MK v JK & Ors

Case number 1185523T, the matter of Mr JK in which the Applicant is Mr MJK acting in person; the First Respondent is Mr JK, acting by his litigation friend the Official Solicitor; the Second Respondent is Mr KK, acting in person; the Third Respondent is JiK, acting in person; and the Fourth Respondent is The PCT. The Official Solicitor is represented by Mr Bagchi of counsel and The PCT was represented by Mr Fernando of counsel and today is represented by Miss Galland, solicitor advocate. I am grateful to all those above mentioned persons for the assistance they have given me in presenting me their respective points of view in this case.

For the moment this judgment is being given in private on 10th July 2012, today being Day 4 of the case, the first three days being 12th, 13th and 14th June. JK was born on 10^th September 1927 so he is now aged 84 years. He has two siblings. They are MoK and EK. JK’s partner and I think wife, E, died sometime ago. There are three children. They are MK, KK and JiK. All the parties before the court accept that JK suffers from vascular dementia and Alzheimer’s Disease and that he lacks capacity to decide in particular where to live and to litigate these proceedings. Since 27th May 2010 JK has lived at a nursing home (‘the Home’), which was arranged by and is funded by The PCT and funded under NHS continuing care. All the parties before the court agree that it is in JK’s best interests to live in a nursing home but the one issue on which they cannot agree is the choice of home. MK and KK have always contended that the Home was not suitable for JK and they have over time put forward a number of alternative homes. The only alternative now available is the home now known as the ‘CNC Home’. The PCT have told me that if it is appropriate then the CNC Home can take JK and that no funding issues arise. JiK, MoK and EK have nothing bad to say about the CNC Home but they say that JK should remain at the Home because in particular they consider the Home to be a satisfactory home and that they consider that the risks to JK’s health and wellbeing if he were to be subjected to a move do not justify the move.

MK made an application to the court to be appointed Personal Welfare Deputy for JK and that is how these proceedings commenced. However, all parties accept that the one issue is residence and that it is to be determined by a court and this case has been case managed on the basis of resolution of this one issue since 4th March 2011 since which time JK has been a party with the Official Solicitor as his litigation friend. Expert evidence has been obtained by the Official Solicitor and is found within the reports of Dr Barker, consultant in old age psychiatry, and Miss Phair, an independent nurse expert witness in the specialist field of older people. I have had the advantage of being the judge throughout these proceedings and the continuity I think has proven to be invaluable in this case. I have read the significant documentation and witness statements in the two hearing files, which are now three hearing files, running over some 820 or more pages. Where witnesses have not been the subject of significant challenge and have not given oral evidence I have generally taken their written evidence as read. Over the course of three days I have heard from MK, KK, JiK, MoK and EK – who are on JiK’s side – from the PCT Mr Higgins, Dr Mennon, and for JK the expert evidence to which I have already referred. The PCT was prepared to call staff from the Home who have not filed statements to deal with the Home’s responses to the shortcomings alleged against it and the improvements made by the Home. I may possibly have allowed such evidence to be called if that were the right thing to do after applying the overriding objective that we see in Rule 3 of the Court of Protection Rules 2007. However, the Home is not itself a party. The court had already formed the view that the best way to consider the quality of the Home’s case was by way of expert reports as obtained by the Official Solicitor. It was appropriate to approach this part of the case on the basis of information obtained by and made available to the Official Solicitor rather than by the court carrying out a time-consuming investigation of its own. The quality of the Home’s care was only one of a number of features in this case, and it would not have been fair or just really in 2012 to expect the court to be bounced into taking such evidence orally given the amount of time there had been to prepare the case and given the way the case had been managed to date. The positions of the family members did not change at the conclusion of the case, so MK and KK want JK to move to the CNC Home; JiK, MoK and EK want JK to stay put at the Home. The position of the PCT is neutral as between the two care homes and the position of the Official Solicitor at the conclusion of the case was that JK should move to the CNC Home.

