LC, Re (Rev 2)

The proceedings concern Mrs C’s best interests in relation to residence and her contact with her husband and a deprivation of her liberty.

I gave an indication of the decision at the conclusion of the hearing. However, a detailed written decision is appropriate because of the court’s concerns and the need for factual clarity moving forward.

There is also in existence a separate application by the local authority for a deputy for property and affairs to be appointed for her.

This decision is structured under the following headings:

The parties to the application are as follows:

This case concerns the residence, care, matrimonial contact and liberty of Mrs C who presently resides at S Care Home.

Mrs C’s first language is Italian but she understands and speaks English.

Mrs C is a 74 year old woman with a diagnosis of dementia, diabetes and stroke-related illness. She suffers from double incontinence and poor mobility. She is said to require 2:1 care for transfers and some personal care. She has difficulties swallowing but can feed herself. Her communication is limited in the main to one word answers.

Mr and Mrs C met when he was 11 years old and she was 13½ years old. They had to wait for permission to marry until he was 21. They came to England in 1965 and have lived here since. They have now been married for over 50 years.

Until June 2010 Mr and Mrs C lived together in a 3 bedroom property. Mr C still lives in the matrimonial home.

In June 2010 Mrs C was receiving 48.5 hours of care at home per week arranged by the Applicant local authority.

The Applicant’s case is that it experienced significant difficulties in delivering a care package because of her husband’s conduct. In particular, he was frequently drunk; verbally and physically aggressive to his wife, punching her ‘on at least one occasion’; extremely critical of and aggressive to her carers, ‘both physically and verbally’; prevented them from delivering care; and had unrealistic expectations about what could be delivered.

On 16 June 2010 there was an incident in which a carer reported that Mr C punched his wife in the face. It seems that he was angry and frustrated by her failure to eat because as he was being led away by the police he said, ‘She’ll die if she doesn’t eat’. Subsequently, Mr C pleaded guilty to assault and was given a community sentence.

Following this incident Mrs C was taken to S Care Home as a place of safety and she has remained there since that time.

Mr C’s mother and father both died shortly before the assault. He told me that at this time he was bereaved and exhausted and drinking heavily.

Although Mr C disputes it, I am satisfied (on Ms EF’s evidence) that his wife did not wish to see him for some considerable time after the assault. A meeting between them at the care home following the incident was very fraught indeed and Mrs C’s reaction was such that her husband had to be asked to leave. She was frightened and it was clear that she did not want any contact.

It was some 8½ months before Mrs C wished to see her husband. Their first meeting after this lengthy separation was also a difficult one. Mr C became angry when his wife said that she did not wish to return home with him. He expressed this by saying that he was going to hang himself.

Gradually the couple have been able to rebuild their old relationship and now greatly enjoy their time together.

The current arrangements are that Mrs C goes to the matrimonial home twice a week for up to four hours and her husband is able to visit S Care Home whenever he likes.

The couple have ‘supported rather than supervised’ telephone contact at Mr C’s instigation. Mrs C does not have the capacity to initiate a telephone call.

The parties agree that Mrs C lacks the capacity to make her own decisions about her place of residence, care, marital contact and liberty.

In addition, it is common ground that she lacks capacity to manage her property and affairs and the local authority has applied for a financial deputy to be appointed.

The court must determine Mrs C’s best interests in relation to these disputed matters.

The decisions which the court may make on Mrs C’s behalf are constrained by what are called ‘public law considerations’. It is for local and other public authorities, not judges, to decide how to allocate limited resources between competing claimants, provided they do not act so irrationally that it constitutes acting unlawfully, etc.

In this case the local authority cannot afford or will not fund a package of care at home which costs more than £700 per week. More particularly, the local authority will not fund 24 hour care in the matrimonial home.

This court does not have the power to review the lawfulness of this financial needs assessment and it has not been challenged by any of the parties by way of judicial review.

I must proceed on the basis that the local authority’s financial needs assessment in this respect is lawful and binding on me unless and until it is set aside by the appropriate court or modified by the local authority, if ever.

Having regard to the level of funding and services available to her and the parties’ submissions concerning her best interests, I must decide which one of the following three options is now in her best interests with regard to her place of residence:

If I decide that it is in Mrs C’s best interests to continue to reside at S Care Home then in addition I must consider whether it is in her best interests that she continues to be deprived of her liberty there under a standard authorisation issued by the local authority.

If it is, I may attach or vary conditions to the authorisation if it is in her best interests to do so. More particularly, I must consider the issue of contact with her husband. The only dispute between the parties has been whether the contact needs to be supervised or just supported.

Finally, as soon as practicable, I must make a decision on the local authority’s application to be appointed as Mrs C’s deputy for property and affairs.

