at the time [a note dated 14 February 2009, C/94, records that Mrs T ‘said that there must be something wrong, as C did not seem very happy last weekend …’].
There is evidence that Mrs T’s manner or behaviour can have a lasting, no doubt unintentional, effect on C. According to care home staff, on one occasion C was sitting at the dining table and was about to eat. Mrs T sat close to her in an ‘intimidating’ or ‘oppressing’ manner. Ever since, C had refused to eat any food at the table. Staff tried different tactics, for example asking C to sit at a side table elsewhere, but she would not eat at the table anymore.
I accept the care home manager‘s evidence that Ms K ‘has little motivation to either engage during visits by her sister or her husband or to happily leave [C Care Home] to visit her family. Over time [her] response to visits and her interaction with her sister has developed ‘into a disinclination to engage … This is perhaps seen in … turning her head away, sitting on her hands and becoming increasingly “vocal” in volume …’
I find that Ms K’s response to Mr and Mrs T’s visits has ‘been consistent and sustained’. Many records refer to her turning her head away, becoming anxious and agitated, being too unsettled to eat her meal, and the like. On one occasion, she shouted and exclaimed ‘no’ and ‘don’t like it’.
I cannot accept that the difficulties from February 2009 onwards are simply part of C’s condition and do not demonstrate a wish on C’s part not to have contact.
The parties differed in their interpretation of C’s behaviour when she was taken to view a placement proposed by her sister. ‘Both times she refused to enter the building.’ On the second visit, when she approached the drive where Mrs T’s car was parked, ‘she refused to walk any further and turned back to (her key worker’s) car.’ Having returned to her key worker’s car, she ‘sat by her key worker with an expression of relief on her face.’ Although Mrs T believed this attributed too much understanding to her sister, JD said, ‘I saw the look on her face’.
Having listened to, and carefully considered, the different views, I accept that this behaviour was an indicator of her wishes and feelings in relation to moving to an alternative home. She had encountered the same situation on several occasions in the past. I believe that she recognised why the visit was taking place and showed through her behaviour that she does not want another move. I do not accept Mrs T’s argument that this was simply an example of her hesitancy when visiting any new place or that she ‘would not have recognised it as a place for people with learning disabilities.’
In my opinion, the evidence demonstrates that C feels at home at C Care Home and wishes to remain there.
I cannot accept Mrs T’s contention that when she, Mrs T, said that she ‘recognises that C is happy and settled’ at C Care Home [C/62], her use of the word ‘happy’ was ‘a figure of speech, I think.’
Under cross-examination, Mrs T agreed that:
C has been at C Care Home for 4½ years and was settled and hopefully secure there;
She has a close relationship with staff and people living there;
It takes time for C to establish familiarity with people, regimes and routines;
Staff know her and are aware of her needs;
She has opportunities to travel, for example on holiday to the Isle of Wight and, subject to getting a passport, to France;
C Care Home has an above average ratio of staff to residents;
C has not exhibited challenging behaviour;
There have been ‘some positive aspects’ to her time there;
Mrs T would probably not be seeking a move if she still lived close by.
C’s wishes and feelings are ‘pragmatically capable of sensible implementation.’ They ‘can properly be accommodated within the court's overall assessment of her best interests.’ This is because living at C Care Home has many benefits for her:
Mr P referred to ‘the high quality environment,’ ‘the high quality facilities available to [her],’ ‘stable, consistent and high quality care and support,’ ‘a strong and positive working relationship with her case manager and staff and some trust in these relationships,’ ‘a broad range of social interaction within her local community and further afield.’
C has had the same keyworker throughout her time at C Care Home and they have a good relationship.
There ‘have been no changes within the staff group’ since C’s arrival [E/20].
The high quality of communication between staff and C is apparent from Mr P’s description of staff interaction with C and the support given to her.