The background, in so far as I have not covered it so far, JK is a professional musician who composed and performed jazz, popular and classical music. I have been told that he continues to play the piano and he continues to enjoy listening to music including that which he composed himself. He is able to operate an iPod. There was a time in the history when JK became estranged from two of his siblings, namely, EK and MoK. It seemed that JK remained close to his sons but they became estranged from their sister JiK, who remained close to EK and MK. I did not and do not consider it helpful to anyone – and I include JK of course in that – to inquire any further into the cause or causes of the fallings-out. In about 2006 JK was diagnosed with Lewy Body Dementia and Alzheimer’s Disease. At that time he was living in his home in London. JK required ever-increasing amounts of care. As I understand the evidence of the family it was mainly KK at this time who provided JK with most of the care and support that he needed, and that was not challenged in evidence. Unfortunately, JK deteriorated. In 2010 he developed a tendency to leave his home and be found wandering, lost, in London. There came a point when JK was admitted to Hospital and ready for discharge but not to his own home. As I said previously, it was always agreed that a nursing home was appropriate and in fact it would be an NHS nursing home under the continuing care provisions. Jill was content for JK to be discharged to the Home. At that time MK and KK did not consider the Home to be appropriate. I understand that the PCT came to the conclusion that whatever else it was not appropriate to keep JK in the hospital, he needed to be discharged somewhere and so the PCT told me he was discharged to the Home on 27th May 2010 as an interim measure.

It was not long after that date that when visiting JK MK became aware of bruises suffered by his father which had not been noted and investigated by the Home. He was also troubled that JK’s iPod had gone missing. It was especially valuable to JK because it holds his music, and of course it is a valuable machine. They were concerned that the Home had not dealt with that issue properly. They were troubled by further observations that they made about the nursing home generally; for example, the way in which a particular resident was handled – they felt that the way that resident was handled amounted to abuse. This triggered off further investigations. The Care Quality Commission carried out a review of the Home. Their findings are dated in January 2011. They are in the bundle. They have three particular concerns found at C73 of the bundle:

MK and KK have looked for alternative homes. Various were considered, have been mentioned in passing, but they have all been found to be unsatisfactory save for one, which is the CNC Home, which was identified only a matter of a few weeks before the final hearing started. It was on 14th June, the last time we were all together, it came to light that unfortunately there had been a suspension of new NHS-funded admissions to the CNC Home because of safeguarding alerts which have now been looked into by the authorities and the experts in this case Dr Barker and Miss Phair. Generally the majority of the safeguarding alerts have not been made out and none of the alerts concern the dementia unit.

I turn then to consider JK’s needs. His health and care needs have been covered extensively in documentary evidence and in depth by Dr Barker, who says at p. D41 of the bundle:

Dr Mennon enlightened me in evidence on the sort of person JK is. Dr Mennon described him as a free spirit. JK is disturbed by others making a disturbance. He likes to play a working piano. Whilst I am sure that most adults would like the following matters, I have the clear impression that JK in particular would favour space, peace, opportunity to enjoy listening to and by playing the piano making music. JK requires physical assistance. It does seem to be the case on the evidence that if this assistance is provided by more than one person and the persons are female, aggression may be triggered which inevitably requires more assistance to be given in a sort of vicious circle. I do have the firm impression that that is not a home-specific problem; it is a problem that emanates from JK himself and requires skill and tact on the part of those caring for him.

Save for the matters to which I have referred, JK’s moods would appear to be typical of a gentleman of his age and condition. So, in summary, he requires a nursing home which can provide him with the best environment, amenities and care, affection, attention and stimulation reasonably attainable. So, the issues at the final hearing I think can be summarised as follows given what the parties all have to say. The ability of the Home to meet JK’s needs; the ability of the CNC Home to meet JK’s needs; the risks to JK of a move from the Home to the CNC Home; the motives, wishes and feelings of MK, KK and JiK in particular, and also MoK and EK.