The following additional matters may be highlighted by way of introduction:

The local authority invited the court to conclude that it is in not in Mrs C’s best interests to return home. Furthermore, it is in her best interests for all contact with her husband to be supervised ‘due to Mr C’s lack of insight into Mrs C’s needs’.

The local authority submits that the reasons why it is in her best interests to continue to live at S Care Home include the following:

Mr C indicated that he would prefer more support for his wife at home than that which could be purchased with a £700 per week budget.

Notwithstanding that unsatisfactory situation, it was in his wife’s best interests to return to the family home. The benefits of reuniting husband and wife outweighed any risks caused by perceived deficits in local authority provision. He would make necessary arrangements to care for his wife with whatever support was provided.

As to his own conduct, Mr C acknowledged that he used to drink too much. However, he has not drunk at all since shortly after Mrs C left home and this has had a beneficial effect on his ability to control his mood and temper.

Notwithstanding his ‘ups and downs’ with his wife’s carers in the years leading up to her removal in June 2010, the local authority’s clear view throughout that period was that it was in Mrs C’s best interests to remain living with him in the family home.

He accepted and understood that if Mrs C came home he must:

If the court did not declare that it is in his wife’s best interests to return home, he maintained that her needs are not being met in her current care home. Therefore, it is in her best interests to explore local alternatives.

Contact arrangements should remain broadly the same. However, it would be better for Mrs C to have some privacy with her husband during contact visits, either in the care home garden or in a separate room within the family home.

The local authority’s handling of Mrs C’s case was subject to unacceptable delay and the making of procedural applications which were not in her best interests:

The Court received a 1500-page bundle of documents which included applications and application notices, orders, directions, position statements, capacity assessments, witness statements, exhibits, correspondence, a jointly instructed independent social work report prepared by Mr Keith McKinstrie dated 17 January 2014 [D/21] together with an Appendix dated 19 February 2014 [D/65], a jointly instructed independent SALT report prepared by Ms Adriana Noble dated 14 May 2014, Scott Schedules/Particulars of Allegations and prescribed Deprivation of Liberty forms. In my view, it is fair to say that the bundles were confusing and the court worked from two different bundles.

Oral evidence was given by Ms AB (Social Worker, Senior Practitioner); Ms CD (Registered Manager, S Care Home); Ms EF (social worker); Mr Keith McKinstrie (jointly instructed independent social worker); Mr C (husband); and Mr GH (family friend). Counsel then made oral submissions at the conclusion of the oral evidence.

The law to be applied in a case such as this was not in dispute and therefore I shall keep this section of the judgment as short as reasonably possible.

Article 5(1) imposes a positive obligation on the state to protect the liberty of its citizens.

Article 5 is engaged where an incapacitated person is deprived of their liberty. A proper authorisation or court order is required, which in this case is the standard authorisation.

Article 8 provides a qualified right that everyone has the right to respect for their private and family life, home and correspondence.

Any interference with Mrs C’s family or private life must be authorised by law, proportionate ('necessary in a democratic society') and for a permitted purpose, e.g. for the protection of her health. Due weight needs to be given to this when reaching the overall conclusion on best interests and assessing whether any proposed interference with family life is justified and proportionate.

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 [2011] EWHC 413 (COP) at para 15(3), be a proper, factual basis for concerns.

Once this court has completed its analysis of Mrs C’s best interests, it must satisfy itself that any infringement of her Article 5 and/or Article 8 rights which arises from its (provisional) conclusion is necessary and proportionate: see K v LBX [2012] EWCA Civ 79 at [35].

The statutory principles set out in the Mental Capacity Act 2005 are well-known to the parties.

Very briefly, 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.

The application of the last two principles are relevant to this case.

For the purposes of the Act, a person lacks capacity in relation to a matter ‘if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.’

It is common ground that Mrs C suffers from dementia and lacks capacity to make the relevant decisions for herself.

The correct approach to determining questions about what is in Mrs C’s best interests is set out in Section 4 of the Mental Capacity Act 2005:

In the case of ITW v Z [2009] EWHC 2525 (Fam) at para. 32, 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:

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) at para. 35:

In the Neary case (The London Borough of Hillingdon v Steven Neary and Mark Neary and Others [2011] EWHC 1377 (COP)) at para 24, Peter Jackson J reminded local authorities, the courts and others of the importance of family life and the significance to be attached to it:

In Re MM Re MM; Local Authority X v MM (by the Official Solicitor) and KM [2007] EWHC 2003 (Fam), [2009] 1 FLR 443, paras 115-121, the President stated:

In Re: GC [2008] EWHC 3402 (Fam), Hedley J considered whether to allow an elderly man to be discharged from hospital to the home where he had lived for many years with his nephew KS, notwithstanding that there were serious though entirely unintentional shortcomings in the care provided by KS. Hedley J commented:

In connection with the issue of a trial placement, the Judge commented at paragraph 24:

The best interests test is concerned with the best interests of Mrs C and not the best interests of another person. The need for a balance-sheet approach is set out in the case of Re S (Adult’s lack of capacity: carer and residence) [2003] FLR 1235.