Her quality of life is good. Mr P observed that she seemed relaxed and happy when he visited her [para. 4.2, E/18-19]. She ‘feels safe and settled in her home,’ according to JD.
The fact that she has not displayed challenging behaviour, or required medication to control such behaviour, are good indicators of how happy and settled she is at C Care Home, and factors which support the status quo.
She now has a close friend, T, and ‘they play, dance, sing and communicate in a similar way.’ She also likes and spends time with two other residents, L and M.
Her room could be described as a spacious double room, and it is decorated and maintained to a very good standard, according to Mr P (E/23].
The home has a higher than average staff to resident ratio.
The activity centre has a staff/user ratio of one to one.
The care planning and review process is good.
The home has a good relationship with the local authority.
C has developed her confidence to express her wishes and feelings at C Care Home.
She likes what she knows and does not respond immediately to new faces.
She has good medical input at the home [C/61]. Her medication is managed and she is usually compliant.
She is supported ‘to make appropriate and safe decisions’ and provided with ‘a range of options that she might not otherwise have.’ I agree with the Official Solicitor that this support to maximise her capacity is a significant factor in favour of her remaining there.
I do not accept most of Mrs T’s criticisms of the care home:
I do not accept the entry in C’s album on her behalf: ‘The members of my peer group are in an ongoing vegetative cognitive state … it is hard to find any reaction in them’ [C/178]. Nor do I do not accept Mrs T’s tentative suggestion that it may be the case that less able residents are put in a side-room when the home has visitors. I prefer JD’s and Mr P’s evidence that the other service users have similar IQ levels [C/224]; that the home is a suitable environment having regard to the abilities and needs of the other residents; and that she interacts well with others at the home.
Mr P noted good relationships between staff and C and expressed no concerns ‘arising from the ethnic mix’.
Ms K is provided with an appropriate level and range of weekend activities as well as leisure.
The use of a wheelchair on one occasion some time ago was explained by JD and dealt with. (I accept that C is mobile and that it is unlikely that Mrs T said that she was going to buy her sister a wheelchair).
I accept that when C first had a catheter many people struggled to get used to it. C ‘is very tiny and due to the way in which she moves, for example, by stamping her feet and sitting down abruptly, she can sit on her tube and it sometimes kinks.’ However, the situation has been rectified. Staff have been trained in how to empty the bag and how to manage basic maintenance tasks. They have been awarded certificates to show they are all competent in helping someone with a catheter.
I do find that, in addition to depriving her of the above benefits of C Care Home, moving C to a new care home carries a number of risks:
She needs stability and does not respond well to moves and changes to her life and routines.
A failed trial could be ‘very destructive and distressing’ for her.
If a move to a new placement did not work out, she might not get back into C Care Home. That would be ‘potentially disastrous’ for her.
It often takes a person in C’s situation two to three years to settle at a new placement.
It is not possible to predict the precise effects of a move. A new placement carries with it many unknowns and a risk of disruption, distress and anxiety. C has displayed challenging behaviour and required psychiatric intervention in the past when things did not go well at a placement.
As Mr P observed, moving her could ‘undermine the stability and the progress that [she] has made to date.’ She might experience the same benefits but it is ‘full of ifs and buts … a gamble if you like.’
C is a 60-year old lady with Down’s syndrome, a shortened life-expectancy and an increased risk of developing dementia and medical complications. These risks are all relevant to the advisability of moving a person of her age and circumstances. At C Care Home, her medical needs can be met without interruption by medical personnel who are familiar with her condition and needs.
To summarise, C is settled, happy and well cared for at present. There are many benefits to her living at C Care Home. It provides her with a high quality of care appropriate to her needs.
Views of non-professional carers
No one questioned the significance of C’s relationships with her sister and extended family.
Given Mrs T’s commitment to her sister, her counsel asked me to be cautious about arriving at a conclusion damaging to her. However, this is her application and it is necessary for me to make some findings and to give her adequate reasons for my decision.
