PB v RB & Anor

This decision follows a final hearing held on 8-9 December 2015.

The case concerns the welfare of RB, a 74 year old woman who has dementia. At the present time she lives in a residential care home referred to as E Care Home.

RB has one son (PB) and three daughters (CL, DB and LA).

The primary issue is whether it is in RB’s best interests to remain at E Care Home or to return to her home at R Close.

A third possibility, that she move to extra care supported housing at R Court, is no longer an option because it is unlikely to have a vacancy for some considerable time. R Court could potentially have provided RB with a two-bedroom flat with 24 hour support.

PB specifically seeks orders that:

RB is returned home with a robust package of care;

In the alternative, RB is placed at R Court with an appropriate package of care; and

Certain restrictions on him are lifted or at least varied to allow him to visit his mother between 6pm and 12am on weekdays.

The parties to these proceedings are:

In previous proceedings concerning RB, her daughters CL, DB and LA were also parties to the proceedings, being the third to fifth respondents respectively. They are no longer parties but continue to take an active interest in their mother’s welfare.

The court’s involvement in decision-making on behalf of RB has a long history and Mr Suterwalla’s skeleton argument helpfully included a chronology:

This chronology greatly simplifies the very difficult history in the case which is fully set out in Annex B to this judgment.

The critical document historically is my judgment of January 2013 and the order at the end of it. The underlying purpose of that order was recited within it:

Mrs B is still able to articulate a clear wish to remain in her own home for as long as possible.

Although RB lacks capacity to decide where to live, she is very near the boundary in this respect. Her strong and consistent wish to live at home is to be given very considerable weight.

It remains in her best interests to continue to live at R Close and for care and family contact arrangements to be based around a life at home.

Because her treatment and care needs are relatively simple, ordinarily it would not be difficult for her to live in her own home and to receive such care or help there as she requires.

All of her children, with the possible exception of DB, have behaved unreasonably in relation to the matters before the court. RB feels that they interfere and she does not wish to live with or be looked after by them. She is upset that her children do not get on and are always arguing.

The factor of magnetic importance in this case is to secure an arrangement that enables RB to live at home for as long as her health allows, and to manage any significant risk that she may lose her own home before her health requires that.

The only significant present risk is that family conflict and/or family-professional conflict may make the provision of care at home untenable, for example because the care agency withdraws or because it is seriously affects RB’s health.

It is desirable to try to construct a framework that, as far as possible, addresses the risks posed to the viability of RB’s residence and care plan by her children whilst reducing the need for the case to return to court. It is in RB’s best interests to minimise the need for litigation and court intervention.

The strategy set out in the order included the appointment of the local authority as RB’s personal welfare deputy and a detailed care plan drafted by me which included injunctions and a penal notice, a costs warning and provision for the suspension of contact.

That plan and the hard work of the local authority to implement it has enabled RB to live in her own home for almost a further three years, from 9 January 2012 (when she returned home in compliance with the court’s order) until 24 November 2014 (when she was admitted to hospital following a fall).

The key questions now are whether her wishes and feelings remain the same and whether her needs have significantly increased? Does she still have a ‘strong and consistent wish to live at home’? Is the factor of magnetic importance still to ensure that she can live at R

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 does not matter whether the impairment or disturbance is permanent or temporary.

It is common ground that RB lacks capacity to litigate and to make decisions about her place of residence, contact and insofar as relevant her care.

PB told me that ‘she is able to express her wishes and feelings albeit sometimes with some confusion present’ and to that extent remains near the capacity borderline. I deal with that point later.

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 RB’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 best interests conclusion 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 a 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 RB’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

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,

“Relevant circumstances” are those—

of which the person making the determination is aware, and

which it would be reasonable to regard as relevant.’

The first is that the statute lays down no hierarchy as between the various factors ...

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.

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.

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:

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 casespecific and fact-specific. In some cases, in some situations, they may carry much, even, on occasions, preponderant, weight ... it all depends ... upon the individual circumstances of the particular case (and) ... the weight to be attached to their wishes and feelings must depend upon the particular context …. iii. Thirdly, in considering the weight and importance to be attached ... the court must ... have regard to all the relevant circumstances. (These) will include (but are not) 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

the strength and consistency of the views being expressed by P;

the possible impact on P of knowledge that his 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 his best interests.

More recently, the importance of the relevant person’s wishes and feelings has been considered by Lady Hale in Aintree University Hospitals NHS Foundation Trust (Respondent) v James (Appellant) [2013] UKSC 67 [‘Aintree’] and by Mr Justice Peter Jackson in Wye Valley NHS Trust v Mr B [2015] EWCOP 60 [‘Wye Valley’].

In Aintree, Lady Hale said at para 45:

In Wye Valley, the relevant NHS Trust submitted that the views expressed by a person lacking capacity were in principle entitled to less weight than those of a person with capacity. Peter Jackson J accepted (at para. 10) that this was true ‘only to the limited extent that the views of a capacitous person are by definition decisive in relation to any treatment that is being offered to him so that the question of best interests does not arise.’ However, ‘once incapacity is established so that a best interests decision must be made, there is no theoretical limit to the weight or lack of weight that should be given to the person’s wishes and feelings, beliefs and values. In some cases, the conclusion will be that little weight or no weight can be given; in others, very significant weight will be due.’

His Lordship continued, at para. 13:

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; 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:

… As I said in Re S, at para (48):

We have to be conscious of the limited ability of public authorities to improve on nature. We need to be careful not to embark upon 'social engineering'. And we should not lightly interfere with family life. If the State – typically, as here, in the guise of a local authority – is to say that it is the more appropriate person to look after a mentally incapacitated adult than her own partner or family, it assumes, as it seems to me, the burden – not the legal burden but the practical and evidential burden – of establishing that this is indeed so. And common sense surely indicates that the longer a vulnerable adult's partner, family or carer have looked after her without the State having perceived the need for its intervention, the more carefully must any proposals for intervention be scrutinised and the more cautious the court should be before accepting too readily the assertion that the State can do better than the partner, family or carer.

At the end of the day, the simple point, surely, is this: the quality of public care must be at least as good as that from which the child or vulnerable adult has been rescued. Indeed that sets the requirement too low. If the State is to justify removing children from their parents or vulnerable adults from their relatives, partners, friends or carers it can only be on the basis that the State is going to provide a better quality of care than that which they have hitherto been receiving: see Re F, F v Lambeth London Borough Council (2002) 1 FLR 217 at para (43).

The fact is that in this type of case the court is exercising an essentially protective jurisdiction. The court should intervene only where there is a need to protect a vulnerable adult from abuse or the real possibility of abuse: see Re K, A Local Authority v N and others (2005) EWHC 2956 (Fam), (2007) 1 FLR 399, at paras (90)-(92), and X City Council v MB, NB and MAB (by his litigation friend the Official Solicitor) (2006) EWHC 168 (Fam) , (2006) 2 FLR 968, at para (27). The jurisdiction is to be invoked if, but only if, there is a demonstrated need to protect a vulnerable adult. And the court must be careful to ensure that in rescuing a vulnerable adult from one type of abuse it does not expose her to the risk of treatment at the hands of the State which, however well intentioned, can itself end up being abusive of her dignity, her happiness and indeed of her human rights. That said, the law must always be astute to protect the weak and helpless, not least in circumstances where, as often happens in such cases, the very people they need to be protected from are their own relatives, partners or friends: NS v MI (2006) EWHC 1646 (Fam), (2007) 1 FLR 444, at para (8).

There is one final point to be made. The court, as I have said, is entitled to intervene to protect a vulnerable adult from the risk of future harm – the risk of future abuse or future exploitation – so long as there is a real possibility, rather than a merely fanciful risk, of such harm. But the court must adopt a pragmatic, common sense and robust approach to the identification, evaluation and management of perceived risk.”

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:

RB is being detained in the care home for the purpose of being given care or treatment in circumstances which amount to a deprivation of her liberty;

This is in her best interests;

This is necessary in order to prevent harm to her; and

Her detention in the care home for the purpose of being given care or treatment in circumstances which amount to a deprivation of her liberty is a proportionate response to the likelihood of her suffering harm, and the seriousness of that harm (if she were not so detained).

The two reports of Ms H (C/72 and C/120) were unsatisfactory.

In her first report, Ms H recommended a return home because ‘I cannot ignore the fact that RB wants to go home even though physically she seems to have thrived in her current environment’ (para 17.13).

However, in paragraph 6.4 of the report Ms H recorded that RB wished to leave the care home because ‘I will be able to see my mum and she will be able to visit me more … My mum is not well enough to come to see me, I miss her’. In her addendum report, Ms H states (at para 2.1) that ‘Her reason [for wanting to go home] seems to be based on the fact that she misses her mother and that if she went home her mother would be able to visit her’.

It seems to me that an approach based on the premise that one ‘cannot ignore’ a wish to return home which is based on a wish to be reunited with one’s long-dead mother is unsustainable. Nor does it help the court to say that a service user will require a ‘robust’ care package and ‘a back-up care package’ if she returns home. That is too vague to be useful.

Mr Hatchman (Team Manager) and Mr Fisher (Practice Manager) gave their evidence jointly (referred to colloquially as ‘hot-tubbing’). They confirmed and adopted their written statements.

They told me that RB was consistent in her wish to live at home until around the middle of 2015. That was clear from the Best Interests Assessor report of February 2015, the report of the first Independent Social Worker, Ms H, in April 2015 and, to some extent, the attendance note of the Official Solicitor dated 17 June 2015.

Consequently, in March 2015, Mr Hatchman and Mr Fisher had been of the view that it was in RB’s best interests to return home and that remaining at E Care Home was ‘not an option’. Although her needs had increased they had not increased enough to prevent a return home in accordance with her wishes.

There had been two significant changes since then.

In the first place, RB’s expressed wishes and feelings have become much less consistent. Both Mr Hatchman and Mr Fisher agreed with Dr TS, RB’s consultant psychiatrist, that RB no longer has a clear concept of home and that it has become particularly important to her to feel safe and secure. Her ‘predominant feeling is that she wants to feel safe and secure and she feels that at E Care Home. She needs to know that someone is around to help. On her own she feels anxious or frightened.’

Secondly, RB’s emotional and physical health has stabilised and improved at E Care Home and the benefits of being there had become very apparent. She is now much more content at E Care Home than she was at home previously. She is chatty, ‘more alive and vibrant,’ engaging with others. She has ‘thrived’ there, developed valuable friendships and relationships and ‘become her own person’.

She appears to benefit from a more controlled and structured environment within which she does not have to worry about everyday things in the way she did at home.

The environment is comfortable and safe and she has easy access to the company of people other than professionals and family members. Her children have equal opportunities for visiting because the care home is neutral territory and she enjoys their visits and those of her grandchildren. Having been a carer herself, she involves herself in the welfare of other residents and enjoys this.

She has a proper diet and her diabetes and her weight are at a better level.

All of this, they say, is in stark contrast to the quality of life which she experienced at home and would again experience if she returned to live there. At home getting her out of the house had been ‘a major achievement’. She had been unwilling to attend a day centre and did not develop friendships and relationships. She became withdrawn and possibly depressed in 2013 and 2014, partly because of the difficult family dynamics. If she returned home, she would again be alone for periods during the day because her home is too small to facilitate a carer being present at all times.

It is RB’s support needs, rather than her personal care needs, that have increased since 2012. She now needs people around her and a lot of reassurance, prompting and structured support. She fears being alone and it would not take long for her emotional well-being to decline, possibly as little as 4-6 weeks. Furthermore, given the rapidity of mental decline between around March 2014 and August 2015 referred to in Dr TS’s psychiatric report, it would only be ‘a matter of time’ before she required a move back into residential care.

Because of these changed circumstances, and in particular RB’s enjoyment of the social interaction at E Care Home, her improved mental and physical health there and ‘the complete change in her mood’, both Mr Hatchman and Mr Fisher are now of the view that it is her best interests to remain at E Care Home.

PB’s conduct is not presently a ‘real feature’ (i.e. factor) because his conduct has improved considerably. They would both like to think that he can be involved in providing care at E care home.

Mrs S told me that RB expressed a wish to go home but was confused as to where home is (C/196): ‘I didn’t think she was clear where home was’. She was not saying clearly that she wished to return home.

The historical difficulties at home, the fact that RB is settled at E Care Home and the lack of a clear wish to return to her real home were all relevant considerations.

Mrs S regretted referring to a return home as an ‘experiment’. A better description was that RB would then be in a ‘situation of uncertainty’.

Mrs S was concerned by the risk that RB would be unsettled and confused if she returned home. In saying that, she accepted that probably this was the case with all transitions and also that RB would be returning to a familiar environment. Furthermore, she had been able to adapt at E Care Home.

If RB returned home, there was a risk that she would not be able to return to E Care Home if things did not work out.

In a person’s own home it is particularly important that the individual is motivated to receive care. RB did not always ‘comply’ at home. When at home in the past, she had refused breakfast and refused to get dressed in the morning. At E Care Home, staff could easily pop back later to try again.

As to why RB had been unwilling to go out at home, ‘going outside one’s circle of comfort is difficult for a person who is cognitively impaired. E Care Home took her to a community centre but she became agitated and wanted to go home.’

As to why the care package was not working at home, Mrs S had been struck by the difficulty which carers experienced ‘to get RB to do anything’ at home.

RB might not be willing to have people on hand at home who were not performing a particular care task (‘did not have a specific remit’).

There was a risk of falls but it was unlikely that RB would be left unattended for long provided she had a pendant and carers were visiting regularly.

RB had not demonstrated any propensity to try to cook for herself or to go out unaccompanied.

A person’s ‘self-protective ability’ is very important if they are living alone. RB was now more vulnerable and less able to protect herself compared to when Stewart Sinclair wrote his ISW Report in 2012.

A return home might trigger ‘memories of discordance’ for RB.

Mrs S could not support a sudden cutting-off of night care after one or two weeks if RB returned home.

The main risk involved in a return home was to RB’s emotional rather than physical wellbeing. The task-focused nature of her needs was straightforward. Her need for emotional support and reassurance was not and E Care Home provides for this. Indeed, she probably needs less reassurance at the care home because she can see the staff.

RB now needs a period of peace and tranquillity and a feeling of safety and security. It is important to imagine how she will feel back at home alone. A befriending service would not compensate for the companionship throughout the day that she has become used to. Her coresidents watch television with her, discuss programmes and what is going on.

Although PB has provided an evening meal to his mother in the past, RB did not want him to take on a carer’s role.

PB did not understand his mother’s condition. He has very exacting standards in relation to her care and Mrs S was concerned by his ability to deal with his concerns in a calm way. He is unable to tolerate the realities of late attendances by carers. He made a safeguarding alert to the CQC regarding RB’s dental care at E Care Home.

The fact that the behaviour of some residents disturbs RB is a negative, to the extent it is true.

Because E Care Home has district nursing support, it would be unusual for a person such as RB to have to move from there into a nursing home in future.

Mrs P told me that E Care Home has 30 residents across two floors. RB lives on the first floor with residents who have been there for more than a year. Some of her co-residents have been there for more than eight years and the client population has been stable since RB’s arrival.

The turnover of staff is also small. Ms P has been there for 20 years, her assistant for ten years and all of the other members of staff for at least 2-3 years. Ms P sees RB five to six times a week.

Mrs P has known RB since she entered the care home on 24 December 2014. Transitions are unsettling and initially RB was vulnerable, distressed and lashing out. Her physical health was poor, she lacked motivation and there could be difficulties at night. Her demeanour had improved with improving physical health and a reduction in the confusion caused by a transition. Her physical and emotional health are now stable and she sleeps through the night. The improvement has been very apparent since August.

There can still be times when RB does not want to get up or to have food but things are done at her own pace. For example, if she does not eat at 8am food can be offered to her at 10am.

RB needs support in the form of reassurance from staff. She ‘has adjusted to us, our regular faces seem to reassure her. She has a good relationship with staff, having been at E for a year now. She co-operates with care activities and it is likely that this is because of the relationships she has with staff rather than the environment per se.’

RB ‘has formed very good relationships with other service users. She would miss all of that. They are her friends … we are like her new family … They all sit in the lounge and talk to each other, chatting and joking, holding hands, reassuring each other’.

RB and her co-residents ‘like their regular places at table and RB eats her lunch with four other residents.’ At present RB ‘is a jolly person’ and is ‘generally content’.

RB has a commode near her bed and can get up at night to see to any toilet needs. Staff may assist her to use the commode.

When RB was taken to see R Court, ‘she thought that we were sending her away and was very distressed’. We saw the same reaction when she was taken to see the dentist.

RB never mentions her old home to staff members.

RB’s daughters visit three times a week and they bring RB’s grandchildren.

PB ‘is a nice man’ and ‘he knows he can come to see me’.

At present RB lives at E Care Home as an out-of-GP area respite resident and arranging dental care for her was problematic. The care home had to speak with Haringey and arrange a private dentist.

With regard to PB’s concerns, his mother does watch TV but sometimes she does not want to: ‘why would I make her if she doesn’t want to?’ Residents ‘have a choice of food and she can have West Indian food if she wants to’.

Residents do not routinely walk in and out of each other’s rooms.

In his written evidence, PB told me that ‘While I accept my mum lacks the capacity to make a decision about where she lives, notwithstanding her confusion sometimes I remain of the firm view that her genuine wish is to return home to R Close.’

In his oral evidence, PB said that ‘things went downhill following the injunction in July 2014’.

It was common ground that care at home was not working prior to RB’s admission to hospital at the end of 2014. More particularly, there had been problems since around September 2013. The carers at home did not do the things which the carers in the care home do: ‘The carers at E Care Home know their job and do it’.

When asked to comment on the fact that his mother appeared to be a lot happier and physically better at E than she had been at home, PB replied, ‘It’s down to the carers’. Prior to July 2014 she was ‘as well health-wise as she is now’.

PB had needed to keep on the back of the carers at home, to make sure they did their job. ‘They should know it’.

It was correct that PB’s expectations could be viewed as too high ‘if they [the carers] don’t get up to scratch … If I do it, it’s ok’. He had and would point out poor care to carers if he saw it. He had been justified in complaining to the CQC about his mother’s lack of dental care.

It was true that domiciliary workers tended to be poorly paid and that there was a high turnover of staff. Previously his mother had benefited from three core care workers at home. 104. His mother needs skilled specialist dementia carers at home.

It was not correct that RB was ‘in complete distress’ at home following her fall in November 2014.

There might be a need for 24-hour support if his mother went home.

RB last said that she wanted to go home without prompting sometime prior to April 2015.

However, ‘she knows that I know what she wants. She doesn’t want to keep telling me’. She has simply submitted to the current situation.

A transition home is manageable. His mother might be distressed at times but ‘only for a period, a month’. Although she is now ‘a bit less capacitous’ she adjusted to being back home within a fortnight of returning there from B Lodge. Nights were the key. She is able to get up and use the toilet at night.

At home his mother would have a sense of independence and peace of mind.

It is correct that she needs to feel safe and secure and to know that help is at hand if she falls.

With regard to a risk of falls at home, his mother has had the benefit of a neck pendant and also another pendant around her waist.