The relevant codes of practice are the Mental Capacity Act 2005: 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). The codes do not have statutory force but professionals and some carers must have regard to their provisions, and the courts must take them into account where relevant: see section 42.

I accept that this court cannot direct the local authority or the NHS to provide services which they have assessed that Mrs C does not require or which, having regard to their resources and the claims of other citizens, they have decided at their reasonable discretion not to provide.

The relevant Mental Capacity Act provisions can be found in sections 4A, 21A, Schedule A1 and Schedule 1A.

The underlying rationale of the legislative framework is that it is a protective scheme.

Schedule A1 to the 2005 Act provides that a person may only be deprived of their liberty under a standard authorisation if they meet six statutory requirements: age, mental health, mental capacity, best interests, no refusals, eligibility.

The requirement in issue here is the best interests requirement.

This is in reality four requirements masquerading as one. It is satisfied only if all of the following four conditions are satisfied:

The applicant’s case was that professional carers had experienced significant difficulties in delivering the care package as a result of Mr C’s conduct.

Mr C made the following admissions in his position statement, in essence pursuant to rule 94 of the Court of Protection Rules 2007:

Mr C did not accept that he has assaulted or deliberately harmed Mrs C other than on the occasion resulting in his conviction.

With regard to the findings sought by the local authority at the beginning of the trial, some of which were subsequently abandoned for want of supporting evidence, the court makes the following findings and observations:

Having regard to the above, and by way of summary, the following conduct on Mr C’s part is either formally admitted or found by the court on the balance of probabilities:

Having summarised the legal framework and made relevant findings, I must consider Mrs C’s best interests.

So far as reasonably practicable, Mrs C has been permitted and encouraged to participate as fully as possible in the decision-making process. She has had opportunities to express her wishes and preferences and has done so.

I find that it is unlikely that Mrs C’s capacity will improve so as to enable her to make this particular decision for herself. Her condition is progressive. Therefore, a decision must be made for her now, by me, in her best interests.

It is Mrs C’s best interests in the context of her wishes, feelings, beliefs and values that is important.

In taking her wishes and feelings into account, I have considered the case of ITW v Z, (Footnote: ¹) the degree of incapacity, the strength and consistency of her views, the likely impact of knowing that her wishes and feelings are being overridden (if my decision is contrary to her wishes), the extent to which her wishes and feelings are rational, sensible, responsible and pragmatically capable of sensible implementation, and the extent to which her wishes and feelings can properly be accommodated within the court's overall assessment of her best interests.

There is no dispute that prior to her move to the S Care Home in June 2010, and during the many years she had capacity to decide where to live, Mrs C consistently expressed the view that she wished to live with her husband in the matrimonial home.

I find that Mrs C did not wish to see her husband after the assault for a period of up to 8½ months.

The local authority submitted that Mrs C’s dementia has progressed to a level which means that her responses are not reliable. As a result it is difficult ‘to ascertain a concluded view’ about her wishes and feelings on the issue of residence.

When Mr McKinstrie interviewed her at S Care Home in December 2013 he concluded that it was difficult to be confident about her wishes with regard to her future residence and care. The evidence of her wishes since then is, I think, somewhat clearer.

In my view, far too much was made by local authority professionals of perceived past displays of anxiety and distress on Mrs C’s part when her husband’s name was mentioned. Her current social worker opined that it should not be assumed that Mrs C wants to live with him ‘because of records I’ve gathered. I can’t substantiate it but there are situations where people who have been abused cannot get out of it’.

The same social worker told me that there was no indication that his wife wished to remain at the end of her visits home and she is happy with the current arrangement. Furthermore, according to the care home manager, in the past she was not obviously distressed by not visiting home.

In fact, as counsel for the Official Solicitor noted, she is appropriately downcast at the end of her visits home. She now enjoys a good relationship with her husband whereas previously there had been a lot of tension in the house.

The fact that Mrs C may find it distressing to talk about emotional subjects such as her husband and her home does not mean that any distress is a manifestation of fear or anxiety caused by the thought of returning to live with him. Although her social worker sought to make this connection, the cause of her distress could be some other reason, such as unhappiness at being separated from him and her home. Her social worker was unable to give a coherent answer when questioned about this possibility despite the question being repeated by counsel for the Official Solicitor.