This is a two-storey building accommodating up to 24 residents. It has been under the close expert scrutiny of the Care Quality Commission and Miss Phair. In her report of 11th October 2010 Miss Phair identified a host of concerns which she summarised in bullet form at para. 90 of that report. Many of those concerns have continued to date, and Miss Phair has emphasised to me in oral evidence that the Home operated a traditional model of responding to the residents with the residents being perceived as the ones having a problem whereas a person-centred approach would be much more beneficial to I suspect many of the residents but in particular JK. Nonetheless Miss Phair was very straightforward in her reports that it was not in JK’s interests to move until a better alternative to the Home could be found. I see in particular para. 1.3 of her report of 1st May 2012.

What else can be said about the Home? Of course it is JK’s home now for over two years. He is familiar with the place. Staff know him and his ways. JK is bound to have some familiarity with the Home – layout, familiar faces – although I understand his ability to recall these matters is sadly fading. What about the accommodation? MK and KK have never been impressed with the accommodation. I do have the impression of a rather compact unit with limited room. Dr Barker found the place dark and claustrophobic. JK’s bedroom does not have a toilet of his own. There is a small garden which I am told is often locked and inaccessible. Part of the garden is gravelled and there is concern, echoed by Dr Mennon, that that is dangerous – something needs to be done, it needs to be changed. There is a piano but one key at times has not worked. So far as food and activities are concerned, there is no menu choice with respect to food; there are activities but they do not appear to be individual tailor-made activities, rather a schedule of activities for the inhabitants as a whole.

So far as care is concerned, I have already referred to the evidence of the shortcomings put against the Home. Dr Barker described it as institutionalised. Miss Phair remains to date concerned that the care model of the Home is traditional. An example was given with respect to trousers. There was a time when JK was being visited. He was wearing trousers which were too large for him. He had no belt and had to hold his trousers up to move around. That does seem to strike me as being really rather undignified for JK and an example of not looking at things through the eyes of the inhabitants. Dr Barker fairly observed that quality of care at homes generally can be and frequently is cyclical, and that the Home perhaps having found its nadir is perhaps now on its way up.

So far as the CNC Home is concerned, it was held by JiK in particular that the CNC Home had not received the sort of scrutiny that had been applied to the Home. That was right until 14-15th June. JiK said give the CNC Home that sort of scrutiny and shortcomings may come to light. She has been proven right, I think, in that respect. What has been displayed to all of us is that there is no such thing as a perfect nursing home or care home. I am quite confident that no one will find one. So far as familiarity is concerned, JK is not familiar with the CNC Home, has not been there, but I have the impression from the medical evidence that because of his condition if he moves there JK will soon develop as much familiarity with the CNC Home as he was able to develop with the Home. So far as the accommodation is concerned, it has been described as light and airy; the bedroom has an en suite toilet; there is accommodation in which relatives can stay if appropriate; there are gardens and a sensory room. I have the impression that there is far greater prospect of escape from other noisier residents and there is a fully working piano. So far as food and activities are concerned, there is a choice of menu. Of course the fact that there is a choice does not necessarily mean the food is any nicer, but perhaps more importantly activities are tailored to the residents, which I think is an important consideration. It also seems to have the advantage with respect to care in that physiotherapy is provided and indeed there is a dedicated physiotherapy room. Miss Phair and Dr Barker, very much acting as ears and eyes for the court and indeed for the parties, were both impressed by the person-centred approach at the CNC Home. Indeed no one I think sought to be critical of it in any way at all.

I turn to consider the risks of the move. Barbara Hunt, a practice development nurse, advises at p. C154 that moving JK away from the Home ‘will make no obvious difference to his physical health.’ On a practical level a move would involve JK in having to lose such acquaintanceships as he may have made with other residents at the Home – I think that was a point that MoK sought to make in particular; however, there does not seem to be any positive evidence of the forging to date of any significant friendships and acquaintanceships. He would of course lose such positive relationships as he has made with the Home staff and medical staff and he would be forced into having to develop such new relationships as he can with the CNC Home staff and new medical staff, and of course would have to learn his way around a whole new environment.