The risk of social isolation could be addressed by appointing a designated carer to take RB out, something which PB has requested in the past. However, she could not be forced to go out.

The risk of depression connected with social isolation is the only significant risk involved in a return home.

As concerns his sisters, he and they simply need to make sure that they avoid each other at his mother’s home.

There is much less risk of confrontation than before: ‘I’ve improved. I try not to argue with people now. It is a waste of my time and non-productive’.

The positives of E Care Home are that RB has the company of other residents, she has the support of carers in relation to medical assistance and the benefit of two-hourly checks. Her weight has reduced and her diabetes is more under control. The quality of care has been good (later downgraded under questioning to ‘not bad’ by PB). Sometimes she says that she likes being at the care home but that is not the same thing as wanting to live there.

The care home negatives are that his mother is ‘moaning all the time’ (‘normally I tell her to stop moaning and she does’), she does not get on with some residents and is saying ‘of course I want to go home’. There was a major incident on 28 November ‘when a woman in a night-dress was taking things from her.’ One female resident came into her room and his mother referred to her as ‘a witch’.

The longer she remains at E Care Home, the less she can recall of home.

It is necessary to ask whether his mother is happy at the care home: ‘Is she happy? ‘She is happy to be there for now, that’s all’.

PB disagreed with Mrs S that it was not in his mother’s best interests for him to provide care and/or support to his mother at home between 6pm and midnight: ‘It is not a difficult job. I just need to turn up, see to food and medication, put her to bed. It is basic stuff. May be for two years max.’

PB told me that he lives in a first-floor two-bedroom property around 2½ miles from E Care

In his skeleton argument, Mr Suterwalla submitted that the starting position is my detailed judgment following the hearing in December 2012. In that judgment the Court recognised RB’s ‘strong and consistent wish’ to live at R Close [D60]. The Court had held (at [52]) that: ‘Because she has expressed such a strong and clear wish to remain in her own home, and her relatively simple needs make it realistic to provide care in that setting, the aim must be to secure an arrangement that enables her to be at home for as long as her health allows.’

PB’s primary position remained that it was in his mother’s best interests to return home to R Close. He took that position because his mother did not require care in a residential placement, such care being disproportionate to her care needs, and she has constantly evinced a wish to return home. The validity of both of those points was not undermined by anything in Mrs S’s ISW report of 16 November 2015.

More particularly:

No compelling evidence had been adduced since 2012/2013 that RB’s wishes and feelings with respect to where she should reside had changed;

If his mother was capacitous she would wish to return to R Close;

Her care needs could be met with the right package of support at R Close; and

The reasons advanced by the local authority and by Mrs S as to why her care needs could not be met at R Close did not withstand proper scrutiny.

In his closing oral submission, Mr Suterwalla told me that the decision as to whether RB should remain at E or return home turned on five factors:

Her present wishes and feelings;

Her past wishes and feelings;

What she would be likely to decide if she still had capacity (substituted judgment);

Her present care needs; and

An assessment of the risks of physical and emotional harm.

The court should ask itself whether there was any evidence to displace the well-evidenced previously recorded position that RB wishes to remain in her own home. There was no compelling evidence that her position has changed and PB was satisfied that his mother wished to go home. Paragraph 10 of his final statement listed the occasions on which she had asked to return home.

The balance of the evidence indicated that RB is still able to express a clear wish to go home and ‘has an understanding of what that means’. The most detailed report in connection with her present wishes and feelings was that of the second ISW, Mrs S. Her oral evidence that RB is confused about where her home is, and whether she wishes to return to it, was overstated and inconsistent with paragraphs 12-21 of her report.

If RB still had capacity to make the decision for herself she would not form the view that the time has come for her to move into a care home. Her past wishes and feelings had been clear and they were that she wished to live in her own home.

Nothing in her level of cognitive functioning, present care needs and risk of harm gave rise to insuperable difficulties. The previous problems associated with family dynamics and confrontation had been resolved. The previous problems associated with the quality of paid care at home could be catered for.

PB accepted that his mother’s presentation is now different to how it was before her reception to E Care Home. However, she was not happy at the care home between December 2014 and May 2015 and it was too simplistic to attribute that unhappiness to the difficulties of transition.

Although it was said that she is now happier at E Care Home, that simply reflected her poor health in December 2014.

‘Would she be unhappy to return home?’ was the question. Mrs S’s evidence was essentially simply that there was a risk that she would be unhappy at home. She did not say that the arrangement would break down within a few weeks.

The main issue to come out of the hearing had been that of social isolation. It was accepted that RB generally presents well at E Care Home. However, the view that she needs reassurance and would be socially isolated at home was based on quite limited evidence of her not wanting to be left alone. The care home notes did not reveal a constant need for reassurance or attention and a robust care package at home could prevent her from becoming socially isolated. The family dynamics had been managed and there was no real concern that the historical problems of confrontation within her own home would re-emerge. The evidence that RB now needs 24-hour support ‘was not particularly compelling’ and meeting her physical needs had not been the primary focus of the case.

In summary, none of the evidence ought to lead the court to conclude that RB has now changed her wishes as to where she wishes to reside. Remaining at E Care Home was at odds with her long-standing wish to be at home and there was no evidence that she would be unhappy if she returned home.

In her written submission, Ms Okafor noted that the the London Borough of Haringey, the

The overwhelming weight of professional opinion was that RB currently benefits from or positively requires a 24 hour care and support package. The overwhelming family opinion was similarly that she benefits from or positively requires a 24 hour care and support package.

Dr TS had been asked to provide expert guidance in relation to RB’s current wishes and feelings given the inconsistency of her responses to different people or to the same people at different times. She had drawn the court’s attention to the fact that RB consistently referred to her mother during interviews with professionals. This indicated a desire and need on her part to feel safe and secure. It was apparent to Dr TS that RB would not like to return to an isolating environment and now felt a need to be looked after. This ‘was a game changer’ as Dr TS put it.

RB ‘evidently no longer presents as wishing to live or being alone, however one may look at it’ and a home is not a home merely because it brings with it more privacy or rights of occupancy if a person is miserable, isolated and prefers not to be alone.

RB suffered from short term memory loss as a result of dementia, was unable to take care of herself because of cognitive impairment and suffered from low mood and indeed depression at home. The care home supported her to make choices, provided her with peer group companionship, prompted her to socialize with other service users and encouraged her to engage in one-to-one conversation. It enabled her to occupy her time and to have a better quality of life.

Consequently, her presentation and health are now in marked contrast to what previously was evident in her own home. At home she was socially isolated and withdrawn; she could be confused or irritable, shouting and lashing out; her diabetes and weight were not wellcontrolled; she needed frequent prompting to take fluids and eat regular meals; refused to wear dentures; was observed to sleep mostly in a lounge armchair during the day; and was at risk of falling.

The particular benefits for RB of living at E Care Home included the following: her eating problems have been resolved and she readily goes to the dining area for meals; she now wears her dentures; her bedtime routine is well-established; she sleeps through the night once settled; her mood is stabile and she cooperates with staff with regard to the delivery of personal and domestic care; she has onsite access to a socially active environment and has formed attachments with residents and staff alike; she is able to participate in religious services and activities at the local church; she takes pride in her appearance and sees a chiropodist, hairdresser and optician.

It was not in RB’s best interests to risk all of these benefits by sending her back to an isolating environment. Furthermore, such a return brought with it the potential for further unnecessary and lengthy interventions by the court each time her situation or residential needs changed. By allowing her to remain at E Care Home, the court would, as far as possible, be future-proofing her care needs, which were only likely to increase.

The property at R Close is a small purpose built one bedroom flat. It has a very limited capacity for a transition plan that involves monitoring day needs and any night time care required, and no space for a live-in carer.

The advantages and disadvantages of the two available placements, as they stood at the end of June 2015, had been fairly set out in the local authority’s balance sheet:

RB at times wishes to remain 1. At times RB wished to return

RB is fully cared for both emotionally and physically. Since admission she has not had any falls, her diabetes is under control, she is going to bed at a reasonable time and she is eating regular and more healthy meals.

She has made new friends and is much more sociable.

Her spiritual needs are being met. A priest visits her once a week which she has commented on and values (the priest gave her a rosary which she wears).

Her wider family visit regularly which she enjoys and she appears to be much calmer and more relaxed. She is happier and more

Her needs can be attended to in a more relaxed and less intense manner. There are more staff available and therefore she is under less pressure to get up/get washed/eat her meals at set times.

In reality, she has not been able to enjoy the supposed benefits of living at home (as listed in the other column) for a very long time.

The current placement has shown RB to be more independent and she has more control over what she wants. Moving her back to R Close would jeopardise this and she could well revert back to a withdrawn depressive state.

RB would no longer have her own tenanted flat.

Loss ‘of associated place with happier times when she lived at R Close’.

In theory there would be a loss of independence in relation to matters such as when she wants to eat/drink and go out and how she wants her environment to look.

In theory she would lose her right to regulate her personal relationships with people on her terms. For example, when she chooses to invite people around. 6. In theory she may enjoy ‘the entire privacy of the home’ at R Close.

She would have her own tenanted one bedroom flat.

She would be living at a place where she can recall happy memories of family life.

In theory she would have greater independence in relation to matters such as when she wants to eat/drink and go out and how she wants her environment to look.

In theory she would have an

A care package of 24 hours for one week only would lead to a gap in care needs from week two. Some night time risk needs could not be met because her flat cannot accommodate a live-in carer.

Her home cannot facilitate a higher level of carer support should this be required in the future.

A move back to residential care as her needs increased further would be destabilising and also require another potentially lengthy court case.

There was no guarantee that E Care Home would have a place at that time.

She would lose the benefits of E Care Home where she has become comfortable and made friends.

A return home brought with it

There was a risk that conflict between RB’s children would re-emerge.

There was a risk that the provision of care at home would again be disrupted by family members, for example PB, thereby placing RB at the centre of conflict and/or causing a breakdown of the care package.

The local authority did not seek an order regulating contact in the event that the court decided that RB should remain at E Care Home. Nor would a personal welfare deputy be required in that situation.

If Mrs RB remained at E Care Home, the local authority would pay for a bigger room. It would also arrange (in consultation with RB, her family and an advocate) for a choice of personal possessions to be brought to E Care Home from R Court and for an appropriate and sensitive clearance of her flat.

The local authority supported the publication of the judge’s decisions in the case as being in the wider interests of justice, subject to the caveat that RB remain anonymous.

The current standard authorisation should be extended in order to allow the local authority time to require E Care Home to apply for a further authorisation. Mr Patel for the Official Solicitor/RB

The case was finely balanced.

The starting point was RB’s wishes and feelings (see the Aintree case).

The local authority had set out very ably the pros and cons of both possible places of residence (G/617).

The following factors had persuaded the Official Solicitor that on balance it was in RB’s best interests to remain where she was:

The evidence from a number of sources that she is happy, settled and secure at E Care

Dr TS had known RB over a period of five years. She was clear that RB had deteriorated between March 2014 and August 2015. The wishes and feelings she expressed to Dr TS were inconsistent but one could infer a need to be in a safe and secure place which she regarded as home, and most of the time that was E Care Home.

Mrs S noted in paragraph 6.5 of her ISW Report that RB said that she would be happy to remain at E if that was the decision of the court.

Importantly, E Care Home ensures that RB’s emotional needs are met. She has social interaction, reassurance, comfort and security there. Mr Hatchman said that she was a different person now. At home she had been depressed and uncommunicative, at E she was chatting and smiling and one could see her personality. The Official Solicitor’s attendance notes from 2012, 2014 and 2015 tended to bear this out. Looking at the history of life at home, there was a risk that she would lose these considerable benefits at home. The attempts of core carers to address her social isolation at home had not been successful and it was difficult to get her to go out if she resisted that. Consequently, she had become depressed. At E social interaction at home was always there.

PB was probably the family member who knew his mother best. However, whilst PB knew his mother well, he might be understating her needs. In cross-examination, at times he had seemed able to understand his mother’s physical needs but unable to recognise her emotional needs. In addition, the reality of modern domiciliary care was that it is inconsistent and variable in quality and he seemed to over-estimate what can be provided by carers in the home.

RB’s dementia has progressed to a level which means that it is now more difficult to ascertain her present wishes and feelings in relation to her place of residence.

It is unlikely that RB’s capacity will improve so as to enable her to make these particular decisions for herself. Her condition is a progressive one. Therefore, a decision must be made for her now, by me, in her best interests.

The law requires objective analysis of a subject not an object. The incapacitated person is the subject. Therefore, it is their welfare in the context of their wishes, feelings, beliefs and values that is important: Westminster City Council v Sykes [2014] EWCOP B9, (2014) 17 CCLR 139.

In taking RB’s wishes and feelings into account, I have considered the case of ITW v Z, [2009] EWHC 2525 (Fam), the degree of incapacity, the strength and consistency of her views, the likely impact of knowing that her wishes and feelings are being overridden (if my decision is contrary to her wishes), the extent to which her wishes and feelings are rational, sensible, responsible and pragmatically capable of sensible implementation, and the extent to which her wishes and feelings can properly be accommodated within the court's overall assessment of her best interests.

I have also applied the judgments of Lady Hale in Aintree University Hospitals NHS Foundation Trust (Respondent) v James (Appellant) [2013] UKSC 67 and of Peter Jackson J in Wye Valley NHS Trust v Mr B [2015] EWCOP 60.

In 2012, a very experienced ISW, Stewart Sinclair, reported to the court that RB was ‘able to articulate a clear wish to remain in her own home for as long as possible’ (C/5).

RB also told Mr Sinclair that one day she might need to move into a care home:

While RB’s statement is evidence that she understood that people’s circumstances and needs change, and that she might not be able to live at home indefinitely, it does not answer the questions, ‘What are her wishes and feelings now?’ and ‘Have we reached that point?’

Late in 2012, the court found that the factor of magnetic importance in her case was ‘to secure an arrangement that enables RB to live at home for as long as her health allows and to manage any significant risk that she may lose her own home before her health requires that’ (D/77).

It is not disputed that until 2015 RB consistently expressed the view that she wanted to live at home. For example:

On 1 April 2014 she attended the Memory Clinic and said that she did not ‘want to go into a home, the carers work’ (C/41). Her MMSE at this time was 21/30, an improvement of three points since her previous review, and her BADL score had likewise improved, by ten points to 26/60.

On 27 May 2014, a social worker best interests assessor recorded that:

On 16 June 2014, Dr M reported that RB was happy in her own home: ‘I feel safe here, I like it here and want to stay here … I haven’t got no problems.’

On 2 July 2014, Ms Taner visited RB on behalf of the Official Solicitor. RB did not feel well that day and was uncommunicative but with regard to the care she was receiving did say that she was ‘fine’.

On 29 November 2014, RB was admitted to hospital following a fall at home. She had experienced significant weight loss prior to admission and her appetite had been very poor. The cause of this was diagnosed as being oesophageal ulcers which were successfully treated.

On 24 December 2014, RB was discharged to ‘step-down’ accommodation, E Care Home, initially for a period of four weeks. However, she has resided there ever since.

On her reception to E care home she was upset about being there and referred to being

A three-week review was held on 14 January 2015. RB was much improved. She was eating and drinking regularly; allowing assistance with her personal care; going to bed at a reasonable hour; engaging with staff and others; and (it was recorded) generally much happier (B/167). On more than one occasion she said that she liked the residential setting and during the review she told her social worker ‘that it is “nice here” and that she was “happy here”. RB said that she doesn’t think about going home’ (B/168).

According to the Deputy Care Home Manager, Mrs P, RB started to settle and her health began to stabilise during February and March 2015 (B/254).

A standard authorisation was issued on 9 February 2015. The social worker best interests assessor recorded:

On 27 February, PB says that his mother told Ms Taner, visiting her again on behalf of the Official Solicitor, that she did not like E Care Home and wanted to go home (B/200). That is a simplification in my view. When asked about where she would like to live, RB said: ‘I want to go home and live with my mum but they tell me she is too old to look after me now’ (B/200). She complained that there was nothing to do at the care home.

A Summary of Needs AMD Report dated 6 March 2015 states:

On 4 April 2015, RB was interviewed by Ms H, the first ISW instructed in 2015. She ‘did not know the address of E Care Home but was aware she was in a care home. I asked RB where she would like to be, she responded, “I want to go home”. She said this several times but was unclear where home was (‘High Road bungalow’ [an old address]) and when asked could not say why she wanted to go home (‘I don’t know why. I think I will be happier there’). She did not want PB to look after her: ‘I don’t want my son to look after me, no he can’t do that, he hasn’t got energy and patience (C/81) …. I don’t want him to look after me, just visit me’ (C/82).

According to the Deputy Care Home Manager, Mrs P, RB has been ‘stable, happy and content’ since May 2015 (B/254).

On 7 May 2015, local authority social worker Mark Fisher states that:

According to a care home email dated 12 May 2015, when asked about her wishes ‘her reply was that she didn’t think that she could cope if she went home and wished that she could stay where she was. She became upset and referred to her mother dying’ (B/215).

A visit to R Close on 1 June 2015 was of marginal usefulness because PB and the social services representative both appear to have put pressure on her to share their respective views, when the purpose of the visit was to enable her to express her view (B/225 and Exhibit PH/7). RB was aware that she was in her own home but was unable to identify the children in the pictures on the wall.

RB then visited R Court the following day. Mr Hatchman recorded that she:

This is consistent with what Mrs P told me which was that when RB was taken to view R

On 16 June 2015, Ms Rychlicka visited RB on behalf of the Official Solicitor. RB said that she did not like the two places that she had visited earlier in June and that ‘I don’t want to move from this area. I’ve lived here for years and I like it here’. She got along with and liked the carers and was happy where she currently lived (‘Yes, I like it here …. Peaceful and everything’) (B/235). However, when pointedly asked if she wanted to go home, she said ‘Yes, I would’ (B/236) but then variously seemed to advocate R Court, R Close and the care home.

On 17 August 2015, RB was seen by her consultant psychiatrist, Dr TS. Dr TS interviewed RB alone and on neutral territory in order to minimise the possibility of influence or unconscious bias. She reported that RB has a history of psychotic depression and that her MMSE score had declined from 21/30 in March 2014 to 12/30 in August 2015. According to Dr TS’s report:

RB seemed to confuse E Care Home and R Close:

RB thought that she was around 40 years old and denied that her mother had passed away. There was no consistency in her answers. She confused her family home in the West Indies with her current flat and E Care Home and had ‘no clear concept of home’ (C/136).

On 1 September 2015, Ms Rychlicka visited RB on behalf of the Official Solicitor. RB said, ‘I’m happy here but I want to go home because I’m worried about my mum’. She was very tearful, saying that she missed her mum a lot and that her mum had no one to look after her (B/335).

Mrs S, the second ISW in 2015, visited RB on 19 and 21 October 2015 and she also observed a contact session between PB and RB on the latter date. 188. On 19 October 2015, Mrs S asked RB if she knew where she was living ‘at the moment’. She replied, ‘I think it is R Close. It's nice there, a very nice area, nice people very friendly, (there was) a warden I can't remember her name’. She was able to describe her flat at R

With regard to E Care Home, RB said, ‘don’t know how long I am going to stay, I don’t mind staying here, I think I would like to stay here, I like it here, the people are very nice. R Close happy, same way, everybody nice and friendly’ (Mrs S Report, para. 5.9).