I find this to be the more likely explanation. Mrs C appeared to be happy and content at the matrimonial home during the visits undertaken with Mr McKinstrie and Ms Noble; she is more animated and verbally responsive when at home; she often expresses a wish to have telephone or face-to-face contact with her husband; she is generally responsive to Mr C and initiates affectionate contact towards him; she consistently stated to Ms Noble that she wished to live with her husband; and she consistently stated to her solicitor in January 2014 that she wished to live with her husband (she said ‘no’ twice when asked if she wanted to stay at S Care Home and on one occasion when asked where she would like to live responded ‘somewhere else’). Mr GH (an impressive witness) also told me that she is much more responsive at home than in the care home. He had three very good conversations with her during lucid moments between mid-November and mid-December 2014. He asked her if she was happy at S Care Home and she said, ‘Not really’ and indicated that she wanted to go home. He was told by S Care Home not to ‘badger her with such questions.’

Mrs C’s social worker told me that Mrs C is similarly affectionate with her as with her husband: ‘I’ve read that and she does that to me’.

I am afraid that I find that Mrs C’s social worker’s view has become rather entrenched. Her eighth witness statement (sic) of 23 December 2014 includes passages such as:

The use of exclamation marks in a social work witness statement, and terminology such as ‘disingenuous’, ‘glowing exposition of Mr C and ‘promptly contradicted himself’, together with a failure to see any disadvantages to the separation of a couple who have been married for 50 years, and the submission of eight lengthy statements, is a concern for me.

It seems to demonstrate a fixed view of Mr C and the rightness of the local authority’s view which is not open to alternative explanations and strategies and allows little to no space for exploring home-based care in any meaningful way. I was also concerned by the social worker’s apparent confusion as to the difference between supervised and supported contact. For all these reasons I have given relatively little weight to the allocated social worker’s interpretation of Mrs C’s wishes and feelings.

On the balance of probabilities I am satisfied that Mrs C’s present wishes and feelings are that she would prefer to live at her own home with her husband. I accept of course, and it is not disputed, that she is unable to understand, retain and weigh highly relevant information about how this might be organised (if at all), the risks involved in a return home in terms of the sustainability of a home care package, who would provide care there, the likely living and care arrangements and the financial implications for her and her husband. Nor, in my view, can she weigh the more refined issues associated with whether she might prefer increased time at home rather than a complete return home.

I find that Mrs C is settled at S Care Home and is fairly contented there in the sense that she is suitably cared for and physically comfortable. The home has the benefit for her of a number of Italian-speaking staff and residents. She sees her husband often.

None to my knowledge other than marriage contract and the purchase of a family home jointly with her husband.

Mrs C’s marriage vows and her long commitment to her marriage are evidence of her beliefs and values. Mr and Mrs C take a traditional view of marriage and their vows, and have never regarded it as a provisional and reviewable arrangement which could and might be brought to an end by divorce or voluntary separation. A marriage such as theirs is ‘creates a relationship of mutual and reciprocal obligations, typically involving the sharing of a common home and a common domestic life and the right to enjoy each other’s society, comfort and assistance.’ (Footnote: ²)

Mr C and Mr GH gave oral evidence.

Mr C told me ‘I couldn’t bear to live without my wife’ and his devotion was clear.

He is not able to survive on his own pension at home. The combined income from both their pensions and benefits is needed to make ends at home meet. He has light and heat on in only two rooms. He is now in significant (and increasing) debt. The matrimonial home will have to be sold if his wife does not return home. Indeed, with the debts increasing, he tried to sell it in order to buy a bungalow but was unable to do so as it is in joint names. A bungalow would also be better given his wife’s mobility issues.

Despite the formal admissions made on Mr C’s behalf, he denied some of the formally admitted matters when questioned.

With regard to the assault, he said that he got upset when his wife did not want to eat; she needed to eat. ‘I did not touch my wife. I banged the table with my fists. I can’t remember if I pushed her with my hands. I pushed the wheelchair.’ He pleaded guilty in order to be able to go home. He ‘didn’t know’ if the carer witness had been making up what she claimed to have seen him do.

With regard to his conduct towards carers, he had not lost his temper with a social worker or carer in the past four years. He denied that at home he became angry and upset when challenged: ‘Never, I was never angry with them’. ‘I would not call them arguments …’ But, later, ‘If things are not done in the way I expect I lose my temper. I want what is best for my wife’. Then, there had been ‘misunderstandings’ with staff, for example when they said that they not him had to wash her. He had only prevented one carer from coming as far as he remembered. He had never been told that agencies did not work with him. ‘All I can say is that I’ve never been aggressive to anyone at all … maybe words … perhaps my voice is loud’. He had not sworn, shouted or slammed the phone down. ‘I’m always nice and kind to everyone. I can improve but I cannot change the way I am.’