I give no weight to the fact that Mrs T did not take up the local authority’s offer of funding for two visits by C to her home. It is not uncommon for unrepresented parties to worry that they may weaken their case if they consent to a compromise or proposal. No doubt in her mind refusal was justified by the greater good of achieving a change in her sister’s place of residence.
Regretfully, I do find that Mrs T’s conduct and explanations demonstrate that she is not always able to hold C’s best interests ‘at the heart of her decisions and actions’. For a lengthy period, she has attempted to insist on taking C out even though it was causing obvious distress and was against C’s wishes.
I do not accept that I should ‘give little weight to [Mrs T’s] evidence and views’ or that I should not accept her evidence unless it is ‘supported by independent, contemporaneous, documentary evidence or by professional evidence.’
That said, I do find that she is not always ‘a reliable historian of fact’ or a ‘reliable witness of truth,’ as it was put to me:
Her interpretation that the visiting problems were caused by staff changing the visiting routine in June 2009 was unsustainable.
She exaggerated the distance involved in visiting her sister. The distance of a return journey to C Care Home is 130 miles, not 200 miles. According to the AA route planner, the journey would take 75 minutes.
I cannot accept her oral evidence that there has only been one, not 15, occasions when she has returned her sister to the care home with an over-full catheter bag: ‘15 is an error. The 5 should not be there.’ Mrs T’s response to all of these records [C/80, C/81, C/83 ‘hanging down to ankle, C/85, C/86 shoes and socks wet, C/88, C/90, C/91, C/99] was, ‘I do not know where this information comes from.’ To my mind there are simply too many detailed records and volume readings. I find that on 15 occasions C was returned with an over-full catheter bag.
I cannot accept her evidence that, ‘The members of [C’s] peer group are in an ongoing vegetative cognitive state … it is hard to find any reaction in them.’
I also agree that Mrs T is not always a ‘reliable guide … to C’s best interests.’ I share Mr P’s concerns about her ability to act in her sister’s best interests [E/37]:
‘Further examples of this issue may be seen in [Mrs T’s] approach to CK’s best interests in relation to her medical care. In August 2008, [Mrs T] discharged CK from [hospital] … against medical advice, transporting her from hospital in her hospital gown and slippers in the process.’
Later on, she insisted that her sister be followed up at this hospital even though a much closer hospital could have provided suitable after-care without lengthy travel and discomfort for CK.
‘Recent history shows the likelihood that CK was accustomed to being told what to do and when. When she has been moved, she has experienced months of difficulties in adapting to the transition.’
The way in which Mrs T moved C to C Care Home in August 2008 was perturbing. According to a note, AH2 advised the out-of-hours emergency service that Mrs T had removed C’s belongings from AH2:
‘Mrs T has apparently found another home for C and has informed staff that C will not be returning. C’s new destination is not known. C has apparently not seen the home and staff are concerned as to [her] welfare.’
I accept that Mrs T has on occasion telephoned the Emergency Duty Team and/or police inappropriately.
I accept that Mrs T ‘answered many questions that required only a yes or a no in reply not with a simple yes or no but with lengthy self-justification. Her manner in this respect made it easy to understand how particular and demanding she could be for a care home to deal with, and this was relevant when contemplating the likely success of a new placement.’
Other relevant considerations
The local authority has had C’s best interests at heart at all times. It has been committed to ensuring that her needs are met and that decisions are in her best interests. It has not been swayed by financial considerations.
Contact
Contact arrangements were agreed. However, it is necessary to make some findings, having regard to Article 8 and the issue of whether a final order is appropriate.
Because of C’s wishes and feelings, at present it would not be appropriate or in her best interests to have more than 45 minutes contact each week with Mr and Mrs T even if she was living near to Mrs T (or Mrs T moved near to her).
Necessarily therefore, unless and until the current situation changes in some fundamental way, a move to Mrs T’s home area would not result in more contact each week for C with Mr and Mrs T.