Later in the interview, RB said that ‘I might be better back in my own place I like it there’ (Mrs S Report, para. 5.12).

During their interview on 21 October 2015, RB expressed positive views about R Close (‘I do like R Close … People nice and friendly at R Close … I can't remember about the flat’) and E Care Home (‘I get on well with the people it's nice and quiet here … I don't get bored, I never get bored’) but was confused at times about where her son and daughters thought it was best for her to live (Mrs S Report, para. 6.3).

With regard to the possibility that PB could prepare her evening meal and assist her with getting ready for bed, RB replied ‘I don’t mind him cooking my meals ... I would like him to come and do for me. I don’t mind him helping me, thing is I’m worried about PB not getting on with the carers. He could come and visit me sometimes, don’t want him to live with me’ (Mrs S Report, para. 6.8).

She was worried about being alone:

During the observed contact, ‘PB said you want to go back to R Close don’t you? RB replied, “I don’t really know where I want to live. I like R Close”’ (Mrs S Report, para. 8.6).

‘RB then said I would like to live here, I like it here, I would like to live in R Close. I know people and get along with people here. I help them out they help me. I could cook meals but I wouldn’t want to ((para. 8.8). ‘Later when PB was talking to his mother about R Close she said, “I don’t think I want to live here. I want to go back to R Close’ (para. 8.9).

Mrs S’s conclusion was that, ‘Throughout the proceedings RB has frequently expressed a wish to return home to R Close. (Sadly however RB's dementia has progressed to the extent that she is disorientated in time and place and “home” at times can mean R Close, E Care Home or the home where she believes her mother and father still live)’. RB was not saying clearly that she wished to return home.

PB very fairly says that it is inevitable that his mother now finds it difficult to remember her home given the passage of time. While he accepts that RB ‘may present as more confused now … greater confusion is not evidence that [her] wishes and feelings have changed’ and indeed the evidence ‘does not convincingly show that [her] wishes and feelings have changed’. He submits that, ‘In the absence of any solid or compelling evidence’ that RB’s wishes and feelings have actually altered from what they were in 2013, ‘there is no foundation for reaching the conclusion that her position as to where she would like to reside has changed’. He tells me that his mother confirms that she wants to go home when he puts the question to her and that at times Mr Fisher has unduly influenced her. Her statements about being happy to live at E Care Home reflect that ‘she does think the carers are nice but also because she wants to please people’.

In contrast to the position in 2012, I can no longer identify from the evidence a ‘strong and consistent wish to live [at R Close]’ and in my view RB is no longer ‘articulating a clear wish to remain [at R Close] for as long as possible’.

RB last said to PB that she wanted to go home without prompting sometime prior to April 2015.

When RB visited R Close on 1 June 2015, the supervision note records that she was aware that she was in her home. However, there was not much interaction and she slept most of the time she was there. The note does record her expressing pleasure at being there or reluctance to leave and return to E Care Home. Much of the time at home seems to have been taken up by PB and the contact supervisor disagreeing or arguing about her best interests in her presence (B/232). She then visited R Court on the following day, became upset and asked to go home but significantly wanted to go home to E Care Home not to R Close.

Away from R Close, her memories of home seem to be fragmentary. When she is prompted and asked to focus there are times that she has some recollection of her one-bedroom flat, for example during her interview with Mrs S on 19 October 2015, and she may say that she wants to go home. However, even then her attention and recall are quite fleeting and disturbed by disorientation: ‘Mrs S asked RB if she knew where she was living at the moment. She replied, “I think it is R Close”.’

The degree of disorientation, and in particular RB’s confusion as to where she is now residing, is quite pronounced. On 4 April 2015 she thought home was ‘High Road bungalow’. On other occasions she seems to think that E Care Home is R Close and that she is living at R Close. On yet other occasions home is in the West Indies with her mother. Consequently, when she has expressed a wish to go home on several occasions since February 2015 often it is in order to be reunited with her mother (interview with Ms Taner on 27 February 2015; interview with Ms H on 4 April 2015; care home email dated 12 May 2015; interview with Mr Hatchman on 2 June 2015; interview with Dr TS on 17 August 2015).

Because RB’s expressed wishes have been difficult to interpret at times, it is particularly instructive to consider her present feelings. How does she feel at present? What do her demeanour and non-verbal behaviour indicate? Does she appear happy or sad, content or discontented, angry or calm? How does she seem to feel about her life at E Care Home? Is she anxious, distressed, frustrated, asking to leave, expressing dissatisfaction? What questions does she ask about her home and life without being led or prompted?

When RB briefly and inconsistently recalls her different homes in the community it seems to be with affection but in my view the evidence indicates that similarly she also feels affection for where she now lives and I believe that most of the time she now feels that E Care Home is home:

At this stage of her illness, it is likely that her happiness depends much more on how she lives than where she lives. She enjoys her current life for the most part (how she lives) and, if she could analyse her situation more fully, the importance for her of where she now lives probably lies in its impact on how she lives: does she have company, does she enjoy the company, feel secure and cared for, content, have access to her family and so on?

In my view, the balance of the evidence justifies findings that RB is happy and content living at E Care Home and that she feels that it is home most of the time. She does not want to leave and does not want to live by herself (‘I don't think I would like to be on my own. I don't want to be on my own at night. I want someone to keep me company in case something goes wrong’). Although she could eventually readjust to living at R Close, she would be sad to leave her current carers and friends and it is likely she would feel anxious, more vulnerable, isolated and more depressed.

In my opinion, the balance of the evidence in relation to RB’s present wishes and feelings does not point to a ‘strong and consistent wish’ to live at R Close or ‘a clear wish to live there for as long as possible’. Indeed, in my view on balance the evidence suggests that she feels at home at E Care Home and feels that it is home most of the time. She would be sad to be required by me to leave.

Mrs S expressed the opinion that ‘given a choice the majority of older people would prefer to remain in their own homes’ and PB relied on this. However, I am concerned only with RB’s wishes and feelings, not those of ‘the majority of people’.

I accept that when RB had capacity (and for some considerable time afterwards) she greatly valued her independence and her belief-system placed a lot of emphasis on the importance of personal autonomy. At that time she expressed a clear wish to remain in her own home for as long as possible and this was important to her happiness. I sought to give effect to that.

The relevance and significance of an incapacitated person’s previous wishes, feelings, beliefs and values from a period when they had capacity varies from person to person. In a case where a devout Jehovah’s Witness is unconscious and a decision is being made about whether a blood transfusion should be given, the person’s beliefs and values prior to becoming unconscious are of great significance. In a case such as RB’s they must be balanced against the person’s present wishes and feelings. In RB’s case I give more weight to my finding that she is happy and content at E Care Home and feels at home there than I do to speculating about what she would now make of her present situation if she briefly had the capacity to assess her current incapacity and circumstances and was in possession of all relevant facts. I expect but cannot know that she would approach it as I have tried to do and would choose the option she feels is most likely to promote her happiness.

I have summarised the oral evidence of the witnesses all of whom gave me a great deal of useful information and demonstrated thoughtful compassion.

I was impressed by Mr Hatchman’s evidence. For several years now he has supported RB in extraordinarily difficult circumstances characterised by conflict, litigation and a succession of formal complaints. He has for most practical purposes acted as personal welfare deputy. On numerous occasions it would have been easy to give up or to become antagonistic to one of the parties or to have pursued the most convenient solution. He has stuck it out. He deserves and should take much of the credit for the fact that RB has been able to live in her own home beyond 2011, and he has been ably supported in this by Ms Okafor. The evidence he gave was fair, measured and compassionate and I have given it considerable weight.

I also give considerable weight, as did the Official Solicitor, to the oral evidence of the deputy care home manager, Mrs P. She had an excellent grasp of RB’s feelings, wishes and preferences. She was also kind-hearted, balanced in her evidence, not at all defensive and keen to promote people’s autonomy.

Some of the evidence of Mrs S, the second ISW, was compelling. In particular, I was helped by her analysis of why RB has not wished to attend a day centre. I do not, however, accept her opinion that PB ‘lacks insight’.

I was impressed by PB’s evidence and demeanour. I thought that he showed considerable insight into his mother’s needs and on the whole took a balanced view of the evidence. He was courteous to others in court and has clearly worked extremely hard to address and manage the issues referred to in previous judgments. He has always impressed me as compassionate and dedicated in his care for his mother and again that was very apparent. His arguments had merit and I have given his evidence considerable weight whilst ultimately departing from his conclusions in the important matter of his mother’s present wishes and feelings, and how best to promote her current and future happiness.

The irony is that PB succeeded in gaining his mother’s return home in 2012 notwithstanding the conduct issues but has not succeeded in achieving that in 2015 despite an absence of significant present concerns about his conduct. It may seem unfair to him but the reason for it is that both decisions have turned on my interpretation of RB’s wishes and feelings and I find that these have changed.

RB’s needs

PB’s conduct

Prognosis

Autonomy

R Court

Trial period at R Close

The nature, intensity, unpredictability and complexity of RB’s needs are not of a level which indicates a primary need for healthcare.

I agree with PB that his mother’s care needs have not ‘changed so substantially that she [could not] go home’.

I obviously accept that Mr Fisher formed the same opinion in March 2015 when he supported a return home ‘with a robust support package’.

As Mrs S observed, the task-focused nature of RB’s needs is straightforward.

However, as Mrs S also observed, RB’s need for emotional support and reassurance is not so straightforward.

Being happy and content involves more than having one’s basic personal care attended to, being protected from falls, having one’s diabetes and diet monitored and so forth.

Having regard to the absence of a clear, consistent wish on RB’s part to leave E Care Home and to return to her old home at R Close, to my mind the evidence is overwhelming that she is and is likely to be happier living at E Care Home than at R Close. Her cognitive decline and increased disorientation have greatly diminished the significance for her of living alone at R Close and increased her personal need to live in a more supportive environment.

I find that the weight of the evidence supports findings that:

She benefits from the care and support she receives at E Care Home.

She ‘is a jolly person’ and is ‘generally content’ at E Care Home, and more content there than she was at home previously. In particular, she is chatty, ‘more alive and vibrant,’ engaging with others. She has ‘thrived’ there, developed valuable friendships and relationships and ‘become her own person’.

She appears to benefit from a more controlled and structured environment within which she does not have to worry about everyday things in the way she did at home.

The environment is comfortable and safe and she has easy access to the company of people other than professionals and family members.

E Care Home has a stable client and staff group and provides a very good service to its residents.

The particular benefits for RB of living at E Care Home include the following: her eating problems have been resolved and she readily goes to the dining area for meals; she now wears her dentures; her bedtime routine is well-established; she sleeps through the night once settled; her mood is stabile and she cooperates with staff with regard to the delivery of personal and domestic care; she has onsite access to a socially active environment and has formed attachments with residents and staff alike; she is able to participate in religious services and activities at the local church; she takes pride in her appearance and sees a chiropodist, hairdresser and optician.

Her presentation and health are now in marked contrast to what previously was evident in her own home. At home she was socially isolated and withdrawn; she could be confused or irritable; her diabetes and weight were not well-controlled; she needed frequent prompting to take fluids and eat regular meals; refused to wear dentures; was observed to sleep mostly in a lounge armchair during the day; was at risk of falling; and was often depressed and anxious.

It is not feasible to have a live-in carer at R Close and no place is available at R Court.

It is likely that many of the historical problems would recur if she returned to R Close, e.g. social isolation, depression, erratic sleep, reluctance to engage with paid carers, variable quality of paid care, some resulting frustration on PB’s part.

For the reason given by Mrs S, I do not accept that ‘there is no reason why social activities cannot be arranged were RB to return to R Close’. Even if a day centre is utilised, given the history it is unlikely that RB would be willing to spend time there. Going outside one’s circle of comfort is difficult for a person who is cognitively impaired.

In short, I find that a return to R Close will almost inevitably lead to a deterioration in RB’s mental health and emotional well-being and that she will be considerably less happy there than she is now at E Care Home.

If RB still had a clear and consistent wish to live at R Close notwithstanding the limitations and complications of life there that would be a very powerful counter-consideration. Personal freedom, independence and autonomy are hugely important for most people and many people prefer to prioritise their independence even when that comes at a considerable price in terms of personal comfort. That was the case in 2012 but I do not believe it is now.

PB deserves enormous credit for the way in which he has addressed the issues highlighted in previous judgments. For example, Mrs S reported that JP and OM from the care home

If PB’s mother returned home, it is unlikely that his relationship with professional carers would be entirely incident-free. As he himself told me, he has ‘needed to keep on the back of the carers at home, to make sure they do their job … They should know it,’ and his expectations could be viewed as too high ‘if they [the carers] don’t get up to scratch …’

However, the improvement is such that I think any incidents would be much milder than was previously the case and also that he would ensure that he and his sisters visit at different times.

That being so, I agree with Mr Hatchman and Mr Fisher that PB’s conduct is not a significant factor in any balance sheet analysis.

RB told Mrs S that she would not mind PB cooking evening meals and staying over occasionally (‘I would like him to come and do for me. I don’t mind him helping me’).

In reaching my decision, I have proceeded on the basis that if RB returned home PB could be with her between 6pm and midnight and prepare evening meals and that this would be in her best interests.

However, for the reasons given, I believe that on balance the evidence suggests that RB feels at home at E Care Home and feels that it is home most of the time. She would be sad to be required by me to leave and would now be less happy at R Close.

I accept RB’s submission that a residential placement carries with it certain deficiencies because the interests of the individual must sometimes yield to the interests of the group. RB enjoyed her Sky TV package and having control over what she watches.

In the past she has enjoyed living independently, as described above.

PB’s alternative submission was that his mother should move to R Court if the Court did not agree with him that it was in her best interests to return to R Close. This was because ‘residential care is still premature and … will only accelerate her decline’.

In truth, this ‘third option’ was not really pressed because a place is not available at R Court and there is no expectation that one will become available in the near future.

If a place was available at R Court, I find that potentially it would have had some significant advantages over R Close. RB would have her own private flat, the benefit of a second bedroom for her family or a night-time carer to stay over as her disease progresses, support from on-site professionals, a sense of greater independence than in a care home, more autonomy over what she watches on television, some social company, her own familiar furniture and her personal belongings from home. The manager of R Court has experience of successful transitions from care homes in similar circumstances.

Apart from the fact that no place is likely to be available and that transitions can be upsetting, RB is content at E Care Home and Ms P told me that when RB was taken to see R

He felt that a move to R Court ‘would be counter-productive if RB is emotionally unable, physically unwilling [or] simply does not wish to make such a huge change in her living arrangements’ (B/227).

On balance, I find that RB is happy and content where she is and does not feel that she wants to move. While R Court has some advantages, these would not outweigh those of E Care Home even if a place was available. She has made friendships at E Care Home, is happy and content there, feels safe and secure and it provides what she needs at this time of her life.

The court could take the opportunity to test RB’s ability to live at home. I have considered this possibility but have decided that it would not now be in RB’s best interests.

For the reasons given, I have found that a return to R Close will almost inevitably lead to a deterioration in RB’s mental health and emotional well-being and she will be considerably less happy there than she is now at E Care Home.

That being so, a trial period at R Close would be likely to lead to distress and unhappiness and I do not consider that to be justified in the absence of a clear and consistent wish on her part to live there.

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.

I have already explained why I find that it is.

A return to R Close will almost inevitably lead to a deterioration in RB’s mental health and emotional well-being and she would be considerably less happy there than she is now at E Care Home.

A continuance of residential care at E Care Home is proportionate in my view having regard to the risks which I have mentioned. If RB still had a clear and consistent wish to live at R Close notwithstanding the limitations and complications of life there that would be a very powerful counter-consideration in terms of proportionality. However, while that was the case in 2012 but I do not believe it is now. She would be sad to be required by me to leave E Care Home.

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 RB’s rights and freedom of action.

I find that RB would be sad to be required by me to leave E Care Home and would now be less happy at R Close.

Implicit in the best interest analysis is a consideration of RB’s Convention rights and those of her family.

I accept that any limitation of family contact and home life is an interference with Article 8 rights and that it must be proportionate and for a permitted purpose.

In my opinion, the interference caused by my decision is prescribed by law, proportionate (to the identified risks) and for a permitted purpose. The arrangements outlined will protect and promote RB’s health and well-being in ways that bring her enjoyment and are in her best interests. There are no restrictions on family contact at E Care Home.

It is common ground that there should be no restrictions on RB’s contact with family members and other persons. I would hope that it may be possible for RB to visit PB at his home and for him to be regularly involved in care and social activities.

Given PB’s recent conduct, all injunctions relating to him are discharged. He will continue to be his mother’s deputy for property and affairs.

Given that RB will no longer be residing at R Close, there is no further need for a personal welfare deputy and that order is also discharged.

The local authority has undertaken to purchase a larger room for RB at E Care Home.

In February 2002, a doctor provided a statement in relation to PB's eligibility for Incapacity Benefit. The main diagnosis was given as a ‘chronic anxiety state.’ (This may cast some light, I believe, on PB’s conduct in court, and why he left the court building and walked out on his previous legal representatives shortly before one of the hearings.)

In 2005, PB said that he could not live in a hostel because ‘the noise would be too much for me.’

In May 2008 he told Dr LS that he had in the past ‘locked himself away as problems with nerves, arguing all the time.’

He is clearly very close to his mother and it would be unfortunate if this relationship, the only one he has maintained throughout the years, were to be disrupted.

Mr B was dissatisfied with the visiting carers: "people come round but they are rushing all the time, they have not got time to cook, it is the same old routine, for example they have left my mother unwashed again." 6. He had not had any contact with a psychiatrist until Dr LS’s initial assessment in May 2008. At that initial interview, Dr LS ‘diagnosed a personality disorder with impulsive and paranoid features.’ He was offered a referral for Anger Management, which he declined. He did accept a trial of a low dose of olanzapine, to reduce his arousal levels.

At the follow-up appointment in June 2008 he reported a modest improvement with the olanzapine, and agreed to consider longer term psychological therapy. He was referred to the local NHS psychology service. He but did not pursue the possibility because "it is a waste of time seeing a psychologist, my mother said so, they cannot help me". He elaborated that "it is just a mild problem, no big deal, if you are not attacking people they attack you". When I challenged him and pointed out that he might be able to change, he again resisted this suggestion: "If I change the way I am you find that people take you as a soft person and you end up like everyone else, doing something you do not want to do."

He made little eye contact with Dr LS. He talked rapidly in a monotone, rarely checking to see the doctor’s response. There was no evidence of hallucinations, delusions or formal thought disorder and he was not clinically depressed.

Others were invariably against him and he was never in the wrong in such cases: "people should not be picking on me – if they do, I shout at them – there is no point complaining as no one does anything. What else can you do? So I do not think there is much wrong with me. Now they are all on my back – the judge, the carers." "Everyone is doing everything wrong to me – it is not a Court of Protection, it is a business, they are as corrupted as hell.’