With regard to his willingness to allow other carers to provide certain types of care, he was equivocal: ‘My wife is only to be touched by me … I’m willing to do it, I don’t want anyone to do it’. Then, later in his evidence: ‘I am willing to accept a carer touching my wife, not a problem’. At one stage he said that his wife had not wanted professional carers to touch her and would become upset if they tried to toilet her. ‘I never told them to stop’. Now his wife would accept someone else changing her. He would ‘need help’ changing and toileting her, implying perhaps that he and a carer would jointly do it.

On the other hand, he accepted that his wife’s condition had deteriorated since her admission to S Care Home and his own health is now such that he cannot provide much personal care. Although he takes tramadol for a shoulder injury and has a belt to support his back, this injury does not affect the care he gives his wife. He wears a belt to support his back.

Mr C denied that he had ever been stressed by looking after his wife at home. He had never shouted at his wife or got upset with her. Caring for his wife at home ‘would not be challenging for me’.

He has stopped drinking and now ‘I have more insight’. ‘I have more control than in the past, I am a different person’. He would accept professional advice and would allow professional carers to provide care. He would co-operate ‘100%’.

He told me that he believes that his wife’s condition would improve if she came home although she would not be the same person as before. She ‘can improve a lot’. As to her mobility, ‘I’d make her walk more’.

He never believed that his wife did not want to see him during the 8½ months following the assault.

He suggested using family and friends to provide care if his wife comes home, each of whom would stay for up to three months at a time. He mentioned three sisters and sister-in-laws, ‘Mr GH’s wife’ in an emergency and ‘a lady called Ms M (he had not discussed with her how much help she could provide). D had not seen Mrs C since she was last at home. None of the Italian relatives he proposed speak any English.

He denied that he had called Ms M ‘the most selfish person’ when she would not cancel a medical appointment she had been waiting six months for in order to assist his wife. He had not asked the three sisters to provide letters for the court. ‘If my wife comes home I could ask around for more people … and spread the word around.’ He would pay for carers’ food and consider the costs of flights for relatives to come over from Italy.

I thought that Mr C generally did very well under quite a long period of questioning. His devotion, his sense of marital duty and his desire to care for his wife were extremely impressive. However, much of his evidence about recorded (and formally admitted) past problems was equivocal at best. When faced with having to admit or deny a well-evidenced event, I thought that he tended to panic and to resort to bare denial in preference to conceding a point which he felt risked weakening the case for having his wife home.

On balance, I think that he realises the truth of much of what is well-evidenced with regard to his past conduct — otherwise why say, ‘I have more control than in the past, I am a different person, ’ ‘I have stopped drinking,’ ‘I have more insight’ and why sometimes acknowledge it — but emotionally he will find it very difficult indeed to keep his sincerely-meant promises with regard to his future conduct.

Mr GH has worked in the field of welfare advice since 1996. He has known the C family since long before then. He has given Mr C a huge of amount of advice and help in his own time, including financial help. He was a very impressive witness, compassionate, practical, measured in his assessments.

Mr C had contacted him in the past about home carers who were unreliable attenders. He wanted help to get new carers in. The social workers at that time were all very good and understanding; ‘I don’t have a bad word to say about any of them’.

Mr C was fiery, he barked a lot, but did not bite. He had ‘mellowed down a little’ in recent years and probably realised the errors of some of what he did. He would do anything to get his wife home, including giving up drinking at the end of 2010.

Mr GH told me that Mr C has probably understated his debts. Currently Mr C had a shortfall of around £200-300 per month in terms of outgoings and receipts. The sale of the family home fell through in July because the June hearing did not take place (upon the case’s transfer to the High Court, see above).

Mr GH was willing to make inquiries of the local Italian community to see if people would sit with Mrs C at home.

A full-time return home for Mrs C would probably be difficult now. ‘Perhaps a whole weekend at home would be feasible and slowly increasing the time there.’ ‘I think she would welcome more time at home.’

I heard oral evidence from Ms EF (a social worker involved in Mrs C’s case during the period of home care leading up to her removal to S Care Home), Ms AB and Ms CD, who managed S Care Home.

I also heard oral evidence from the jointly-instructed independent social worker, Mr McKinistrie.

I was very impressed by Ms EF’s evidence. She had a thorough grasp of the history and relevant facts, was analytical and concise but also warm and very compassionate towards both Mr and Mrs C and their predicament.

When they were at home she approached what was a difficult, high-risk, situation by trying to support them as a couple through identifying ways of reducing the stress on the carer Mr C, such as day care, carer breaks, respite, building in sleep time and so forth.

Unfortunately Mr C never agreed to day care because he did not trust paid carers to look after his wife properly (‘This is my wife. I need to look after her’). He had been with her for many decades and felt that he was the only one who knew how she liked things to be done.