In his letter of 31st March 2011 Dr Mennon advised at p. C315: ‘My main concern regarding the proposed move is this. Moving Mr K to another location would always run the risk of acute disorientation and this could cause distress and agitation. Also given his level of dementia he would struggle to understand why he is in a whole new environment or indeed why he has to deal with so many unfamiliar faces. This could leave to aggressive outbursts. However, on the positive side he might benefit from his sons visiting more regularly.’ I pause there to observe that that last point is not really a point now. Geographical location was in issue but the geography I think has become an impractical matter to pursue, the short point being that it would have been convenient to MK and KK if there had been a nursing home on the eastern side of the capital rather than the western side. In his statement of 2nd April 2010 Dr Mennon confirmed what he had just said but he tempered it with his observation that he had seen people successfully negotiate major moves so long and usually with the support of the family during the transition period. Dr Mennon gave me oral evidence and in what I found to be very thoughtful and measured oral evidence Dr Mennon confirmed to me that there was a risk that a move would cause JK to deteriorate but the risk was very speculative and many residents had achieved transition without there being any problems.

The overarching impression I have from the expert evidence is that there is a risk of mood instability and disorientation which may manifest itself by aggression but that those would be temporary problems which could be guarded against and hopefully ameliorated by a careful transition package being thoughtfully assembled and delivered. The precise transition package if the move were to be considered to be in JK’s best interests would be assembled by collaboration between the professionals concerned or to be concerned with JK’s care, and the family, and I have no doubt that it would be appropriate for The PCT to take the lead. Plainly the task is of critical importance and there always needs to be a Plan B. I am told that to help with the transition one-to-one care might be needed initially and Dr Mennon told me that he considered it vital that a member of the take-over Community Mental Health Team should be involved.

What is the Plan B? That is keeping the place open at the Home should the move to the CNC Home not work out. JiK, MoK and EK in their own ways have all made again a very fair point that if it was felt that there should be a Plan B to cater for the possibility that JK does not settle at the CNC Home that is itself a good reason for not experimenting with moving him in the first place. That is entirely understandable but I think it has to be looked at in the context of assessing the risk of a transition failing. There are no guarantees in this case but the evidence – the expert evidence – shows me that the risk of moving to the CNC Home should be assessed as small.

I need now to turn to a specific point of motives. This is really a matter between the three children of JK. I have already referred to the estrangements that have occurred in the family and I refused to hear oral evidence on the rifts. Each side of the family appears to blame the other for the existence of the rifts but the sad fact of the matter seems to me to be that neither side seems to have a lot of time or respect for the views of the other. One is certainly left with the impression of an element of power struggle in the family, and I need to consider whether or not that has tainted the opinion of any family member. MK and KK were insistent in their views from the very beginning that the Home was not right for JK. They did not want him to go there in the first place. At one time they did possess a laudable motive of trying to move JK to a home geographically closer to their own, which was particularly understandable given that there is only one set of grandchildren, as I understand, who are the children of KK. I am sure that there is much value to be had in ensuring that the grandchildren can see their grandfather. MK and KK were able to impress me because they both accepted that in time there was no care suitable for their father other than the CNC Home. They have shown a degree of flexibility.

JiK said and contended that her brothers wanted JK out of the Home simply because she wanted him to remain in the Home. I cannot agree with that. That did not seem to me to be the position. In her written and oral evidence JiK has sought to defend the Home and on more than one occasion said the safeguarding concerns had not been substantiated at all. She has modified that as the case has developed but I think she still diminishes those concerns. She, her aunt and uncle, have consistently said they regard the care given to JK at the Home to be of the highest standard, and I refer to their witness statements and closing submissions. It was not accepted that JK had suffered any injury, and as I say, either concerns raised by the experts Miss Phair or the CQC were either not accepted or downplayed. But in fairness JiK did described the CNC Home as ‘lovely’ – that was her word – she did not have a negative word to say about the home. Her sole concern was the risk to JK’s welfare of the move.

MK and KK say that their motive is to move JK out of the Home to a better care home because they consider that the Home has failed to provide adequate care to their father and continues to have shortcomings in its care regime and environment. They have lost all confidence in it. MK sought to emphasise his involvement in the Home and his campaign for improvements. I noted in their evidence that MK and KK do accept there is a risk to JK’s health and wellbeing in the move but they balanced that against the potential benefit and they came to the conclusion that the benefit outweighed the potential detriment.