At his initial NHS psychiatric assessment, in May 2008, PB was accompanied by his mother. He told Dr LS at the time: ‘I have a personality disorder, I do not like people around me, it makes me aggravated, it can end in a scrap. I cannot take too much noise.’

‘There can be little doubt that Mr B is suffering from a personality disorder’ (paragraph 15.1).

He is deeply dysfunctional in most if not all areas of his life.

He would meet the criteria for a paranoid personality disorder. He agrees that he is excessively sensitive and does not forget perceived insults or slights. He also admits being suspicious, and the history as documented above provides many examples of his interpreting intentions as malign, … His combativeness and tenacious sense of personal rights are a constant thread running through the history and mental state.

He could not be shaken from his belief that therapy would not be helpful for him. Unless he is willing to accept treatment, the prognosis must be very poor, as paranoid personality disorders do not improve spontaneously with time. The only alternative open to the Court in my opinion is to strengthen the existing boundaries, adhere strictly to them and use legal means to enforce them if necessary.

There is no standard treatment for paranoid personality disorder, but psychological therapy and medication are used. Mr B has already received, and reported some benefit from, a low dose of an antipsychotic agent to reduce his hostility and insensitivity.

Various modalities of psychological therapy are advocated for personality disorders. Both psychodynamic and schema therapy are available within the NHS, although they are difficult to obtain and there are long waiting lists. Anger management courses are relatively easily accessed in the NHS.

As an interim measure, to assist him to manage his relationships with his siblings and his mother's paid carers I suggested two strategies to him for avoiding angry outbursts: one is to count slowly to 10 before responding to what he perceives as a provocative remark. The other strategy is that when he feels the urge to shout, he should immediately leave the room or building for a few minutes, returning only when he feels more calm.

In the first instance I would recommend that he be again referred by his general practitioner to the local NHS Psychological Therapy Service for an assessment.

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,

‘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.’

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’.

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.

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

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 casespecific 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

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.

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.

Their brother was unable ‘to act in a co-operative and non-confrontational way with anyone involved in the provision of care and all financial matters relating to our mother.’

According to CL, it was in her mother’s best interests for a ‘professional and accountable organisation’ such as the local authority to manage her social and financial affairs, rather than her brother.

According to DB, ‘her health has improved a lot, and she is eating properly because she no longer has sugary foods, her son used to buy sugary foods at her flat, even though he still brings these things to her when he sees her, and he knows my mother is at risk of getting diabetes … At B Lodge … they put her to bed, so she don’t have swollen legs anymore’ [C142].

would not attend Mrs B’s home when care is being provided to Mrs B or when other members of the family are present in accordance with the care plan or 15 minutes before or after care is to be provided;

would leave the property if he attended and carers were present and would not be present at the property after 9pm;

would not act in a manner which was obstructive of or detrimental to the provision of care to Mrs B;

would not act in a manner which would cause or would be likely to cause distress or inconvenience to Mrs B or those caring for her;

would not make comment or complaint about the provision of care to Mrs B to any person except specified persons at the care agency commissioned by the local authority.

Mrs B’s daughters were joined as parties.

The local authority was directed to file a Scott Schedule setting out the alleged facts on which it sought findings, to which Mr B was to respond.

A final hearing was listed before me on 28–30 March 2012.

The local authority was to set out its position as to whether it had been appropriate for Mrs B to sign the tenancy agreement for YY and whether it would indemnify her for any liability and costs arising from signing it.

In February 2002, a doctor had provided a statement in relation to PB's eligibility for Incapacity Benefit. The main diagnosis was given as a ‘chronic anxiety state.’

In 2005, PB said that he could not live in a hostel because ‘the noise would be too much for me.’

In May 2008 he told Dr LS that he had in the past ‘locked himself away as problems with nerves, arguing all the time.’

He is clearly very close to his mother and it would be unfortunate if this relationship, the only one he has maintained throughout the years, were to be disrupted.

Mr B was dissatisfied with the visiting carers: ‘people come round but they are rushing all the time, they have not got time to cook, it is the same old routine, for example they have left my mother unwashed again.’

He had not had any contact with a psychiatrist until Dr LS’s initial assessment in May 2008. At that initial interview, Dr LS ‘diagnosed a personality disorder with impulsive and paranoid features.’ He was offered a referral for anger management, which he declined. He did accept a trial of a low dose of olanzapine, to reduce his arousal levels.

At the follow-up appointment in June 2008 he reported a modest improvement with the olanzapine, and agreed to consider longer term psychological therapy. He was referred to the local NHS psychology service but did not pursue the possibility because ‘it is a waste of time seeing a psychologist, my mother said so, they cannot help me’. He elaborated that ‘it is just a mild problem, no big deal, if you are not attacking people they attack you’. ‘When

He made little eye contact with Dr LS. He talked rapidly in a monotone, rarely checking to see the doctor’s response. There was no evidence of hallucinations, delusions or formal thought disorder and he was not clinically depressed.

Others were invariably against him and he was never in the wrong in such cases: ‘people should not be picking on me – if they do, I shout at them – there is no point complaining as no one does anything. What else can you do? So I do not think there is much wrong with me. Now they are all on my back – the judge, the carers.’ ‘Everyone is doing everything wrong to me – it is not a Court of Protection, it is a business, they are as corrupted as hell.’

At his initial NHS psychiatric assessment, in May 2008, PB was accompanied by his mother. He told Dr LS at the time: ‘I have a personality disorder, I do not like people around me, it makes me aggravated, it can end in a scrap. I cannot take too much noise.’

‘There can be little doubt that Mr B is suffering from a personality disorder’ (paragraph

He ‘is deeply dysfunctional in most if not all areas of his life. He would meet the criteria for a paranoid personality disorder. He agrees that he is excessively sensitive and does not forget perceived insults or slights. He also admits being suspicious, and the history as documented above provides many examples of his interpreting intentions as malign, … His combativeness and tenacious sense of personal rights are a constant thread running through the history and mental state.’

He could not be shaken from his belief that therapy would not be helpful for him. ‘Unless he is willing to accept treatment, the prognosis must be very poor, as paranoid personality disorders do not improve spontaneously with time. The only alternative open to the Court in my opinion is to strengthen the existing boundaries, adhere strictly to them and use legal means to enforce them if necessary.’

‘There is no standard treatment for paranoid personality disorder, but psychological therapy and medication are used. Mr B has already received, and reported some benefit from, a low dose of an antipsychotic agent to reduce his hostility and insensitivity.’

‘Various modalities of psychological therapy are advocated for personality disorders. Both psychodynamic and schema therapy are available within the NHS, although they are difficult to obtain and there are long waiting lists. Anger management courses are relatively easily accessed in the NHS.’

‘As an interim measure, to assist him to manage his relationships with his siblings and his mother's paid carers I suggested two strategies to him for avoiding angry outbursts: one is to count slowly to 10 before responding to what he perceives as a provocative remark. The other strategy is that when he feels the urge to shout, he should immediately leave the room or building for a few minutes, returning only when he feels more calm.’

‘In the first instance I would recommend that he be again referred by his general practitioner to the local NHS Psychological Therapy Service for an assessment.’

With regard to the likelihood of Mr B being able to comply with court orders, and the suitability of any enforcement strategy based ultimately on the threat of committal to prison, are there any differential diagnoses that you believe the court needs to consider or be aware of, such as Asperger's syndrome, or can I proceed on the basis that there are no differential diagnoses? I am conscious of the fact that we have relatively little historical information. The mental health social work expert thought that it would be valuable to have your opinion as to whether this needs to be explored further.

Do you have an opinion as to whether an 'unless order' approach might be likely to be more successful in terms of achieving compliance with court orders and contact arrangements than one based on a suspended order for committal to prison, followed, if necessary, by committal, and indeed further committals in the absence of any modified behaviour. An 'unless order' might be along the lines of requiring Mr B to partake in treatment, e.g. an anger management programme, as a condition of contact with his mother, or limiting his contact with her in the event of breaches unless and until his compliance improves.

He is a social worker with many years experience.

The original assessment had been that four visits were required each day, interspersed with family visits due to the difficult family dynamics.

Mr H was content for PB to prepare meals for his mother, and to have them with her, four evenings a week. However, he should provide a weekly food menu in advance and record all food provided by him in a food diary.

The 4.15-6.15pm time slot would continue. However, the present carer slot between 6.30pm and 7.15pm would need to be changed on the four evenings that PB provided meals between 4.15 and 7.00pm.

The current interim care plan circulated on 20 September 2012 (F38) provided for an evening carer slot of two hours between 9.30pm and 11.30pm. Such a long period of time was not required. On some occasions, RB had refused to go to bed, so that the carer spent two hours sitting around. Half an hour, between 9.30pm and 10.00pm, would suffice. The purpose of this visit would be to assist RB with any personal care tasks and to provide a

The morning carer would check if RB had gone to bed: was the bed made, was she in her night clothes, etc? If RB was not going to bed, it would be necessary to have a contingency plan and to revisit the arrangements, e.g. if she had not slept in bed on two consecutive nights. This might involve the district nurse visiting to establish the reason, followed possibly by the GP. The two-hour slot could be resurrected, to see if this helped RB to resume her previous habits.

Agency carers were providing evening care to RB prior to her move to B Lodge. A problem then had been that she was not going to bed but staying in her chair, causing leg problems. It was not known why she was staying in her chair (Mr B: ‘Don’t blame me.’). There had been a safeguarding issue. PB would cancel the evening carers, saying they were not needed and that he would look after her. Initially, RB went to B Lodge for two weeks’ respite.

Given the history, PH had reservations about letting PB undertake the half-hour evening slot. This slot allowed the situation to be monitored at the end of the day and, where necessary, for personal care to be delivered by a female. This care might involve seeing to

The essential purpose of the final visit was to check that the household was ‘ok at the end of the day.’ If PB was the last person to be with his mother each day, there would be no check at the end of the day as to compliance with the care plan. At present, Mr H could not be ‘confident’ leaving responsibility for complying with and implementing the care plan to him. No doubt he would lock and secure the property. However, he might stay longer than agreed, into the early hours, so that RB became tired. That had been the feedback from her daughters in the past.

Mr H agreed ‘one-hundred per cent’ with the independent social worker’s opinion that it was appropriate for the children to focus on providing love and affection and for professionals to provide the care. The purpose of the final evening care slot was not providing love and affection.

Mr H did not agree so much with Mr S’s observation that RB had said that she was happy for PB to visit 2-3 times per week: ‘If she wants to see him more than that, I’d support that.’

RB’s daughters had a role to play.

The local authority would suggest monthly monitoring for three months, changing to six months and then annual monitoring. A social worker would receive daily feedback from the care agency and pull it together at the monthly care plan review meetings. The effectiveness of attempts to get RB into bed in the evening would be part of the monthly reviews.

If things were not progressing smoothly after three months, there would be a meeting of

At no time had RB been liable for double rent on two properties: Mr H took advice on that and discussed the situation with senior managers, who agreed she did not have to pay.

The local authority still wished to apply for welfare deputyship. It was a complex case and there was a history of problems arranging and delivering proper care to RB. The local authority did act as both the welfare deputy and the property and affairs deputy in a number of cases. Mr H would be involved in welfare decisions, the finance officer in making financial decisions. If there were significant breaches of the care plan, which continued, Mr H would consult the legal department about returning the case to court.

It was in Mrs B’s best interests for her to continue to live at R Close and for the current care plan and contact framework to remain in place.

In his statement of 29 August 2012, PH had asked the court to ‘consider appointing the local authority as the welfare deputy for Mrs B’ on the ground that ‘there has been a long history of disagreement between Mr B...and his sisters’ and that ‘it seems to me that these disagreements will continue indefinitely, and it is a very real chance given Mrs B’s likely future needs that in the absence of a welfare deputy the Court will be called upon to mediate between the sides in the future.’

If the court did not consider that it was in Mrs B’s best interests for the local authority to be appointed as her welfare deputy, it was not in her best interests for her son to fulfil this role given the historic disagreements with his sisters.

It was a concern that Mr B’s instructions had changed in relation to the provision of meals following the fact-finding hearing and that he was not able to keep to arrangements even when the matter was coming back to court shortly. The local authority thought carers should provide the meals at the telephone hearing, which the court endorsed on an interim basis. A day later, PB said that he no longer wished to prepare meals.

The siblings should all be on an equal footing. The local authority should not give any

There were three key areas to consider: the shape of the final care plan, the deputyship applications and the need for restrictions in injunctive form.

The suggested revisions to the care plan involved the evening change from a two hour to an half-an-hour slot and PB preparing and providing meals four evenings a week, subject to providing a food menu and keeping a diary. Both suggestions had been supported by the ISW. RB enjoyed the food prepared by her son and facilitating this helped his overall compliance. The arrangement needed to be adequately monitored, and reconsidered if PB failed to comply.

There had been concerns about RB sleeping in her chair in the past. Some days it had been clear in the morning that she had gone to bed because the bed needed to be made, and it was recorded she had been in bed, at other times the carers had omitted to make any record at all. Since the current care plan was in place, the necessary information was now usually being recorded.

There was no need for a financial deputy at this stage. PB was his mother’s appointee and this arrangement invested him with adequate powers. His sisters’ criticisms of his financial management had not been made out and he had managed his mother’s finances satisfactorily.

If in the future there were any problems gaining access to RB’s money then the local authority, not PB, should be appointed as her deputy for property and affairs. Her funds had been reduced by the costs of the litigation and the local authority would act at little or no cost.

The local authority had concerns about elevating PB’s status. Appointing him as deputy might give him too much control and status and in that way risk worsening family relationships.

The local authority was concerned by the decisions that PB might make if he was appointed as his mother's personal welfare deputy. There was a concern that he might impose his own views on his mother, rather than allow her to express her own views. When Ro had prepared a meal for RB, it was not clear that he allowed his mother a free choice between her meal and his meal. As to his mother’s diet, he accepted that he had purchased disallowed items.

His behaviour had demonstrated that he was unsuitable to be his mother’s welfare deputy. This was clear from the findings made at the fact-finding hearing and from his behaviour in court. Even if one ignored his behaviour in September, there had been several outbursts in court this week, despite the absence of his siblings and any witnesses from the care agency. The kind of outbursts directed towards professionals would be likely to impact negatively on his mother’s paid carers. Furthermore, there had been outbursts in his mother’s presence which seemed to disregard the effect on her. The need for injunctions

The facts found by the court at the fact-finding hearing supported restrictions in injunctive form. Dr LS and Mr S, the ISW, had both supported the need for clear boundaries. There had been problems during the past three weeks. However, overall, his mother’s situation had been more manageable since the injunctions were imposed. Mr B was asked at the fact-finding hearing about what he was and was not permitted to do, and he clearly understood the terms of the injunctions. He would have little incentive to keep to his time slots if the injunctions were lifted.

The breaches in the last three weeks had been more serious and had gone beyond mere slippage.

Mr S had hoped that paid carer Ro could deal with PB and handle his conduct. However, she was not going to be there all of the time. That was relevant to the impact of breaches on RB’s home care and its viability, even if only limited detriment had been caused until now.

Since his report in May, he had seen Dr LS’s report. His opinion that care should be provided by professionals had not changed.

The local authority had proposed making changes to the September care plan, with the evening carer slot being reduced from two hours to half-an-hour and PB both providing and giving his mother meals four times a week. It seemed reasonable to reduce the two hour slot to half-an-hour if RB was not benefiting from the extra time. It was ‘fine’ for PB to provide his mother with four meals a week if that could be maintained: ‘She enjoys his cooking’. However, it might not be sustainable given his problems keeping to rules and regulations:

PB had not always provided appropriate food. However, she had relatively few pleasures and it was important not to reduce them unless necessary. It was necessary to balance quality of life with longevity. There was a value to be placed on enjoying what you can while you can. Mr S would support restricting the intake of sugary drinks and chocolate, ‘within socially acceptable limits’. RB had to have some pleasures and there had to be some leeway or margin. It was a matter of proportion.

The provision of meals had changed around three weeks ago, as a result of paid carer Ro’s reports of inappropriate food being given to RB. It appeared that RB had put on weight in September and the local authority took the view that PB should only prepare meals, not provide them. Mr S would support a return to PB providing meals as long as a weekly menu and a diary record of food given was maintained, which was not so rigid as to require recording every ingredient.

As concerned Mrs B’s evening care, there were not many ‘hiccups’ at present. There had been concerns about her sleeping in her chair. However, the proposed half-an-hour bedtime routine was sufficient, given that paid carers were also going in during the day, especially if that was RB’s own preference.

Mr S would support including in the care plan a requirement that the morning carer monitor and record whether RB had been to bed. During the past three weeks, on most occasions the paid carers had not put her to bed. However, there had only been two incidents when RB was recorded as being in her own clothes the next day. That was ‘very acceptable’, ‘absolutely within the parameters’.

Given the number of people involved in RB’s care, professionals would know ‘pretty quickly’ if anything was going wrong. A contingency plan that involved reinstating the two-hour slot for a week seemed reasonable.

The balance of the current care plan was ‘as good as it can get in this extremely difficult situation’. The chances of the care plan working were no higher than 50%, even if one was realistic about tolerating a little bit of slippage. The risk was that PB would not stick to what was agreed, visiting times and so forth, thereby creating problems for his siblings.

Since the last order, the carers’ notes recorded half-a-dozen cases of Mr B being at his mother’s home when he should not be there. That was more than ‘slippage’.

If PB failed to comply with the care plan regularly, turning up at unscheduled times, the consequences would include RB experiencing stress and psychological harm, together with problems for paid carers, some of whom could be frightened, thereby making it hard to maintain the care regime. It might become unviable to provide professional care in RB’s own home.

Initial monthly reviews moving to three monthly reviews sounded very sensible. However, Mr S did not want to be too prescriptive.

It was correct that PB had been willing to take part in mediation but CL was not.

It was ‘very difficult to say’ whether he supported the Official Solicitor’s position advocating injunctions backed by penal notices. Such concrete boundaries might be the only mechanism if PB was unwilling to have any treatment. Mr S himself had considerable experience of working with people who had personality disorders. Compliance with a care plan was more likely if there was an injunctive order. As far as was known, Mr B had managed himself in the community over the years without huge problems of conflict with the law and authorities. That provided a ‘slight glimmer of hope’.

In the event that further breaches led to a suspended order of imprisonment, Mr S was unable to say what would be the likely effect of the harder boundary of a suspended order in terms of compliance with the order:

Mr H had a good relationship with PB and seemed to be able to reason with him. A strategy that involved him meeting with Mr B in the event of further breaches, and trying to persuade him of the need to comply, before any return to court, was a preferable strategy.

Mr S’s preferred strategy was probably local authority personal welfare deputyship plus an injunction plus a penal notice. In practice, the role could be performed by one of Mr H’s colleagues and it could be helpful in giving the local authority some authority. Mr S was ‘unsure’ whether he shared the Official Solicitor’s doubts about the ability of a welfare deputy to enforce compliance with the order. He and the Official Solicitor had disagreed about mediation, and he was perhaps more hopeful about Mr H’s effectiveness. However, his opinion was based on very limited knowledge of Mr B’s history and how he had survived in the community over the years. Mr S had not undertaken a Mental Health Act assessment.