A number of care packages broke down, broadly speaking for the same reasons. ‘Paid carers were late sometimes or on holiday or did not come into work. Panic and frustration led to aggression which most care agencies will not tolerate.’ It became difficult to find carers who were willing to go in.

Attempts to resolve the problem by utilising direct payments with a view to constructing a more personalised care package did not work for the same reasons (arriving late, going on holiday, not coming in). It was distressing for Mr C.

Attempts to identify family or people in his community to support him did not lead to anyone being identified or coming forward.

Mr C could be quite controlling. He attempted to take over virtually all aspects of his wife’s daily care and this included personal care which she could have provided herself with if encouraged to do so. Her demeanour and presentation changed markedly on admission to S Care Home. At home she had fallen out of bed and required a lot of personal care. At the care home she did not require cot sides, was able to walk throughout the care home and to toilet and feed herself. It was ‘amazing to see her engaging with other people’.

After his wife’s removal, Mr C blamed Ms EF for taking Mrs C to a care home (‘You took my wife’). Ms EF did not take that personally (‘He slammed his fist on the table and was swearing. I don’t blame him for that’) and took steps to try to ensure that Mr and Mrs C enjoyed regular good-quality contact.

He could not comprehend that his wife did not want to see him.

Ms EF aside, I have several concerns about the way in which the local authority prepared its case and about the quality of some of its evidence:

As the Official Solicitor submitted, it was clear that the local authority had seen the case as an open-and-shut situation. From the start they thought it was obvious that Mrs C could not return home. The local authority had prepared only the most sketchy alternative to residential care which placed the court in a difficult position.

The written views of the independent social worker, Mr Keith McKinstrie, were set out in his report dated 17 January 2014 [D21-64], supplemented by an addendum dated 19 February 2014 [D65-70]):

Mr McKinistrie confirmed that the opinions set out in his main report and addendum report (D/21-64 and D/69) were his opinions at the time they were given. However, almost a year had elapsed since then.

He emphasised the importance of having a single support plan in place rather than a ‘patchwork of care’. Any proposal to use family members and volunteers only made this more necessary. The more people contributing to a care plan the greater the need for a clear care plan which carers must adhere to before they contribute to care. The local authority would be the natural care manager.

Mr C’s strongly held views meant there was a significant risk that any attempt to construct a single joint informal care/paid care plan would fail because of significant differences of opinion about the appropriate way to deliver care to Mrs C.

Because of Mrs C’s medical condition consistent and understandable care was fundamental. If people toileted her in different ways she would be confused and unable to co-operate with the steps and procedures. Not being able to understand what was expected of her would lead to more incontinence ‘accidents’ and her confusion would also further reduce her residual self-care skills.

In Mr McKinistrie’s experience having informal carers working with and alongside paid carers tended not to work very well in practice. The agency employing the paid carers had duties to them under health and safety regulations which placed the agency at risk where a paid carer undertook tasks such as transfers with a family member. These regulations were ‘well-based’ rather than mere bureaucracy.

It was ‘very rare’ that informal care networks of family members, friends and volunteers were sustained. Providing free continence and personal care over a sustained period was a significant burden. Unpaid carers had other personal, family and work commitments which were likely to cut across Mrs C’s care. Unpaid carers would need to be trained in key areas such as handling, transfers, feeding, skin integrity, diabetes. Moving and handling could be two days training. The cost of training would need to be met.

On the issue of whether two carers at home were required day and night, Mr McKinistrie had not seen a thorough risk assessment dealing with how Mrs C’s care needs could be met at home. At S Care Home two carers were available all of the time but not providing care all of the time.

It was important to have a multi-disciplinary risk assessment (social worker, OT, SALT, physiotherapist, nurse, GP if involved) which clearly set out what care Mrs C requires, the likely consequences if she does not have that care, how these risks can be mitigated, why Mrs C needs two carers, when she needs them and the risks to her if she does not have that level of carer input. Mr C’s views needed to be included.

It would be easier for Mrs C to move back home, which was a familiar environment, than to move to another care home unfamiliar to her. The transition plan was the important thing. A trial period at home should not be dismissed out of hand but was only possible if a full risk assessment demonstrated that adequate care at home could be provided and the risks were acceptable. An increase in the duration and frequency of her visits home might be the starting point.

Mr McKinistrie was asked to consider the possibility of a home care package based on professional care first thing in the morning; attendance at a day centre between say 9am and 5pm; professional care during the early evening; one or two visits at night for toileting; and the balance of care at weekends (including nights) being provided by family and friends. It was worth considering, he said, but whether it was ‘doable was the problem’. It would have to be properly risk-assessed by a multi-disciplinary team and demonstrated to be practicable or impracticable. While reuniting her with her husband was an important principle that could not be at the expense of her safety, which was the other key principle: ‘The goal is safety — if that coincides with Mrs C being at home, that’s good’. Mr McKinistrie was not aware of any agencies that provided a change pad service at night.