All members of the family have had the opportunity to refine their views after oral evidence was given by the various experts and professional witnesses in the case. That evidence must be noted as having favoured MK and KK’s position. I was concerned that Jill did not seem to me to reflect much upon her stance notwithstanding the evidence from Miss Phair, Dr Barker and Dr Mennon, all three of whom must be regarded as objective in this matter with no reason to want to favour one place or another. On questioning from counsel for the Official Solicitor she felt the only improvement required at the Home was turfing of the garden. I was also troubled that JiK did not seem to me to weigh up and put in the balance the benefit that would accrue to JK by all three children being comfortable with the home in which he is living.

After hearing the evidence and forming my assessment of the family, I do find that MK and KK are motivated only by a wish to do the right thing for JK and their opinion of the Home is not coloured at all by their relationship with their sister. I cannot say quite the same for JiK. I am certain JiK is primarily motivated by a wish to do the right thing for her father. But I think her rigid refusal to countenance the possibility of an alternative to the Home or that the Home has failed her father in any way persuades me that there is an element of wanting to get her own way in this case. It is not all rosy. I must add dissatisfaction in the way in which MK and KK have treated their sister. It seems to me that there has been little attempt at meaningful collaboration and discussion from their side. I very much had the impression from Directions hearings through to this final hearing that the brothers regarded their sister as a junior partner and that they made their view known to JiK that she was a junior partner. I do not think that was appropriate. In the hearing and indeed in the closing submission much has been made about totting up number of visits on a sort of score card, which I do not think is appropriate. In my judgment in this case there should be no discrimination by the three children between the three children of JK; they should treat each other as equals should future decisions need to be made for JK.

Best interests must be determined in accordance with Section 4 Mental Capacity Act 2005. JK does not have capacity and will not regain relevant capacity. It is not possible to deduce JK’s specific wishes, feelings, beliefs and values. I am impressed by Dr Mennon’s description of JK as a ‘free spirit’ and I can see that JK would value being cared for in a spacious home where his privacy from other noisy residents and access to services, instruments, furniture, environment which makes his world a better place. I do take into account the views of all the persons engaged in caring for JK or otherwise interested in his welfare in so far as those views have been expressed to the court, so that is family and professionals of course. Whilst I do not consider there to be any hierarchy as such it is appropriate in my judgment to give significant weight to the independent expert evidence and I should only depart from that evidence if there is good reason to do so. Until given the option of the CNC Home Dr Barker was of the view that JK should remain at the Home. The report of Miss Phair and the emergence of the availability of the CNC Home are the matters which persuaded Dr Barker on balance to support a move to the CNC Home. Miss Phair firmly supports JK moving from the Home to the CNC Home. But that view arose only when the CNC Home became available as an option. The experts re-visited and confirmed their evidence when the safeguarding alerts arose in respect of the CNC Home and they were able to look at the alerts and look at whether or not any were made out and/or relevant.

This is a classic case in which the court must carry out a balancing exercise of looking at the pros and cons of the two options available to JK. I have already compared the Home and the CNC Home in various ways and it is apparent that the CNC Home is superior in a number of respects. The physical environment- Dr Barker noted that this difference was – his word – pivotal. The ambience and person centred approach was better and more suited to JK’s needs. There have been the concerns at the Home but its improvement still seems to be a work in progress. The sustainability of improvement, especially when the spotlight of court proceedings is switched off, is unknown. Miss Phair, I think, was hoping for there to be rather more progress than there has been to date. The CNC Home is not perfect; nowhere is. It does seem however to have a good system of checks and balances and alerts. Its alerting system, as we have seen in recent evidence, seems to function well and rather better than that deployed at the Home, whose response to safeguarding alerts was criticised by Miss Phair as being negative and uninformed on the part of the staff. I remind myself that none of JK’s children has a criticism to make of the CNC Home.