Action should only be taken if it was necessary in order to make the care plan viable. Mr S was unable to say how many more breaches would justify bringing the matter back to court. ‘One would need a psychiatric opinion.’ The ‘crunch would probably be if the paid carers say that they cannot support RB in her own home. It was a question of whether the carers could cope with the breaches.’

PB had personality ‘frailities’ and one had to seek ways of working around them, once one had identified them.

Mr S hoped that PB could be persuaded to accept some treatment.

As to whether a conditional or unless order might be beneficial — ‘Unless you agree to some form of treatment, you may not have contact or a suspended order will be made’ — that ‘could be quite helpful if it could be constructed’ along the lines suggested by Dr LS. It would be preferable to proceeding straight to a suspended order or to an immediate restriction of contact. A psychiatric opinion would be necessary for an immediate ‘unless order,’ in order to establish what treatment was appropriate, its feasibility, the likelihood of PB co-operating and likelihood of improvement.

Mr S agreed with the following suggested plan:

Injunctions reinforced by penal notices;

The appointment of welfare deputy;

Mr H taking the role of talking with PB about difficulties and alleged breaches, and reviewing arrangements, before any return of the case to court;

If things went so badly as to threaten the viability of the care plan, asking the court to make an unless order requiring PB to undergo treatment;

If that did not work, the making of a suspended committal order and/or a reduction in PB’s contact with his mother.

The local authority was trying to put all of the siblings on an equal footing. However, it was correct that PB lived locally and had more time to spend with RB than his sisters, two of whom had demanding jobs. This created some tension. There were ‘fearsome family dynamics’ to deal with and the local authority had had ‘a hard time’ from all of the siblings. If RB was asking for more contact with or care from PB, it was right to examine that and factor it in. However, RB herself had suggested that she wanted to see less of her children — and a lot less arguing — rather than more of them. As far as Mr S could elicit, she got fed up and irritated with the bickering and wanted to spend more time on her own.

RB understood that ‘PB had some psychological frailties and felt that her other offspring should have some understanding of his difficulties’. They should make allowances for the way he was, but she did not necessarily wish to see him more, or have him provide more care.

It was correct that RB had told Mr S spontaneously that her daughter could be worse and

Mr S accepted that RB did not have ‘hugely complex care needs’ and that PB had not done much wrong in terms of the direct care he had provided to his mother.

It was correct that the paid carers did not always record if RB was in bed or asleep when they left: ‘No one denies the carers are over-worked.’

If the last visit was too early for bedtime, it might be that RB did not need to get into her nightie and therefore the presence of a female carer was less important.

Mr S did not support the idea of PB taking on the half-hour evening slot. PB had told Mr S that the 8.30pm slot was too early, not that an evening care slot was unnecessary. A 10.30 to 11.00pm slot was probably best, if possible.

It was a problem of boundaries. A female carer would be more suitable for bedtime routines. PB might ‘loiter with the best of intents,’ perhaps deciding to stay all night. Although there was no evidence of him wanting to stay, he liked to deliver as much care to his mother as possible and he found it very difficult to stick to rules and agreements. There was a significant risk that he might stay overnight, to be with or look after mum. RB had not expressed a desire for any of her children to be with her overnight.

The local authority had thought that RB had capacity to sign the tenancy agreement for The Trees.

Relatives often wanted to supervise the care being given to their family member by paid carers. A number of PB’s concerns were valid and criticism of paid care was not necessarily wrong. It could even be appropriate to vocalise or put forward an unmerited concern if it was one expressed by the person being cared for. However, some people took things to disproportionate or irrational ends and there was the issue of mode of expression. A ‘lot of noise can create a better service. However, there are structural issues. All local authorities use care agencies, staff are overworked, there are too few of them and budgets are limited’. The local authority had gone to great effort to bring in carers who RB knew and got on with.

Supposedly, paid carers Ro and J engaged well with RB, Be less well. However, Mr S himself had not seen anything indicating significant concern with Be.

According to CL’s statement of 24 November 2011 [C126, C127, C128, C129], she wanted the local authority to take charge of her mother’s personal welfare and finances,

According to DB’s statement of 24 November 2011 [C142] ‘My brother cannot control his behaviour and interferes with the carers and everyone else involved in my mother’s care. Because of his behaviour with the carers, my mum’s health became worse, when the carers could not visit her, when he was at her flat because of his behaviour and I did not like the way he acted offensively towards me and also when he acted how he wanted even when my mum was upset and told him she wanted him to stop …’

According to LA’s statement of 25 November 2011, she supported the local authority’s application to be appointed as her mother’s personal welfare and financial deputy [C145], ‘The situation with my mother’s current position cannot be resolved through collaboration because [PB] has an ongoing history of volatile, confrontational and aggressive tendencies and has never been able to co-operate with any family or authorities and agencies involved in my mother’s care and has chosen to deliberately impede her care being administered even when she was sick and showing deterioration in her own home (not allowing carers access and his continued aggressive behaviour towards carers) …’

LA said that she and her sisters had been deeply affected by being involved in court proceedings, and were upset by having to talk about the situation in court [C147]. She supported the proposal that the local authority take over the management of her mother’s finances ‘so that her money is used purely for her care and well-being and not subjectively for other’s personal interests, and is not left open to abuse’ [C148]. Position statement: residence, care and contact

In their joint position statement dated 23 August 2012, Mrs B’s daughters stated that it was in their mother’s best interests to remain at home but that this would only be possible ‘if a robust care plan is in place and adhered to by all parties otherwise it will have a negative impact on her health and wellbeing.’

Prior to the amendments made to Mrs B’s care plan at the pre-trial review on 5 July 2012, ‘the plan was predominantly working due to the restrictions implemented by the Court.’ They were concerned that there had been some break down of the plan ‘because of changes not being clarified or discussed fully with the parties.’ Since the changes to the care plan, Mrs B ‘has become very subdued and unsettled and this is not fair to her especially as her mood and motivation were improving.’

If a robust care plan could not be implemented and adhered to by all parties, ‘it would be in her best interests to be living somewhere where she could be cared for in a peaceful, secure and fully supported environment where professionals are on site.’ Position statement: welfare deputyship

It was not in Mrs B’s best interests for Mr B to be made her welfare deputy. His relationship with Mrs B was ‘a controlling one’ which ‘has a detrimental impact on the quality of [her] life because Mr B imposes his demands on her… He controls every aspect of her life including the food she eats, what she has in her house, what happens to her money and his volatile behaviour discourages relatives and friends visiting her in her home. He is unable to control this volatile behaviour in Mrs B’s presence. As a result Mrs B is more isolated than ever, and her mood is very subdued and has low motivation. She is also now again overweight because of being given unhealthy meals at unreasonable late hours.’

‘Due to Mr B’s abusive, aggressive and unmanageable behaviour the family feel he is unsuitable to have this responsibility as he cannot manage [Mrs B’s] affairs in a manner that is transparent because he cannot communicate or conduct himself in a rational and considerate manner.’

A ‘professional neutral deputy such as the local authority or the Court [should] be appointed [as RB’s Welfare] Deputy.’

At the hearing in March 2012, it was contended on PB’s behalf that he should be allowed to visit his mother when carers were present because sometimes this could not be avoided, for example if he had to take his mother out.

In his statement dated 26 July 2012, PB stated that it was in his mother’s best interests to remain at R Close with a package of care provided by the local authority. However, he wanted to be permitted to care for her on his own four evenings a week from 6pm until bed time. The evening care was ineffective, because it took place too early, and therefore frequently his mother was not put to bed. All orders restricting his care of his mother should be discharged as he was ‘willing and able to adhere to the care plan,’ and therefore there was no need for a court order with a penal notice attached. He should retain his appointeeship. The local authority should not be appointed as his mother’s deputy for finances and/or welfare.

In his statement dated 16 August 2012, PB sought an order appointing him as his mother’s welfare deputy ‘because I know my mum better than anyone.’ However, ‘if the court is not minded to grant me the welfare deputyship, I am content for the court to retain control over my mum’s personal welfare.’ He objected to the local authority being appointed as welfare deputy because it ‘has made some very significant errors in relation to my mum’s welfare.’ If the local authority was appointed as welfare deputy, he asked to be ‘written out of (his) mother’s care plan altogether as (he) would not be able to live with such a discriminatory and unjust decision.’

In his statement of 26 July 2012, he disputed ‘almost all’ of the allegations set out in the Scott Schedule. However, at the fact-finding hearing, he openly and honestly accepted many of the facts alleged. He has always denied suffering brain injury as the result of a car accident some years ago, being physically aggressive to neighbours, and being banned by his mother from visiting her, which matters found their way into social worker EC’s report.

At the fact-finding hearing, PB accepted that in 2011 he had been upset about his mother’s evening care. She had asked not to have evening care and was then believed to have capacity to make such decisions. PB had been willing and able to provide the evening care. He was providing RB with a home cooked meal, which she preferred, and putting her to bed. Despite his mother’s wishes and this agreement, the care agency continued to send out carers in the evenings. All of this was communicated to the company but they continued to send carers. PB became increasingly frustrated as he felt that he was banging his head against a wall.

These carers were young and inexperienced and were unable to provide the care that RB needed. As a result, RB was left unwashed for more than a week:

It was ‘uncontroversial’ that his mother did ‘not respond well to inconsistent and inexperienced carers’ and that she often refused care in such circumstances. Since that time, the care plan had been amended to provide a pool of familiar 4-5 carers/support workers, to minimise the chances of her refusing care.

At 2.40pm on the second day of this hearing, PB announced: ‘I’ve broken the order, simple as that … I have to make sure the building is not burnt down … What am I supposed to do. I’m not going to go in the [witness] box.’ At 3.05pm, PB confirmed his witness statements and gave the following oral evidence:

During the last three weeks, his mother had mostly put herself to bed. He would phone to

His mother had experienced two falls since returning home. The first time she fell off a chair and bruised her left leg. She fell at night and was found in the morning, when the carer failed to notice the bruising. The second fall was just over a month ago.

His mother had told the independent social worker, Mr S, that she was happy with him doing everything [D14, xxix]. By then, she was back at home and he was covering for everyone:

If appointed as his mother’s personal welfare deputy, he would deal with problems by contacting the care agency and listing the things they were doing wrong. He had lodged complaints. They had ‘brightened up their act’ now and Mr B [the manager] had ‘started to behave like a human being’.

He was able and willing to provide meals four times a week.

PB had seen the psychiatrist, Dr LS, some five years ago. A lot of the things he told him then were not true, for example that he had hurt himself with a hammer. The police had told him to see a psychiatrist with a view to seeking some compensation. He intended to claim sickness benefits. Dr LS had got it wrong. In the past PB had suffered from skin problems, and had avoided school, but there had been no mental health problems for a long time. ‘I am trying to admit that I have a problem swearing.’

He was able to take care of his mother’s care needs with help from paid carers and the local authority.

He wishes to be appointed as his mother’s deputy for property and affairs. He had sorted out her financial problems in the past and managed to get money for her. The only problem in this respect was arguments with his sisters.

Under questioning by Ms Bhogal on behalf of the local authority:

The care agency supervisor had infuriated him on the telephone the other day and I had used the ‘f word’ once … She shouldn’t be lying on the phone.’

It was correct that there was no ban on ready meals. Alternative ready meals providers had been investigated in the past (‘We’ve tried that before, it didn’t work’). However, ‘mum does not like ready meals or microwaved food … she doesn’t want all that crap. It’s going round and round, she doesn’t want it.’

As concerns the food which the dietician found in RB’s home in May 2012 (biscuits, cakes, brioche, etc), the carers brought in the cakes and the brioche, he brought in the madeleines. The muffins and the biscuits were for him. The ‘carers give mum a cake every day as a snack … Ro buys muffins as well … I brought in the star cakes, the carers brought in the yoghurt crunch. They’re bringing it in still … I brought in the hobnobs and the mini-doughnuts; mum and I eat those, two each. Ro was lying when she said that she was not bringing in a custard cake each day. ‘I didn’t go into court in March, they wanted me to sign an undertaking, I never agreed to the restrictions

PB did not dispute that his mother had gained in 3.5kg in weight during the previous five months, which amounted to 4% of her body weight and that he had been providing at least four evening meals since July. However, it was not the case that the carers were complying with the dietary plan and restrictions.

It was correct that he told Mr S that an evening carer visit at 8.30pm was too early, not that it was not required: ‘I knew that it would never work … I was trying to be flexible.’ Mr S had also stated that PB said that his mother was not able to get herself dressed for bed all the time, but his position had always been that she did not require a night-time carer.

The court should give weight to Article 8, to the importance of self-determination and

This was a case in which there was substantial and real family support, with a willingness to provide practical care, to the benefit of RB. Issues such as the conflict between the siblings ought to be secondary and were capable of resolution by the court making orders.

The court had tried to accommodate PB. However, there had been a number of challenges to him that had affected his attitude. He had been falsely accused by his sisters of misappropriating his mother’s money.

The focus in the proceedings had been on coercive action against him and whether that was appropriate. It would be easy, but wrong, for the court to focus on those issues rather than RB’s care and welfare. The case was about how best to provide for her welfare. The court had noted in an earlier judgment that he was a loving son. It should not be diverted into a cul-desac within which his compliance was the primary issue.

There were now competing applications for deputyship.

PB began the proceedings because he was concerned about his mother’s finances and welfare. In particular, he thought the local authority was acting unlawfully.

Not many people who would want their life to be controlled by a local authority. Fewer still would choose this particular council with its social services track record — the more so if there was someone in their own family willing to look after them. The care of many older people was organised and provided by their children. A local authority personal welfare deputy ought only to be appointed if the family were unwilling or unable to provide care, or were neglectful or abusive. That was not the case here.

The court was required to take account of what it thought RB would have wanted if she had capacity to choose. It was unlikely that she would wish to place her trust in a local authority that had removed her from her home, unlawfully and against her wishes. She had rather cantankerous views. It was highly unlikely that she would want the local authority to control and regulate her life when her son was willing for her to be assisted by professional carers.

The fact that the local authority had dealt unlawfully with RB called into their competence and ability to act as welfare deputy. There had been significant shortcomings in their management of carers, which had been explained in detail by PB and was highly relevant to the court’s decisions.

Since the last hearing, there had been total confusion surrounding the care plan. It was PB, through his solicitors, who had repeatedly sought clarification on the care plan, albeit without success. He had been ‘substantially mucked about’ by the changes to the care plan. The dietician’s report was agreed. The local authority was now content for him to provide meals. Things had turned full circle.

The local authority’s management of the care plan had been a shambles. It had caused unnecessary conflict between PB and his siblings and mother’s carers, conflict which could have easily been avoided. It had failed to action the agreed changes to the care plan following the pre-trial review on 5 July 2012; had unilaterally amended the care plan on several occasions; and had failed to properly clarify the support worker’s hours in August.

Under questioning [F31, para. 17], Mr H had accepted that the order of July 2012 required the local authority to provide a monthly report concerning day care, etc, but also that a ‘collated report’ had not been provided. The information was provided by the care agency on a daily basis and the local authority ‘could only apologise’. The ‘previous social worker wasn’t around any more.’ There should have been reports for August, September and October.

It was important that the court recognise the important contribution which PB had made in enabling his mother to live a richer life in her own home. He was a competent and willing carer who showed great concern for his mother’s welfare needs and had capacity to deal with them.

Many of the things that PB had advocated all along were now being implemented. The local

If PB and RB had listened to the local authority, she would have surrendered her home and gone to YY. The local authority got her to sign a tenancy agreement for YY. It must have known that there was real doubt as to whether her capacity to decide to keep her present home was compromised. The local authority had exposed her to thousands of pounds of rent arrears. Under questioning, Mr H had accepted that ‘in hindsight’ her capacity was questionable and that ‘on certain points’ the arrangements had been inadvisable. However, he emphasised that it was a move to a self-contained flat that was contemplated, not to an institution.

PB had given oral evidence at the fact-finding hearing which the court had largely accepted. His evidence was sincere and credible. He was a reliable historian. Any concerns about his suitability, including those arising from the facts found by the court, could be dealt with by

The section 20(2)(a) restriction would apply whether PB or the local authority was appointed

RB’s back had worsened and PB believed that this was because she is not being taken out by the carers. The local authority should be required to take her out more frequently for walks. This would also improve the quality of her life.

RB enjoyed eating meals cooked by her son . After the last hearing, it had turned out to be unnecessary and wrong to prevent him from providing meals. This restriction had affected negatively his perception of her care plan. Mr S appeared to accept that it had added to the friction and that that ‘kind of thing’ probably reinforced a lack of trust on his part.

PB was content to provide a weekly dinner plan and to record daily the food he prepared. However, the carers should be asked to provide the same information, so that there was complete transparency surrounding RB’s diet, and effective monitoring of what she eats. He continued to have concerns about the type and volume of food the carers were feeding RB.

Being able to eat biscuits or cake — Ro said that RB had a sweet tooth — and her wishes and

It was important not to over-emphasise the inchoate potential of weight gain and diabetes. If RB had capacity, no one could seriously believe that she would modify her existing diet because the dietician had told her to be more careful. Indeed, the carers gave her fruit juice and RB encouraged her son to bring prohibited items.

This was not a case of neglect or abuse by the son of an incapacitated person. There was no suggestion that he, or any of his siblings, had endangered RB’s welfare.

As far as the provision of care was concerned, there was only a narrow dispute about particular aspects of the care plan.

There was almost no evidence of RB’s care being impeded by her son’s actions.

The court had to divorce PB’s vexation within the proceedings from how he was at his mother’s home. He had complained to the care agency, but by telephone rather than by turning up at their office and being threatening. He had not abused or disrupted the carers themselves. He made a helpful contribution and the judge needed to keep his eye on the ball.

Of the paid carers, RB seemed to get on best with Ro. In her report to the Official Solicitor

PB did sometimes lose his temper but often turned out to be right on the substantive point. Quite often, the local authority later changed its position and adopted his view. The fact that the local authority could not see it at the time was frustrating for him. He had been concerned about the sloppy quality of some of his mother’s care and, without him, she would have received a lower level of support.

With regard to the alleged breaches of the interim care plan issued on 20 September 2012, PB had stormed off but there was no suggestion that any of the alleged breaches caused any significant disruption (Judge: ‘I’m not going there’).

None of the facts found by the court, or the fresh allegations, demonstrated that the care arrangements were not viable. There had been some slippage but overall the evidence was that the system was workable.

It was not appropriate to say that all siblings must have equal time with their mother simply because her daughters did not want her to spend more time with their brother. PB was ready, willing and able to spend more time with his mother than they were and, historically, had spent more time with her, cooking and providing. The inequality lay in their willingness to be involved and interact. The local authority’s position that all of them should be on an equal footing was, therefore, the wrong starting-point. The court ought to differentiate between him and his sisters, and it was wrong to deal with someone who was ready and willing to provide more care or contact on the same basis as those who were not.