Mr McKinistrie was questioned closely about whether he had modified or softened his opinion concerning the possibility of a return home since he wrote his two reports.

I found him to be an impressive witness for the same reasons as Mr GH and Ms EF. He was right to refer the court to the continued absence of a thorough multi-disciplinary risk assessment. Extra evidence is available since he wrote his report, partly because of the delays. Because he swears to give true evidence, he is also entitled to reflect on, review and modify his opinion as he thinks fit.

Given Mrs C’s wish to spend more time with her husband and her attachment to her home, the court considered possible ways of enabling this. The court raised and explored various alternatives with the parties some of which are not often available given the state of public finances. These included:

If Mrs C returns home her husband’s views about the benefits of trying to help her to mobilise mean that there is a risk of injury to her. This is a significant present risk (although it may be that he can demonstrate over time that he is able to follow mobility guidelines which he disagrees with).

There are always some risks associated with swallowing and feeding in the case of people who have dementia, both in and outside care homes, but the evidence that such risks are significant and attributable to Mr C’s conduct was poor.

Mr C is himself in his 70s and has had some significant health problems of his own.

Mr C has capacity to accept risks to his own health.

Therefore, my only concern in relation to his health is how long he would be able to continue to provide the care for her that he will have to provide if she returns home, including night-time continence care.

Given the lack of local authority financial support relative to his wife’s assessed care needs, I think that it is unlikely that he could sustain this for very long without his own health and conduct being compromised. It would be gruelling for him and growing frustration and anger at the lack of local authority support would be a natural, indeed almost inevitable, consequence.

There has been no assessment of Mrs C’s entitlement to NHS Continuing Healthcare. I can only proceed on the basis that the nature, intensity, unpredictability and complexity of her needs are not of a level which indicates a primary need for healthcare.

Despite having had a long time to obtain it, there was no evidence on life expectancy or prognosis, in terms of rapidity of decline and future care needs.

As the hearing progressed I felt that the ‘third option’ of a move to another care home was not really pressed.

Mr C did tell me that he was not very satisfied with the quality of care at S Care Home. In particular, he sometimes finds that his wife is wet. However, overall, I was satisfied that S Care Home provides Mrs C with a reasonable and acceptable level of personal care. Given the well-known risks of moving people with dementia to unfamiliar settings, a move to another care home because of this unparticularised concern would not be in her best interests.

The care home numbers Italian speakers amongst its staff and residents and is on a bus route to the matrimonial home. Mrs C is settled there and a different care home would not be likely to have significant advantages.

In one very legitimate sense, Mr C has every right to expect paid carers to be reliable and professional and to adhere to agreed care plans, visiting times, etc. Unfortunately, as he himself knows, this is often not the case. That is consistent with what I hear in this court on a regular basis. It is very unlikely that he would not have to experience and cope with similar frustrations if his wife returns home.

I accept the following findings as being in favour of continued residence at S Care Home:

I accept the following findings as being in favour of a return home:

In my view, there is merit to many of these points. However, it remains the case that:

Turning to the deprivation of liberty best interests requirement, I find that the four conditions relevant to that requirement are satisfied:

It was common ground that she is and the court agrees. She is subject to complete and effective control over her care and movements and is not free to leave.

I have already explained why I find that it is. At home Mrs C would not receive the care which she requires as matters presently stand. There are four main reasons for this: the local authority’s funding decision (which I am bound to accept); the lack of a working relationship between Mr C and professional care providers which I can rely on to deliver care at home from week to week; the fact that Mr C has not been able to construct a realistic alternative care package; significant concern about whether Mr C will be able to cope with the stresses of being a significant carer for his wife and the possible effect of such stresses on his conduct.

I find that it is because at present a return home would entail real risks to Mrs C’s physical health (continence care and skin integrity; risk of bruising due to impaired mobility and/or attempts to deliver single-handed care) and mental health.

The risk to her mental health is that home life will be stressful and punctuated by frustration and disagreements about her care. At this time the best quality of contact with her husband would not, in my view, be achieved by a return home. Their contact at home during the period leading up to the assault was fraught with difficulty and stress. They have a better relationship once more now that contact is less intense and their time together is not by undermined by frustration.

A continuance of residential care at S Care Home is proportionate in my view having regard to the risks which I have mentioned.

I would be surprised if circumstances change sufficiently in future for me to be able to decide that it is in Mrs C’s best interests to return home. At the same time, it is likely that more can be done to explore ways of increasing the amount of time that she can spend at home with her husband.

In my view, the following steps would be in her best interests:

An application has been made by Mr Rakesh Mattu of Premier Solicitors, Bedford, to be appointed as Mrs C’s deputy. He describes his relationship with Mrs C as ‘Solicitor appointed by the local authority’. Mrs C’s social worker provided the capacity assessment.