If JK is left at the Home the sons will remain worried. They are bound to breathe down the Home’s neck. There is no prospect of the brothers recovering confidence in the Home. That is likely, in my judgment, to be unsettling to the family as a whole and for the staff and persons at the Home. No visit is ever realistically going to take place purely as a visit to enjoy JK’s company. There is going to be constant scrutiny. There are going to be further worries, many of which may be unjustified but that is not going to stop the worries happening in the first place. That is an instability which cannot be in JK’s best interests. It cannot be in his best interests for a real list of quality of care issues arising again and again. In my judgment it is those factors which outweigh the risk to JK’s health and wellbeing which would be caused by a move.

I have carefully considered the relevant provisions of the Mental Capacity Act 2005. I am also obliged to consider Article 8 of the European Convention. I note that this dispute within the family could not have been resolved by any lesser method other than by this court intervening and making a Best Interests decision, therefore the court intervention is in my judgment proportionate and further to a legitimate aim of resolving a family dispute. The decision that I will make for JK is that it is in his best interests to move to the CNC Home on the basis that his placement at the Home will be retained for eight weeks so that he has somewhere to return should the move to the CNC Home fail. I do not propose to make any tailored orders with respect to how the transition plan is to be assembled. I will leave that to the PCT.

I turn finally to the matter of a Deputyship. This case began as an application by MK to be appointed Deputy in respect of JK’s personal welfare. That part of the application was not pursued by MK nor indeed any other member of the family. I have been invited by counsel for the Official Solicitor to provide a short judgment of the circumstances in which the court might be minded to appoint a Personal Welfare Deputy, the judgment being for the benefit of family members in this case should any of them think about applying for Deputyship in the future.

A Deputy is a decision-maker appointed by the court. The appointment cannot be made unless the court declares that the person for whom the decisions are to be made lacks capacity to make those decisions, and it is in his or her best interests for a decision-maker to be appointed. The ethos of the Mental Capacity Act 2005 as a whole in alignment with Article 8 of the European Convention is for the State to intervene as little as possible. The least interventionist approach is immediately noted by Section 16(4) Mental Capacity Act 2005 which says:

Section 5 Mental Capacity Act 2005 so far as matters of a personal welfare nature are concerned codifies what is noted as a sort of general defence, so someone has a defence to for example an allegation of assault if the act that was decided upon on P’s behalf was done when there was reasonable belief that P lacked capacity and it was in P’s best interests for that act to be done. The Code of Practice itself says at para. 8-38 that Deputies for personal welfare decisions will only be required in the most difficult cases where important and necessary actions cannot be carried out without the court’s authority or there is no other way of settling the matter in the best interests of the person who lacks capacity to make particular welfare decisions. The most recent case on personal welfare Deputyships is the case of G and E v Manchester City Council and F [2010] EWHC 2512 a decision of the Honourable Mr Justice Baker, and I refer to parts of paras. 56 and 57:

In the case of JK there was a single issue to be properly determined by the court, which was where should he live, and therefore the appointment of a Deputy to resolve that issue would not have been appropriate in any event. As I read the Act and the Code and the authorities, the place of Deputyship is to fill a legal vacuum when there are a number of non-contentious decisions to be made and as a matter of law someone needs to be given a legal status to make those decisions. When I say as a matter of law, it may be as a matter of essential practicality as well. Appointment of Deputies for the property and financial affairs of incapacitated persons is common because it is difficult to find otherwise a legal status to receive the income and pay the bills. However, whilst each case must always turn on its own facts I think it would be very rare for the court to consider it right to delegate its issue-resolving function to a Deputy on any significant issue of principle such as residence, type of care, treatment and such like. The role of resolving such issues must remain with the court of justice.

Not mentioned in G v D, but I think relevant, is Article 8 of the Convention rights because I do think that putting in place a State-appointed decision-maker – which is what a Deputy is – is a considerable interference with family life and would therefore have to justify the twin requirements of legitimate aim and proportionality. One can never say never, but it is hard at the moment to envisage how in most cases a Personal Welfare Deputy could ever be so justified.