The local authority has offered to facilitate and support visits by Ms K to Mrs T and her family. Hopefully, Mrs T will now accept the offer. If the agreed contact goes well, it may be possible for C to have good quality family contact and her stable placement at C Care Home. An appropriate balance could be maintained.
The evidence supports Mr P’s conclusion that there is a need for carefully regulated and structured contact with the aim of improving the experience both for C and her family.
If his recommendations are followed, hopefully ‘it may be possible’ to improve contact and to establish a pattern of family visits which Mrs T says were once the norm. If the contact schedule agreed by the parties does not lead to improved contact and enhance the family life of all concerned, there is nothing to be said for a move closer to Mrs T anyway. One would simply be promoting poor quality contact.
Whether a final order as to residence is appropriate
Mrs T’s counsel asked me to leave the door open to a change of residence and to continue the interim order.
In my opinion, it is in C’s best interests to continue to live at C Care Home even if a similar placement closer to Mrs T becomes available in the near or foreseeable future. It would not be in C’s best interests to move. A final declaration that it is in her best interests to reside at C Care Home is appropriate.
The process of identifying and assessing alternative placements has already taken place. There has been ample opportunity for Mrs T to raise alternatives for consideration by the court. On 12 May 2011, directions were given for her to identify, and the local authority to consider, the suitability of an alternative placement. Mrs T proposed KL and VS. On 21 November 2011, the local authority provided the names of two potentially suitable care homes. On 28 November, Mrs T wrote that she did not consider either home to be suitable. On 30 November 2011, C’s representative confirmed that the only placements that Mr P would therefore be asked to review were KL and VS. Mrs T later asked that RCH be considered by Mr P (one of the homes previously rejected by her as unsuitable). However, for the reasons set out in his second report he did not do so. Mrs T has not identified any other possible suitable placement.
A final order will bring finality to a lengthy process. Hopefully, it will help to ensure that all of the parties engage fully with the agreed contact arrangements rather than continuing to pursue alternative strategies and a further hearing.
C’s property and finances
An issue about C’s property and affairs is only likely to arise if she moves in the future. However, it is appropriate and in her best interests to make final the interim declaration concerning her lack of capacity to manage her property and affairs.
Article 8
In the case of K v LBX [2012] EWCA 79, the Court of Appeal held that a judge should first of all ascertain the best interests of the incapacitated adult by applying the checklist of factors in section 4. S/he should then ask whether the resulting conclusion amounts to a violation of Article 8 and whether it is necessary and proportionate.
I accept that the travel costs to C Care Home are a problem for Mr and Mrs T. The driving is tiring and must detract from her ability to enjoy her visits and engage.
Set against this, C’s wishes and feelings, her happiness and contentment at C Care Home and her present discomfort with Mrs T and her visits are critical factors.
The weight which Mrs T asks the court to give to her relationship with her sister has to be adjusted to take account of C’s wishes and feelings since 2009 about that relationship. C’s wishes and feelings are clear.
In reality, C Care Home is now C’s home and her home and life there has very great value for her.
The evidence demonstrates that C Care Home meets C’s needs and provides her with a safe and fulfilling family life. All of the professionals involved, including her IMCA, agree that it is in her best interests to remain there.
She can still enjoy frequent contact with her sister and family members, subject to her own wishes and feelings. In one year, Mr and Mrs T were able to visit 47 times and her nieces have visited her. Such difficulties as there are can largely be overcome.
For the reasons given, the interference is lawful, necessary, proportionate and for a permitted purpose.
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 C’s rights and freedom of action. I do not believe so. Her residence at C Care Home is in her best interests and the contact arrangements have been agreed. It is common ground that a declaration or order is required given the history and present circumstances.
§14 — ORDER AND DIRECTIONS
I would ask the parties to submit a draft order in accordance with the above judgment.