I assume that this means that this local authority does not take on deputyship orders and has an arrangement with a local firm or firms of solicitors. There is no indication of whether Mr C was considered.

I do not consider that it is likely to be in Mrs C’s best interests to have as deputy a ‘solicitor appointed by the local authority’. While no doubt Mr Mattu understands his professional obligations, the probable need to sell the matrimonial home, the use or investment of the proceeds of sale and care funding issues may well give rise to a conflict of interest. I can be more specific if required.

While generally a spouse with capacity would be the preferred deputy, I think there is much to be said in this case for appointing an independent deputy, at least for the time being. It seems to be the case from the oral evidence that Mr C has incurred significant debts maintaining the family home and providing food for his wife’s visits, etc, which in essence are actually joint liabilities. If so it may be appropriate and in Mrs C’s best interests to settle them from the proceeds of sale of the matrimonial home. An independent deputy can assess this and advise the court. The deputy can also make the necessary application under section 36(9) of the Trustee Act 1925 with regard to the sale of the matrimonial home.

Once debts have been paid off and a bungalow purchased (if that remains the plan) there will be some certainty as to where home will be in the future and some reduction of the great stress that Mr C is under. It will also be clear what resources are left, in terms of capital and income, to supplement home visiting and home care. Knowing that is really a starting point for any sustainable arrangement moving forward. One also needs to know how much benefit Mrs C will get from visits to a new home: it will not be the home to which she has long been attached but it will have many familiar things in it. Realistically this will take between 6 and 12 months.

In my view, and as indicated, it is not realistic to consider a return home at present given the lack of local authority funding, the lack of a sustainable alternative care package, the uncertainties regarding the sale of the family home, the poor working relationships and doubts about how Mr C can deal with future frustrations.

There is reason to believe that Mrs C would enjoy more frequent visits home if these can be arranged. One problem, which the deputy will need to address, is that Mr C cannot easily afford increased visits because his benefits do not stretch to financing food and similar basic expenditure. It seemed to me that he is living in poverty. There is Mrs C’s ex gratia payment which can be utilised.

If, and it is if, a programme of visits to the new home increasing to three times a week is successful in the sense that (a) Mrs C is enjoying this increased time at home and (b) Mr C is able to demonstrate that he can comply with reasonable and agreed professional guidelines without significant incident, then in my view it would be in Mrs C’s best interests to consider a trial period at home in the unlikely event that a package of care can be constructed by Mr C or on his behalf which is affordable and likely to be sustainable. Such a care package would need to make suitable provision for night-time and weekend care and be risk-assessed by a multi-disciplinary team, in the way envisaged by Mr McKinistrie.

It is premature to say that no significant progress can be made in terms of the time Mrs C spends at home and to take a definitive view that her husband’s conduct cannot further improve. It will, I think, be possible to come to such a view once the stresses of poverty and a pending move are taken care of and one can see how he now copies with increased carer contact at home. Given my reservations about the local authority’s approach, it is appropriate for the court to keep the matter under review until it is satisfied that no further significant progress is possible.

In my view, moving forward it is not in Mrs C’s best interests that her social worker’s working relationship with her husband is so strained.

The two primary purposes of attaching conditions to a standard authorisation are to limit the deprivation of liberty to the minimum necessary and where possible to ensure that a care package is in place which may allow or enable their deprivation of liberty to end at a later date.

With that in mind, I intend to attach the following conditions to the standard authorisation:

In reaching my view, I have had regard to section 1 and the need for me to consider whether the purpose for which the act is needed can be as effectively achieved in a way that is less restrictive of Mrs C’s rights and freedom of action. For the reasons given above I do not believe so.

Implicit in the best interest analysis is a consideration of Mrs C’s Convention rights and those of her husband.

I accept that not permitting a person to live at home, and any limitation of family contact and the usual right of spouses to live together, are interferences with Article 8 rights and that they must be proportionate and for a permitted purpose.

In my opinion, the interference is prescribed by law, proportionate (to the identified risks) and for a permitted purpose (his health). The arrangements outlined will protect and promote Mrs C’s health and well-being and hopefully also allow contact with her husband at home to increase in a sustainable way that brings her enjoyment and is in her best interests.

The proceedings have been bruising. I would ask all of the parties to work together over the coming 12 months to see what further progress can be made to improve Mrs C’s contact with her husband. If everyone commits themselves to that it will, I think, become clear what final arrangement is in Mrs C’s best interests.

After handing down the above judgment, I received submissions on the issue of whether it should be published. Mr C and the Official Solicitor (on behalf of Mrs C) requested publication. The local authority opposed publication. My decision was that it be published and I gave the parties my reasons for that decision.