PB was able and willing to provide more care to his mother and her paid carers were overworked and pressurised. Be began her shift at 6am and was sleepy and tired at night. RB did not particularly get on with her and Mr H had accepted that she did not get on particularly well with some carers. There had been problems when Ro was on annual leave. The nature of the service was that carers went on holiday, were off work or moved to another job. Sometimes RB did not get on with unfamiliar substitutes. There was no suggestion that she preferred the company of paid carers to her son’s company. She was sometimes in conflict with them. Her daughters’ sense of resentment ought not to mean a paid carer taking a slot he could fill. The obvious solution was to have RB’s care provided by her family and in particular the family member who said that he would like to do it. Mr H had said that he did not ‘discount that’.

The local authority’s position also ignored the fact that PB’s sisters were sometimes unhelpful and combative. The evidence was peppered with incidents of them complaining or expressing concerns to the care providers.

It has been agreed between PB and his sisters that DB did not use her visiting slot between 7.15pm and 9.30pm on Friday evenings and that PB could use this slot instead. PB was happy to use it but he remained of the view that he should be allowed more evening slots.

PB was concerned that his sisters, and specifically LA, had been causing their mother distress. It was clearly documented in the care notes that LA had been shouting at RB and that she was distressed by this. It was PB’s position that his sisters should be forbidden by court order from acting in a manner which caused or was likely to cause RB distress.

It would be wholly wrong to make PB’s contact with RB contingent on him accessing treatment.

PB did not accept the Official Solicitor’s submission that the court had jurisdiction to make an order that contact with his mother be suspended unless he underwent treatment. There was no legal system in England and Wales which required a person to undergo compulsory treatment except in the very defined circumstances, and for the very defined purposes, of the Mental Health Act 1983. In any case where the Mental Health Act 1983 and the Mental Capacity Act 2005 were in conflict, the former Act was to be preferred.

Even if the court had jurisdiction to make an order in the terms sought, such an order was inappropriate. It was possible that a different diagnosis was more appropriate than that given by Dr LS. Consequently, requiring PB to seek treatment for a personality disorder that he might not have was a pointless exercise.

Even if Dr LS’s report, including the diagnosis, was correct, as a matter of law the court had no jurisdiction to require someone to receive psychiatric treatment on pain of not being allowed to live a normal life which included visiting their mother. The court had previously found that PB was a devoted son and that he had taken good care of his mother over the years. It would be inconsistent to require him to seek medical treatment as a condition of remaining in his mother’s life. This would amount to a prohibition of contact, and offend against the distinction between a restriction of contact and a prohibition.

Such an order would not be in RB’s best interests. Either PB would seek treatment on a flimsy basis or he would not. If he did not, the Official Solicitor was asking someone to explain to her why her son was not with her. That would be devastating for her and not in her best interests. She herself had never required him to receive treatment and his behaviour was long-standing; for, if it was not long-standing by definition it couldn’t be a personality disorder. Such an order could not be appropriate unless the court was willing to contemplate this outcome.

Since the last hearing, PB had been offered an appointment by his local CMHT, to be assessed by its consultant psychiatrist. This was due to take place on 19 November 2012. PB asked the court to wait until he had seen his new psychiatrist before handing down a final decision. PB intended to ask for a referral for anger management therapy and to make the outcome of the assessment available to the court (but did not give permission to the court to correspond with his psychiatrist or the CMHT directly).

It was right to seek to understand PB’s needs and difficulties, even if he himself did not accept the assessments of others. Any applicant in his position would be frustrated to see their application being used to exert control over their own care of their mother.

As litigants in person, his siblings participated in discussions at court, and to that extent had more access to the local authority and the court. PB would think it unfair that he alone of the siblings was not directly engaged in court discussions. His sense of being disadvantaged in this respect would have been reinforced by seeing that his sister CL had emailed the judge directly.

It was RB who put PB in charge of her social security benefits when she had capacity. Only his sisters had questioned his propriety or suitability, without substance. He had dealt fairly with her finances and had a track record of complying with the court’s orders concerning making payments to carers.

His sisters had not attended court to support or substantiate their evidence or, in particular, to be questioned about their false allegations. PB had been questioned on some of his evidence.

PB had helped the local authority in relation to his mother’s finances and there was no evidence that he had tried to overlord it over the council or his sisters.

The court’s order(s) required him to pay the local authority £x. The local authority accepted that he had done so. PH accepted that there had been ‘no problems with that side [the financial side] of it’.

PB had some concerns about the council’s suitability to be his mother’s financial deputy. His concerns were well founded. The authority had failed to comply with court orders concerning the provision of monthly financial reports and in this respect had broken the July order. It accepted that it had not accounted to RB until the last minute prior to the next hearing.

PB was concerned that the local authority had still not refunded the surplus money in RB’s local authority account to PB, on her behalf. Whilst he was content for the authority to retain £400 as a contingency fund, it should refund the remainder, and any future surplus be refunded on a quarterly basis. Because the local authority was using no more than £200 per month, it seemed sensible to reduce PB’s monthly payments to the local authority from £350 to £250. That would reflect more accurately the actual sum required for RB’s care.

It was likely that assets existed which required the appointment of a financial deputy. If RB had money in her bank account then someone needed to access it.

The local authority’s main reason for inviting the court not to appoint PB as his mother’s financial deputy seemed to be that it would annoy his sister CL, and possibly others; that was a poor reason.

If the local authority was appointed as RB’s welfare deputy, that was an additional reason for not appointing it as her deputy for property and affairs, so as not to vest all powers over her in one set of hands. She would be wholly in their power. Insofar as the local authority did sometimes act in both capacities, that was probably where there was no family member to look after the person’s interests.

No issued had been raised by the parties as to PB’s litigation capacity.

RB’s care needs were not complex.

Mr S had concluded that the care plan provided a very good service to her, it appeared that she was content with it and the 28 March 2012 order appeared to be effective.

Mr S had concluded that RB’s care should be provided by paid carers and that her children should focus on providing love and affection.

According to Mr S, the family dynamics contaminated the delivery of care to RB. To allow her son to perform personal care tasks would be a recipe for misunderstanding and conflict in a situation where the effectiveness of the paid care depended on the avoidance of conflict between him and the carers.

For PB to visit his mother when the paid carers were not present avoided a significant risk of conflict.

All of RB’s children wished to have contact with her, it was in her best interests to have such contact, and opportunities for contact should be divided equitably.

RB had expressed the wish that she would be happy for PB to visit 2-3 times a week, not every day, with a similar pattern for her other children. Mr S had concluded that this was appropriate. Her wishes and feelings should carry substantial weight (MCA, s 4(6)(a)).

The change to the care plan on 5 July 2012, which enabled PB to provide food to his mother (cf. preparing meals for the carers to give her) appeared to have led to RB eating inappropriate food and gaining weight. Mr S had previously concluded that, without agreement to the contrary, meals should be provided by paid carers.

The care plan should be backed by an injunctive order.

Unless PB was willing to give appropriate undertakings (which would be preferable), the Official Solicitor considered that the court should grant such injunctions, backed by a penal notice.

It was relevant to consider:

The risk of harm to RB if the injunction was not granted (Is it necessary to make such an order?); and

The extent to which the injunction would interfere with PB’s freedoms (Was it proportionate to make such an order?).

As to the second issue, PB’s freedom to visit and provide care to his mother was regulated by the care plan which, for the reasons stated, was in her best interests. It was therefore appropriate and proportionate to ensure that the care plan was effective. To finalise the interim injunctions would not go further than to make a breach of the care plan by PB actionable.

Whether it was necessary to make an injunctive order depended on an assessment of risk. Risk is a function of the probability of an occurrence and the magnitude of harm in the event of the occurrence. In evaluating risk, the Court would need to consider:

The consequences for RB if the care plan was disrupted, including exposing her to conflict; disrupting her enjoyment of her other family relationships; interfering with the ability of carers to meet her needs; and undermining the viability of remaining at home; and

The likelihood of disruption in the absence of enforceable boundaries.

The magnitude of harm was potentially high. RB wished to live at home and all parties agreed that this was in her best interests, but a serious disruption of the care arrangements would undermine the viability of her remaining at home.

As to the likelihood of disruption in the absence of enforceable boundaries, it was relevant to note that:

PB had frequently challenged the adequacy of the care arranged by the local authority; and

He objected to the care plan currently in place.

Without psychological help, it was doubtful that he had the ability to resolve disagreements with the local authority or his sisters in a constructive way. The evidence for this conclusion included Dr LS’s report; PB’s lack of insight into his difficulties; the fact that he considered he had been victimised for challenging the quality of RB’s care; the fact that he had said that he would cease to be involved in her care if the local authority was appointed as her personal welfare deputy; his admitted instances of aggressive or inappropriate behaviour; and his conduct within the proceedings, including his behaviour outside court on 5 July 2012.

This was not an appropriate case in which to appoint a personal welfare deputy.

A decision by the court was to be preferred to the appointment of a deputy to make a decision (MCA, s 16(4)).

The court could appoint a personal welfare deputy where, for example, there was a need for ongoing decisions, there was a history of serious family disputes that could have a detrimental effect on the person’s future care unless a deputy was appointed, or there was a need for ongoing personal welfare decisions to be made by someone independent of the family, such as a local authority officer (Code of Practice, paras 8.31, 8.38).

Practicality was an important consideration: it could be appropriate to appoint a deputy where the need for a series of decisions made it impracticable to insist on them being taken by the court (G v E [2010] EWHC 2512 (COP), paragraph 59, per Baker J). However, Baker J made it clear that the importance of the s 16(4) principle was undiminished.

The parties in this case would need to work together on an enduring basis. Day to day issues which were capable of resolution by agreement would not require the involvement of the court or a personal welfare deputy. If, on the other hand, a contentious issue were to arise in the future, it would be more appropriate for the court rather than a deputy to resolve the dispute:

It was not necessarily for the court to direct PB to undertake any of the recommendations made by Dr LS.

PB should be invited to confirm whether he intended to act on Dr LS’s recommendations of his own volition.

Although Mr S had expressed the view that an advocate might assist Mrs B, she had declined the service and had already expressed her wishes and feelings. Her daughters were concerned that she had been distressed by the number of new professionals involved since the proceedings began. At this stage, it would be appropriate for the local authority to keep the suggestion under review, and to consider whether an advocate would assist once final declarations had been made and the parties had had time to reflect upon them.

Ms S had also proposed mediation. While the Official Solicitor would not oppose mediation taking place if Mrs B’s family were all willing to participate, in view of the historical disputes mediation seemed unlikely to result in any desired rapprochement or significant benefit to Mrs B. In any event, it was imperative to achieve clarity and stability in respect of her care package and contact with her family by obtaining final declarations.

Although not instructed in relation to the property and affairs element of the proceedings, it would be appropriate for the court to resolve the welfare aspects of the case prior to the financial issues. Any orders made in relation to Mrs B’s property and affairs should reflect and be consistent with those made in relation to her welfare.

At the commencement of this hearing, the Official Solicitor’s view remained that there was no real alternative to a final order backed by injunctions or undertakings. He was more pessimistic about the need for committal proceedings, and his current position was that it was appropriate to make an application for committal. He had no desire to see Mr B in prison. His only concern was to secure compliance. A suspended order would be the first step.

At 3pm on the second day of the hearing, after an outburst and before PB gave his evidence, counsel announced that the Official Solicitor had revised his position. He now supported the local authority’s application to be appointed as RB’s welfare deputy provided their powers were narrowly drawn and limited to amending the care plan, including contact. A hearing should still be diarised for six weeks time so that the court could deal promptly with any contempt of court applications with a view to the granting of an unless order.

At the conclusion of the hearing, counsel for the Official Solicitor made the following supplementary submissions:

The Official Solicitor had no position and noted only that there was some logic to appointing the same person to be both the personal welfare and financial deputy.

The Official Solicitor endorsed his position statement at A/75 as to why the local authority care plan then proposed was the appropriate one.

In terms of the care plan, at the heart of the case was the need to separate the provision of care

Everyone seemed to agree that, in terms of her best interests, the most important factor was that care at home be viable. Unless paid care at home was viable, RB would not be able to remain at home.

As to Article 8, and achieving a proper balance that respected the family rights of those involved, and their right to privacy and a home life, the care plan was not a restrictive one.

The Official Solicitor endorsed his reasoning at A76-A78, which was fortified by the facts found by the court at the recent fact-finding hearing.

Mr Simblet’s eloquent efforts to refute the impact of PB’s conduct could not withstand analysis in the light of PB’s conduct in the court room and witness stand, and in the light of the facts found at the fact-finding hearing.

If the court was satisfied that it was appropriate to impose injunctions and penal notices on PB then it was obviously inappropriate for him to be personal welfare deputy.

The Official Solicitor had changed his position in relation to the local authority’s application to be appointed as RB’s personal welfare deputy. However, the welfare deputyship should be limited in scope. The Official Solicitor would not support giving the local authority a power to change RB’s place of residence, only a power ‘to tweak the care plan and with it the contact arrangements.’ In the Official Solicitor’s view, this followed inevitably from the evidence.

The potential pathways had been sketched out. The local authority as personal welfare deputy would be invited to police the order.

By section 20(2)(a) of the Act, the court was not permitted to give a personal welfare deputy

As a matter of law, the question arose whether making an individual’s contact with ‘P’ conditional on the fulfilment of conditions amounted to a restriction of contact, or a prohibition contrary to section 20(2)(a).

‘Prohibited’ had to be contrasted with ‘restricted’: see Tool Metal Manufacturing Co v Tungsten Electric Co [1955] 1 WLR 761. As a matter of ordinary language, a ‘restriction’ denoted a limitation of contact whereas ‘prohibition’ denoted a total prevention of contact.

The court could prohibit contact between an individual and ‘P’ but a personal welfare deputy could not. S/he could only restrict contact, including by requiring the individual to comply with certain conditions. This was subject to the caveats that the condition(s) must be reasonable and capable of compliance, otherwise the imposition of the condition would, in truth, amount to imposing a prohibition.

The court had to be satisfied that without treatment contact was inappropriate because the care plan would be put at unacceptable risk of becoming unviable. The court had to be satisfied that such a requirement was necessary and proportionate, i.e. that it was a more proportionate means of safeguarding RB than other routes such as imprisoning PB.

The court should make the order and then work with the personal welfare deputy to police the order. The justification for the approach rested and relied upon:

The scale of PB’s behavioural problems, as shown by the facts found at the factfinding hearing.

The scale of PB’s behavioural problems, as shown by his behaviour in court and in the witness box.

His need to receive psychological treatment, as set out in Dr LS’s report. PB was unlikely to accept treatment of his own volition, which left as the only option progressing to more Draconian action.

The court’s finding at the conclusion of the fact-finding decision, where the judge urged PB to accept medical help as the only real alternative to a conventional enforcement strategy. He had not taken up that option to seek help.

How would this work in practice? The OS suggested the following wording: ‘Unless PB forthwith seeks treatment for personality disorder and tells the welfare deputy of the steps he has taken to undergo such treatment, within x days of being asked, then contact between him and RB may be stopped/suspended’ coupled with an order empowering the welfare deputy to suspend contact between PB and RB if PB was not complying with a condition of the requirement.

In that way, the welfare deputy would be the eyes and the ears and the order allowed for a flexible response. It was understood that the local authority would identify someone other than Mr H to be the ‘supervisor’ so as not to undermine Mr H’s relationship with PB.

In the event that contact was suspended by the welfare deputy, the care plan would need to include a contingency arrangement for providing RB with the meals which currently t was envisaged her son would prepare and provide.

A review hearing in December could review how the arrangement was working and address any breaches alleged by the Official Solicitor, local authority or PB’s sister.

Without independent historical information regarding childhood development, it would be difficult to confirm or refute a diagnosis of Aspergers syndrome. However his interviews with me, and — as far as I can tell — the dominant theme in his interactions

It would seem to me that an ‘unless order’ approach would be much more likely to be successful than one based on a suspended order for committal to prison.

In the past, Mrs B has experienced mood swings, low mood, poor motivation and paranoid

As someone with a history of fragile mental health, it is particularly important to ensure that she is not exposed to high levels of conflict and stress.

Unfortunately, there is a long history of conflict between PB and his sisters which is likely to continue indefinitely. Apart perhaps from DB, all of her children bear significant responsibility for the family conflicts that have brought this case to court.

Mrs B’s care needs are relatively simple.

She already lives in a sheltered flat with a warden on site.

In March 2011, she received an occupational therapy assessment and was found to be ‘functionally independent at home.’

The care she requires in her own home presents only ‘conventional and low-key challenges in line with what might be expected given her diagnoses.’

She is only 71 years old. If her family can be more co-operative, it is likely that she can live in her own home for a considerable time.

RB herself has cooperated with professionals and paid carers ‘well within the parameters of what might be expected with someone affected by the level of her disabilities.’ Any reluctance on her part has been sporadic.

The difficulties have not been generated by her, or by her care needs, but by the ‘sensitive, volatile and powerful family dynamics’ around her.

As the care agency manager observed, his agency deals with ‘a lot worse cases … she would not be considered a priority case, but the family tensions have made it so … Even fairly trivial things will escalate, for instance a daughter will telephone us and tell us that RB is waiting outside … and they want us to telephone the police.’

On 3 September 2010, it was recorded that RB had put on weight.

On 4 May 2012, it was recorded that she had lost 9.9kg in the past 22 months, equal to 11.6% of her bodyweight.

On 1 October 2012, it was recorded that she had gained 3.5kg in the past five months (4.4% of her body weight). Her weight was 78.8kg and her target weight 70kg.

Mrs B does not have diabetes.

On 1 February 2012, her blood glucose level was 7.5 mmol/L but there was uncertainty as to whether she had fasted. On 25 May 2012, the level was 6.2 mmol/L (normal = 3-6 mmol/L).

On 1 October 2012, a dietician suggested that food record charts be kept for self-monitoring purposes. However, her case no longer required further intervention and no follow up was arranged.

Responsibility for periodic weight gain cannot be laid solely at her son’s door, as has sometimes been implied. She always has had a sweet tooth. On 3 September 2010, it was noted that she had put on weight and liked to eat sweet things. Because of time constraints, most of the meals provided by her paid carers were ready-meals, ‘which tend to have a higher fat, salt and energy content.’ Day centre staff were not aware of her ‘healthy eating needs’ and gave her two biscuits with her mid-morning tea. The paid carers, as well as PB, have given her sugar-rich food at home.

There is a value to enjoying what you can while you can and RB has relatively few pleasures. It is important not to reduce them unless necessary and to balance quality of life with longevity.

RB’s diet has been a cause of conflict and resentment even though it is a relatively minor issue at present. One of the benefits of living at home is being able to indulge oneself free from public control and guidance. There are cases where an incapacitated person’s dietary or other habits puts their health at serious immediate risk but this case falls well short of that.

There has to be some leeway or margin — more than there has been to date. In a domestic situation full of emotion and conflict, differences of opinion about biscuits and cake, and how to control RB’s preference for certain foods, have provoked more discussion and conflict than they merited, and so been the cause of unnecessary friction.

The hallmarks of this case have been intolerance and interference. Too often, family members (and occasionally professionals) have been unwilling and/or unable to tolerate something they disagree with or disapprove of — to let something go without making an issue of it. Every possible point has been seized and argued over without proper regard for whether its significance justified worsening relationships.

The focus needs to be on managing those conflicts which, if not managed, may put RB’s residence at home at risk.

RB has suffered from cellulitis and oedema.

She needs to elevate her legs to reduce the risks and it is important that she does not sleep with her legs down.

Without prompting and/or assistance, RB may fall asleep in her chair and not go to bed.

The evidence as to how often RB has slept in a chair is unreliable. On some days, the morning carer has to make her bed because she has slept in it. However, sometimes she

As far as the evidence allows, the current situation is satisfactory. There are few recent reports of RB still being in her day clothes the next morning.

It seems sensible that morning carers monitor and record whether RB has been to bed and that the situation is reviewed periodically by the local authority. This (it was suggested) could involve the district nurse visiting to establish the reason, followed by the GP and the twohour slot being resurrected. However, how best to keep the situation under review will fluctuate with her medical condition, needs and wishes. It is not appropriate or helpful for the court to be prescriptive. Unless the suggested mechanism is obviously inappropriate, and not in the person’s best interests, the court should let the professionals exercise reasonable professional discretion.

What is important is that any signs of a return or worsening of RB’s cellulitis or oedema are dealt with promptly; subject to that, her overriding need is for everyone to focus on minimising conflict and fostering better relationships.

RB’s back pain and quality of life may improve further if she can be taken out more often for walks, and motivated to do this, as suggested by her son.

In the past, PB has cancelled evening care visits, saying they were not needed and that he would look after his mother.

The need for an evening visit has variously been said to be ‘to assist with her personal care’; that it enables personal care to be delivered by a female; ‘to see to toilet accidents’; to ‘support her to prepare for bed’; to give medication; ‘to assist with any personal care tasks and to provide a hot drink and medication’; to check her well-being; to shut windows and secure the property; and that it allows the situation to be monitored at the end of the day.

There is no evidence that RB has a ‘continence problem’ and she is hardly ever in bed before

In the past, evening visits took place too early, initially at 5 or 6pm, then at 8pm, when there was not much for the carer to do, and more recently a two-hour slot beginning at 9.30pm. Because RB was not ready for bed, there would be no personal care to deliver and again the carer often spent two hours sitting around.

Often, RB can dress herself, get into her nightclothes and wash and brush her hair independently; sometimes, she needs prompting. She does not receive Attendance Allowance for night-time needs, only the lower rate for daytime care or supervision.

Given her habits — ‘She clearly doesn’t like having people around in the evening’ (PH) — and the fact that paid carers visit in the day, half-an-hour’s help with her bedtime routine, each evening between 10.30 and 11.00pm, is likely to be sufficient.

The primary purpose will be to check compliance with the care plan and that she is ‘ok at the end of the day,’ and (if asked for or appropriate) to help with personal care. RB will decide whether she is ready to go to bed.

I accept that If PB is the last person to be with his mother each day there will be no final check on compliance with the care plan, and that at present this is undesirable. PB might be tempted to stay longer than his mother wishes or requires — what Mr S referred to as ‘loitering with the best of intents.’

In the quite recent past, MG concluded that RB wished to remain at home and to be independent, and that she appeared to have capacity to make this decision.

She is still able to articulate a clear wish to remain in her own home for as long as possible.

She expressed this wish to her son on 25 May 2011, to the best interests assessor on 21 June 2011, to Dr M on 24 June 2011, to the best interests assessor in August 2011 and to the Official Solicitor’s solicitor on 7 December 2011.

Although she has twice visited YY, she does not wish to live there.

She understands that she may need residential care in the future.

Since returning home to R Close on 9 January 2012, she has been happy there.

According to the manager of R Close housing complex, she is ‘fine where she is for the time being.’

Although RB now lacks capacity to decide where to live, she is very near the boundary in this respect. Her strong and consistent wishes are to be given very considerable weight.

It remains in her best interests to continue to live at R Close and for care and family contact arrangements to be based around a life at home.

Because RB’s treatment and care needs are relatively simple, ordinarily it would not be difficult for her to live in her own home and to receive such care or help there as she requires.

Because she has expressed such a strong and clear wish to remain in her own home, and her relatively simple needs make it realistic to provide care in that setting, the aim must be to secure an arrangement that enables her to be at home for as long as her health allows.

To allow her children or anyone else to disrupt and destabilise her home life and care so that she loses her home — because of their behaviour not her needs — would violate her right to respect for her home and private life, and be a complete travesty of justice. As with any form of domestic abuse, the court would need to restrain the perpetrator, and suspend contact, rather than manage the violation by ousting the victim from their own home. Because the perpetrator possessed capacity to choose how to behave, the loss or reduction of contact — painful as it would be for their mother — would be something they had caused. The counterpart of capacity is accountability for acts autonomously done and they could not properly claim to be the victim.

In my opinion, therefore, the factor of magnetic importance in this case is to secure an arrangement that enables RB to live at home for as long as her health allows, and to manage any significant risk that she may lose her own home before her health requires that.

RB’s attachment to remaining in her own home is such that, if it comes to it, it is likely that she will be happier living in her own home with less contact with her children than in a more institutionalised setting. She would be upset to have little or no contact with a loved child but less upset than ‘being taken into care’ through no fault of her own, because they were disrupting her care.

The only significant present risk is that family conflict and/or family-professional conflict may make the provision of care at home untenable, for example because the care agency withdraws or because it is seriously affects RB’s health. At the hearing, the independent social worker told me that the balance of the current care plan was ‘as good as it can get in this extremely difficult situation’. However, the chances of the care plan working were no higher than 50%, even if one was realistic about tolerating a little bit of slippage.

RB is a very private person who does not like any interference in her life. Disruptions to her routines tend to upset her.

RB does not wish to live with her children, or to be looked after by them, because she feels that they interfere:

RB would like all of her offspring to stop attempting to control her. Her own aspirations have been rather smothered by the powerful personalities of her off-spring.

RB is upset that her children do not get on and are always arguing.

I accept that relatives often want to supervise the care provided by paid carers, that some paid carers have been young and inexperienced and that RB benefits from having a pool of carers who are familiar with her needs. However, it is a fact of life that all local authorities use care agencies, budgets are limited, staff are overworked and there are too few of them. The local authority has gone to considerable effort to bring in carers who RB knows and gets on with. 62. I do not accept, at any rate without qualification, Mr S’s opinion that RB only wishes to have

In my opinion, Mrs B’s wishes as to how much contact she wants varies depending on the levels of conflict and interference, and how upset she is, at the particular time. For example, she has dealt with conflicts involving her son by asking him not to visit for a while where his visits have led to conflict with people she lives among; this, I suspect, is to protect his interests as well as to provide respite. On other occasions, she seems to enjoy seeing him more than two or three times a week, she likes his meals, and so on.

MG referred to RB’s ‘fierce devotion to her son.’ When she had capacity, she chose to continue to maintain a relationship with him despite knowing the knock-on effect this had with her daughters. Most of the time, she enjoys seeing her son and is protective of him:

I accept that RB’s daughters are devoted to her and have provided her with a great deal of love and affection.

Their brother’s recent behaviour towards them has quite often been confrontational and upsetting, and often he cannot control what he says:

Having acknowledged that, I have come to a very clear view that one of the problems in this

The evidence does not support a finding that all of the conflicts in this case can be attributed

Although necessarily the focus has often been on PB’s conduct, CL’s conduct, and to a lesser extent that of LA, have contributed significantly to the conflicts and disagreements that have characterised this case.

I accept that sometimes PB’s sisters have been ‘unhelpful and combative. The evidence was peppered with incidents of PB’s sisters complaining or expressing concerns to the care providers.’

The viability of any care plan requires much clearer expectations of what is required from them in terms of their future conduct, the making of allegations and complaints and the level of unnecessary interference in the provision of care.

They, as much as PB, must ‘rein it in’ much more than has been the case to date. The court will need to set down a clear framework for them if they cannot achieve this through mediation, greater self-control , greater co-operation or less formal means.

PB’s sisters have made serious and hurtful allegations and assertions about him that have not been supported by the detailed information necessary for me to give them weight. (For example, that he suffered a brain-injury that affected his behaviour, that he has relevant criminal convictions and that an ASBO was taken out against him.) At present, the evidential value of these allegations and assertions is zero.

On at least three occasions, PB’s sisters have alleged or raised financial impropriety:

The court does not wish to hear those allegations repeated unless supported by very clear evidence. By their nature, unsupported allegations of such a kind are insulting, raise the temperature, worsen relationships and provoke a response.

CL and LA have persistently criticised and undermined their brother’s efforts and this has had a detrimental effect on his mental health and conduct. They seem to have almost nothing positive to say about him, not just vice-versa.

PB’s sisters often appear to have the same difficulty he has in always having to take a point:

In my view, there is compelling evidence entitling me to find that CL’s behaviour in particular has contributed significantly to the level of family conflict that has undermined and threatened her mother’s care:

RB’s solicitor ‘did not notice that her health/condition had deteriorated noticeably from when I met her at B Lodge …’

One of RB’s main paid carers, Ro, had not noticed any change or deterioration in RB since her move from B Lodge.

PB had not interfered with her care since her return home and his behaviour had improved greatly. He could be a great help, drying her clothes and preparing meals.

I accept that YY has much to offer. However, frequently CL and LA have been unable to differentiate between their own wishes and feelings and those of their mother. RB did not wish to move to YY, which was in an area where she did not wish to live. Even though their mother clearly wished to return home, and was content at home, they argued otherwise.

In terms of the quality of their relationship and contact with PB, CL and LA have all of the usual protections and remedies offered to people by the criminal and civil law. In terms of their mother’s contact with him, she wishes to remain in her own home and, like most parents, to see all of them there.

To reiterate, I find that the situation is not as straightforward and one-sided as has sometimes been portrayed.

PB has demonstrated many virtues:

He is kind-hearted and compassionate.

He is a devoted son who has taken good care of his mother over the years and is committed to her welfare:

There will have been many occasions when his visits went well and nothing was recorded because nothing noteworthy occurred — what I call ‘the silent evidence’.

He has been willing to try to resolve the family disputes through specialist mediation: ‘Yes, I am prepared to give it a go.’

He has acknowledged that he can be difficult at times.

He has made genuine attempts to modify his behaviour and to observe the court’s orders since December 2011:

Since this hearing, it appears that he has been seeing a psychologist weekly ‘in order to be fully involved with his mum’s best interests.’

At the fact-finding hearing, in most respects he was a sincere and credible witness. (In my opinion, much less so at the final hearing.)

As concerns PB’s mental health and conduct, I have confined myself to Dr LS’s medical report, Mr S’s observations (he is a very experienced mental health social worker), the quality and content of Mr B’s communications in writing and in court, the findings of fact on disputed matters, his own evidence, and any relevant evidence of professional witnesses I found to be reliable, in particular Mr H.

Dr LS stated that PB met the criteria for a paranoid personality disorder. ‘He agrees that he is excessively sensitive and does not forget perceived insults or slights. He also admits being suspicious, and the history as documented above provides many examples of his interpreting intentions as malign … His combativeness and tenacious sense of personal rights are a constant thread running through the history and mental state.’ Others were invariably against him and he was never in the wrong in such cases.

PB’s explanation that a lot of what he told Dr LS was untrue is implausible. Most of the facts and opinions set out in Dr LS’s report are consistent with the overall picture and the undisputed facts.

PB’s social manner, as noted by Dr LS, Mr S and the court, is relevant. It is possible that not all relevant diagnostic issues and treatment options have been fully explored.

PB’s engagement with psychology services since the last hearing demonstrates a commendable willingness to address some of the underlying issues. However, he is unwilling to allow the court to write to his local CMHT. Therefore, I do not know whether, and to what extent, existing therapies are helping him and whether more could be done. Nevertheless, it is a good start and he deserves credit for his decision.

Without being able to give any guarantees, I have told PB that demonstrating that he is willing to undergo a full assessment of any unresolved diagnostic issues is likely to help, rather than hinder, his case. To date, I have been unsuccessful.

Some of his conduct in the proceedings, in and out of court, has (to put mildly) not helped to

The local authority has been heavily criticised by PB.

Contrary to what he believes, the local authority has been understanding and tolerant. It has yet to make a committal application.

I was impressed by Mr PH. I thought that his evidence was fair and measured. He readily conceded valid points under cross-examination. He was flexible and willing to look at all possible ways of resolving relevant issues and accommodating individual concerns.

I have reservations about EC’s input in 2011 and the length of time RB remained at B Lodge — and was then subject to a deprivation of liberty authorisation — following her ‘respite admission’ and the best interests assessment of 19 June 2011.

The decision to get Mrs B to sign the tenancy agreement for YY on 22 July 2011 cannot be supported. It is correct that she accrued several thousands of pounds of rent arrears in respect YY before agreement to write off this (potential) liability was reached.

At times there has been confusion surrounding RB’s care plan. Sometimes it has not been possible for family members or paid carers to locate the current plan. More particularly, the local authority did not action some agreed changes to it after the pre-trial review on 5 July 2012. Collated monthly care reports were not provided by the local authority for August, September and October 2012.

It was alleged that the council’s management of RB’s care plan caused unnecessary conflict. Any avoidable conflict caused by it in this respect is insignificant compared with the conflict generated by her children.

Probably because of funding and work pressures, PB’s application to the court was not dealt with as quickly as he would have wished. The local authority only became aware of the court’s order of 13 April on 14 July 2011. Even then, it was not until 16 August 2011 that it completed an Acknowledgement of Service. The final hearing listed for 13-15 December 2011 had to be adjourned, at least in part, because of the local authority’s failure to provide Mrs B’s social care records in time. In February 2012, the independent social work expert recorded communication difficulties which had caused him inordinate organisational problems, ‘possibly emanating from the local authority’. On 16 March 2012, the Official Solicitor applied, with the consent of the other parties, for the final hearing to be postponed, because the local authority’s evidence had been filed late. I do recognise that the volume of correspondence and complaints generated by RB’s children have made it a very difficult case to manage and progress — including for me and court staff.

PB was of the view that he should be allowed more evening visiting slots.

I acknowledge that:

PB would like to be allowed to visit his mother when carers are present.

He would like to be permitted to care for her on his own four evenings a week from 6pm until bed time.

He is willing and able to provide personal care to his mother, with help from paid carers and the local authority as appropriate. (That is not in question.)

He has provided more care than his siblings, and his mother’s paid carers are overworked and pressurised.

There is no clear evidence that his mother prefers the company of paid carers to his company, provided that she is free from upsetting conflict.

On its own, resentment ought not to mean a paid carer taking a slot he can fill.

Things which he has advocated for some time are now being implemented.

He has demonstrated that he has a good understanding of his mother’s wishes and preferences.

Much of the care plan is agreed by all parties and there is only a fairly narrow area of dispute about particular aspects.

Notwithstanding these observations, I find that it is not presently in Mrs B’s best interests for her son to provide evening care four evenings a week, to be allowed to visit her when carers are present or to provide personal care to her (other than meals).

My overriding reason for reaching this finding is that at present PB’s behaviour — his anger and problems with self-control, the number of disagreements and disputes he is embroiled in, his approach to his sisters and some carers, his problems observing agreed rules and plans — makes this impractical. Although he has demonstrated a good understanding of his mother’s wishes and feelings, he has also demonstrated that he has a poor capacity to control his frustration and anger, to work with others and to accept the realities of the quality of care that can be provided by care agencies.

Having regard to those factors, and the incredibly difficult family dynamics, I therefore accept the professional opinions that at present:

In terms of her best interests, the most important factor is that care at home is viable.

Providing in the care plan for PB to provide personal care ‘would be a recipe for misunderstanding and conflict in a situation where the effectiveness of the paid care depended on the avoidance of conflict between him and the carers.’

Unless paid care at home is viable, RB will not be able to remain at home.

It is in RB’s best interests for paid carers to deliver care ‘and for the family to focus on delivering love and affection.’ (This arrangement was supported ‘one-hundred per cent’ by PH, and also by social worker JR on 19 June 2011.)

For PB to visit his mother when the paid carers are not present avoids a significant risk of conflict. He is often preoccupied with what he thinks is wrong or deficient: ‘PB is always looking for faults and has a notebook , … he can be a bit over-controlling …’ (and witness the volume of correspondence and complaints).

PB has yet to demonstrate that he can adhere consistently to an agreed plan which takes into account the views and contributions of his mother’s carers and other family members.

He likes to deliver as much care to his mother as possible and has found it very difficult to stick to rules and agreements. With regard to the evening care slot, there is a significant risk that he might stay overnight, to be with or look after her.

The consequences of PB failing to comply with the care plan regularly, and turning up at unscheduled times, include RB experiencing stress and psychological harm, together with problems for the paid carers, some of whom could be frightened, thereby making it hard to maintain the care regime.

I do not accept that there is ‘almost no evidence of RB’s care being impeded by her son’s actions,’ except in the limited sense that he has not physically interfered with a carer performing a particular piece of personal care. His actions have certainly ‘impeded’ the delivery of the limited care which RB requires.

I accept that some carers are tired at night; that there have been problems when Ro is on annual leave; that the nature of the service is that carers go on holiday, are off work or move to another job; and that sometimes RB does not get on with unfamiliar substitutes.

I do not accept at present that the ‘obvious solution’ is to have RB’s care provided by her family and in particular the family member who has said that he would like to do it. PB may well be able to provide more personalised care — many families do provide most of the care themselves — but at present this would come at too high a price in terms of the conflict and upset generated, which his mother would have to endure; and she likes a quieter life with much less conflict than has been inflicted on her by her children. The care which the care agency provides is adequate and helps to shelter her from distressing family conflict. In March 2012, although appearing reluctant to discuss the issues of her residence, care and contact, Mrs B stated that she was ‘happy’ to be living in her own flat again. She stated that it was ‘alright’ for Mr B to visit as he was doing at that time and said that the current care arrangements were ‘fine.’

In September 2012, although appearing reluctant to discuss her residence, care and contact, Mrs B stated that she wanted to remain living at home and that the current level of care that she was receiving was ‘alright.’ She did not want her children to provide any additional care for her and that she was happy with the frequency with which she saw them.

RB enjoys the food prepared by her son and facilitating this helps his overall satisfaction with the care arrangements.

The food he provides appears to be more nutritious, and more to his mother’s liking, than the ready-meals provided by paid carers.

No adequate, alternative, ready-meal providers have been identified (within the available budget, I assume).

It was agreed that the care plan should be modified to enable PB to both prepare and provide his mother with evening meals on Monday, Tuesday, Wednesday and Friday each week (as compared with personal care such as washing, bathing, etc).

PB agreed that he will provide a weekly food menu and keep a basic food diary that does not require recording every ingredient.

Problems will arise if PB cannot adhere to his time slots for evening meals. He has demonstrated problems keeping to ‘rules,’ and Mr S was ‘less optimistic about his chances of keeping to such a routine having read the medical record, though not perhaps quite as pessimistic as Dr LS.’

The local authority told me that it has tried to put all of the siblings on an equal footing. All

Mr S’s view was that, if RB was asking for more contact with or care from PB, it was right to

In general terms, my simple view is that the court should prefer whichever arrangements are

Equal is not necessarily the same thing as equitable. I would not object to PB spending more time with his mother, or doing more for her, merely because it departed from precise mathematical equality. However, at the moment, I find that this would not be in her best interests because a period of greater calm is required. Before this is appropriate, PB needs to demonstrate that he can control his behaviour more effectively. His mother is upset by the conflicts he becomes involved in.

There were times when I felt that PB was under the misunderstanding that I need to be satisfied that his conduct will continue to create conflict. I am already satisfied on ample evidence that he has caused conflict with his mother’s carers and that his personality is such that this is likely to continue unless and until he can demonstrate that there are grounds for reviewing and revising this finding; for example, by a period of non-conflict or a report that he has undergone a successful programme of treatment.

I accept that, given the number of people involved in RB’s care, professionals will know ‘pretty quickly’ if anything is going wrong.

Regular monthly care plan reviews, moving to three monthly reviews, seems sensible but it would not be helpful for me to be prescriptive.

It is common in the Court of Protection for one child to look after an incapacitated parent’s finances. This avoids unnecessary work and complication.

PB is already his mother’s appointee to the exclusion of his sisters and the local authority is content that this arrangement should continue. To this extent, he already has ‘an elevated status’. 124. He has helped the local authority in relation to RB’s finances and there is no evidence that he has tried to overlord it over them or his sisters. PH accepted that there had been ‘no problems with that side [the financial side] of it’. His sisters’ criticisms of his financial management have not been made out. Therefore, there is no good reason for changing the arrangement, which has proved to be workable and to promote his mother’s best interests.

The only real practical issue is whether his mother’s bank will allow him to access her account as appointee, or will require him or some other person to be appointed as her deputy. Banks vary on this.

Because he has a good record as appointee, there is no reason to think that he would not be a suitable deputy for property and financial affairs if his mother requires one. Her income and outgoings will be the same.

His behaviour in relation to his mother’s care has sometimes been contrary to her interests and has needed to be controlled. His management of her finances has promoted her interests and has not needed to be controlled. At present, there is no good reason to remove the financial function from him. He deserves praise in this respect. To take the function away would be unfair and give him the impression that the court does not ‘do as it finds’.

On the evidence, I find that RB’s general preference has been for her son ‘to look after her finances rather than any other family member, as she saw him more often.’

Some of PB’s concerns about the council’s suitability to be his mother’s financial deputy were well founded:

The way in which the tenancy agreement for YY was signed, and rent arrears accumulated, was unsatisfactory;

The local authority failed to comply with court orders concerning the provision of monthly reports;

PB was concerned that the local authority had still not refunded the surplus money in RB’s local authority account.

On the evidence, I find that to date PB has managed his mother’s finances rather better than has the local authority. I am sure that the local authority has the capacity to perform the function if PB’s financial management interferes with the delivery of care to his mother in the future. I will replace him if the circumstances merit it. At the moment, in my view, they do not.

Having acknowledged his suitability, at present there is no clear reason to appoint a deputy for property and affairs. The arrangements seem to be working well without a deputy having been appointed. Therefore, I will give PB the necessary ‘investigate and report’ power to enable him to establish his mother’s assets and liabilities. If his report indicates that one or more banks will not allow him to access her savings, or to operate an account, unless he is appointed as her deputy, (as matters stand) I will appoint him or provide him with a single order enabling access. (Although short orders no longer exist, in general a single order is to be preferred to the appointment of a deputy.)

Obviously, a deputyship carries with it annual fees, the need for a bond and various reporting requirements, which are best avoided if no deputyship is necessary.

Before turning to future arrangements, and the terms of the court’s order, it is worth briefly taking stock of where matters currently stand.

To make a banal observation, in life generally, and mental health and family work particularly, it is advisable to have a realistic measure of what constitutes success or failure. Whether a care plan has been satisfactory, adequate, inadequate, successful or unsuccessful partly depends on the aims, expectations and perspective of the individual making the judgement. By analogy, if a patient expects or hopes that a particular drug will cure him of his illness, rather than alleviate the worst symptoms, he but not his doctor may later consider that the treatment was a failure. What constitutes failure depends on how failure is to be measured, e.g. failure to restore normal health or failure to improve the patient’s function in certain key areas.

In RB’s case, amongst all the difficulties, it is important not to forget that there has been some progress:

RB has been discharged home in accordance with her wishes.

Any deprivation of her liberty that occurred at B Lodge has been ended.

Hotly disputed capacity and factual issues have been determined.

The court has a final report from an independent social worker as to RB’s residence and best interests, good evidence as to how she has fared at home since January, information from a dietician and a psychiatric report on PB.

In his addendum report of 8 May 2012, Mr S noted that Mr H was ‘very pleased with the way the care plan was operating …’ and that the care agency manager had commented that, ‘Things are going well and the current situation is probably sustainable for a reasonable period … PB has, as far as we know, stuck to his routine and has been compliant.’

At the fact-finding hearing on 10–12 September 2012, the Official Solicitor noted Mr S’s conclusion that the care plan provided a very good service to RB, she was content with it and that the 28 March 2012 order appeared to be effective. All of the professional evidence indicated that she was being well supported and appeared content in her own home. The contact schedule was by and large working well.

Services have devised helpful strategies to manage RB’s episodic reluctance to engage with care support staff and family and social conflicts.

PB has decided to undertake some psychology sessions.

It is not all doom and gloom therefore, provided one takes a realistic perspective as to what is achievable and the time-frame within which it can be achieved.

In my opinion, it is not realistic to expect an outbreak of family harmony and an absence of all aggravation. It is realistic to work towards a reduction in the disruption to RB’s care caused by her children which is sufficient to enable her to remain in her home for as long as her health permits.

Mrs B has no doubt had had to cope with unpleasant disagreements generated by her children for many years, so what we are aiming for is containment at a level that does not put her residence at home at risk or cause her more distress than she can cope with. Within this context, an obsessive interest in how many cakes she has eaten, who provided them, etc, is unhelpful, as is too much inflexibility about bedtime routines provided that there is no evidence that her oedema is returning or deteriorating, so as to cause her discomfort.

I find that, so far as reasonably practicable, RB 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.

There is no realistic prospect that her capacity will improve within the time available to enable her to make these decisions for herself. The relevant decisions must be made for her.

I have set out RB’s wishes and feelings and the weight to be attached to them. Her wishes

I have also set out the views of family members, professional carers and the other considerations that I consider to be relevant.

I have come to the view that the factor of magnetic importance in this case is to secure an arrangement that enables RB to live at home for as long as her health allows, and to manage any significant risk that she may lose her own home before her health requires that.

Section 1 regards me to have regard to whether the purpose for which the decisions are

The objectives and the shape of RB’s care plan.

The order the court should make

What to do in the event of breaches of the court’s order or the care plan

RB wants to live at home and her care needs mean that this ought to be achievable.

The overriding objective of the care plan is to ensure that she can live at home for as long as possible.

In order to achieve this objective, the care plan also needs to ensure that she can be adequately cared for in that setting.

Personal care (other than the preparation and provision of meals) should be provided by a care agency rather than by a family member.

The court order should be no more prescriptive about the contents of Mrs B’s care plan than is absolutely necessary.

Although it is necessary to give a clear steer as to the main matters in dispute, Mrs B’s medical condition and needs, and therefore the shape of her care plan, will change over time. It would not be appropriate for the matter to have to come back to court each time the detail needs amending, or there is an objection to a proposed change, for example that evening care should commence half-an-hour earlier or later.

It is not this court’s function to adjudicate on the adequacy of RB’s care whenever a family member thinks that the quality of local services ought to be better. A person who loses capacity is no more entitled to an ideal care package than they were just before they lost capacity. What can be provided will still be subject to the same framework of statutory duties and budgetary constraints. To be blunt, their local services will be as stretched and under-funded as they were before; care agency staff will often be temporary, unqualified and lowly-paid; family visits may not always be possible at the ideal time; and compromises will be necessary. There is little the court can do to resolve these dissatisfactions, which have more to do with central and local government decisions about what resources can or should be made available to individuals than with the court deciding what to receive on their behalf.

Broadly speaking, it is for the NHS and the local authority to assess, within available resources, what publicly-funded medical and care services Mrs B requires. Insofar as this court has a contribution to make in a case such as this it is:

where appropriate, to manage or contain conflicts that have adversely affected the incapacitated person’s best interests in a situation where their management requires imposing a framework that interferes with the usual legal rights of family members, so as to require authorisation by a court; and

to ensure that incapacitated people are not disadvantaged, compared to those with capacity, by their inability to make decisions about their treatment, care, entitlement to resources and contact with others.

Bearing all of this in mind, I will simply declare that it is lawful and in Mrs B’s best interests to make the general declarations concerning her care plan that are recorded in the order below.

The main risks to RB’s care plan that have required the intervention of a court are the behaviour of her children — towards her, each other, the local authority and paid carer — insofar as this conduct has adversely affected her residence at home and personal welfare.

If Mrs B had capacity, she herself would be entitled to regulate this intrusive conduct by deciding:

Who to see in her own home, how often and when;

To instruct professionals not to disclose or discuss information about her care to particular relatives or professionals, or to allow them to make complaints about her care on her behalf (i.e., to interfere);

To refuse to allow a person, including a relative, to be involved in treatment and care decisions concerning her;

To say to one or more of her children that she does not wish to have contact with them, or significantly less contact, unless they ‘mend their ways,’ cease interfering with her life and care, and cease upsetting her by their constant disputes and arguing.

In an appropriate case, an incapacitated person should have exactly the same rights, options and strategies available to them.

If Mrs B she had capacity, she could decide to say to one or more of her children, ‘I’ve had it up to here. Unless you do x or y, I don’t want you to visit for the moment and/or be involved in my care’ — just as a spouse with capacity who is at the end of their tether might say to their partner, ‘I can’t continue like this unless you agree to get some help with your alcohol, drug, mental health issues, etc.’

As in marriage, this is not a step to be taken without serious thought. However, in my view, if the situation is sufficiently clear and perilous, I can make that kind of decision for a person who lacks capacity, because it is a decision they could lawfully have come to themselves if they still had capacity.

That is a long-winded way of saying that I do not accept (without qualification) Mr Simblet’s submission that the court has no jurisdiction to make an order that PB’s contact with his mother may be suspended unless he addresses his mental health and behavioural problems. I am not making a decision for him, which forces him to do anything, but a decision as to where his mother stands. I am not deciding that it is in his best interests not to see his mother but (on her behalf) that it is in her best interests not to see him for a while unless and until he can satisfy me —i.e. her, for I stand in her shoes — that his behaviour has changed and it will be less destructive and upsetting for me.

In very broad terms indeed, I accept that the legal system in England and Wales does not ‘require a person to undergo compulsory treatment except in the very defined circumstances, and for the very defined purposes, of the Mental Health Act 1983.’ But, again, in my view the position here is the same as between two people with capacity. One can say to the other, ‘I cannot compel or require you to have treatment for your problem but if you choose not to then I chose not to see you, or to see you less frequently. That is where my interests lie.’

I do not think that the statement, ‘In any case where the Mental Health Act 1983 and the Mental Capacity Act 2005 are in conflict, the former Act is to be preferred,’ has any real bearing on this case. The 1983 Act is not in play, section 28 of the 2005 Act is not in play, and nor is Schedule 1A.

I do not accept the submission that ‘requiring PB to seek treatment for a personality disorder that he might not have is a pointless exercise’ is pertinent to my decision. It is not for me to say what treatment PB must or should receive — I am not a doctor — only that it is in his mother’s best interests to say on her behalf that he needs to seek appropriate professional help. There is ample evidence to indicate that it is very unlikely that he can modify his behaviour unless he undergoes an assessment and accepts any help it is assessed he may benefit from.

If he has a mental disorder which is untreatable, the court will need to factor that in and look at other ways of limiting the conflicts. However, until recently he has not had any treatment. Professional help may be beneficial.

I accept that there is no evidence that RB herself ever required her son to receive treatment, either as a condition of contact or for any other reason. On the other hand, ultimately I am not making a substituted decision for her. Furthermore, matters have not reached this unhappy level before, where she has been deprived of her liberty in a care home and her life in her own home put at significant risk.

Essentially the same line of reasoning leads to the conclusion that in an appropriate case the

Not to allow an incapacitated person the same right seems to me to disadvantage them, and discriminate against them, for no good reason.

I accept that PB’s Article 8 rights are a matter of great importance, as are those of his mother and his sisters.

He is a devoted son who has cared for his mother. If at all possible, he has a right to live a normal life that includes visiting his mother, and it is important to try hard to ensure that he remains in her life.

However, I am making a decision for RB. Part of the respect the law shows for the home, family and private lives of people with capacity is to recognise their right to end or limit relationships with people who may not want that. I have already found that RB has expressed a strong and clear wish to remain in her own home; that her relatively simple needs make it realistic to provide care in that setting; that to allow her children or anyone else to disrupt and destabilise her home life and care so that she loses her home would violate her right to respect for her home and private life; and that, where the perpetrator has capacity to choose how to behave, the loss or reduction of contact, painful as it would be for their mother, would be something they themselves had caused. If it comes to it, it is likely that RB will be happier living in her own home with less contact with her children than in a more institutionalised setting. She would be upset to have little or no contact with a loved child but less upset than ‘being taken into care’ through no fault of her own, because they were disrupting her care.

It is desirable to try to construct a framework that, as far as possible, addresses the risks

In my opinion, the management and enforcement options start with informal meetings and end with committal to prison.

I agree with Mr S that if PB’s conduct (or that of any of his sisters) is sufficiently problematic, the first mechanism to be used should be meeting with Mr H, who has a good relationship with PB and has often been an effective go-between and problem-solver.

Although his help in this case has been essential, one objective is to be able to exclude the Official Solicitor from the family’s lives as soon as possible. If he is no longer involved, it will still be necessary to have someone involved whose only role is to establish and advocate Mrs B’s true wishes from a neutral standpoint.

A MIND Advocate was offered to RB but this offer was declined by her. It may depend how

An advocate helps communicate the feelings and views of someone who has communication difficulties. The definition of advocacy set out in the Advocacy Charter adopted by most advocacy schemes is as follows: ‘Advocacy is taking action to help people say what they want, secure their rights, represent their interests and obtain services they need. Advocates and advocacy schemes work in partnership with the people they support and take their side. Advocacy promotes social inclusion, equality and social justice.’

Using advocates can help people who find it difficult to communicate (including those who have been assessed as lacking capacity) to:

say what they want

claim their rights

represent their interests, and

get the services they need.

One advantage of an advocate is that it would minimise the risk of local services receiving

I agree with Mr S and Mr H that mediation is desirable.

It is important not to leave untried options that may help to narrow the issues and/or reduce conflict. The parties need to be encouraged to think about ways of resolving their differences other than by writing or appealing to a judge.

There is the funding issue. However, if mediation succeeds and some consensus as to the way forward can be agreed, ultimately it could be less hurtful, abrasive and expensive than further legal action.

I acknowledge the Official Solicitor’s pessimism, which is supported by evidence, but it is important to guard against nihilism. Two experts have said it is worth trying, therefore it may be beneficial, it is unlikely to do any harm, and is even less likely to do more harm than continual litigation and family complaints.

Having experienced litigation first-hand, RB’s daughters may now view mediation as preferable. Furthermore, reducing conflict requires all of her children to seek a greater understanding of the effect of their behaviour on their mother’s welfare, not just the other party’s.

For reasons already given, the order should provide that if the local authority offers the parties a process of mediation the court will take into account the refusal of any party to engage in that process when determining the contribution made by them to any breakdown of care or contact arrangements, and the extent to which they should pay or contribute to any avoidable court applications and/or hearings that are then necessary.

For as long as the family are engaged in mediation, no further applications to the court should be made without the consent of the Official Solicitor. This would be contrary to the spirit of engaging in mediation.

A mediator helps people to come to an agreement that is acceptable to all parties. Mediation can help solve a problem at an early stage. It offers a wider range of solutions than the court can – and it may be less stressful for all parties, more cost-effective and quicker. People who come to an agreement through mediation are more likely to keep to it, because they have taken part in decision-making.

Mediators are independent. They have no personal interest in the outcome of a case. They do not make decisions or impose solutions. The mediator will decide whether the case is suitable for mediation. They will consider the likely chances of success and the need to protect the interests of the person who lacks capacity.

Any case that can be settled through negotiation is likely to benefit from mediation. It is most suitable when people are not communicating well or not understanding each other’s point of view. It can improve relationships and stop future disputes, so it is a good option when it is in the person’s interests for people to have a good relationship in the future.

In mediation, everybody needs to take part as equally as possible so that a mediator can help everyone involved to focus on the person’s best interests. It might also be appropriate to involve an advocate to help communicate the wishes of the person who lacks capacity.

PB has very helpfully decided to seek professional help although I do not know if he has rejected any treatment(s) that have been recommended.

He is guarded about the information he is willing to share with the court, and therefore the proof is in the pudding. If he manages to control his frustration and anger better than in the past, and there is a reduction in conflict, it may not be necessary for the court to know the detail. If he wants me to recognise that he is engaging well and making steady progress, or that Dr LS was mistaken in some material way, then he will need to let the court have a report. Given the family conflict, this report should be shared with the local authority and the Official Solicitor, but not copied to his sisters.

If it transpires that PB is not seeking appropriate therapeutic help then in my view, and for

The starting-point is that close relatives should be consulted and involved in care planning. In this case, much clearer expectations are required of Mrs B’s daughters in terms of their conduct, complaints and allegations. Unless a process of mediation is on-going, the care agency and local authority should keep a careful record of how many times complaints and calls are made about PB by his sisters, and any actions of theirs that generate conflict or undermine their mother’s care or welfare. If they cannot let the professionals manage the situation, and their interference becomes disruptive, it would be appropriate for the local authority to limit the extent to which they are involved in information-sharing and care planning, and to manage the time they spend communicating with paid carers.

Because the care agency provides the day-to-day input, and their withdrawal will trigger a crisis, it is important to insulate their staff as much as possible from the conflicts that have characterised this case. If at all possible, it may be preferable to require Mrs B’s children to direct all correspondence and calls to the local authority, to be filtered as necessary and taken into account at care plan reviews.

If contact is harming Mrs B then the most appropriate step is to restrict contact to a level that is not harmful to her.

In my view, the traditional enforcement mechanisms have a role to play in this case but less

If he becomes embroiled in conflict with those he is in contact with, less contact for a cooling down period would be my first preference, rather than a return to court for committal proceedings.

Contrary to PB’s recollection, I find that there have been two occasions when his mother persuaded or asked him not to visit for a period when he was in conflict with those around her.

PB asked that all ‘restrictions’ — undertakings, injunctions, penal notices — be discharged as he is ‘willing and able to adhere to the care plan.’ Therefore, there is no need for them. On the evidence, it is impossible for me to find that he has managed to adhere to his mother’s care arrangements, nor therefore that he will be able to do so unless and until the existing state of affairs has changed in some positive way.

As the Official Solicitor suggested, it is relevant to consider:

The risk of harm to RB if the injunctions are not granted (Is it necessary to make such an order?); and

The extent to which injunctions will interfere with the enjoined individual’s freedoms (Is it proportionate to make such an order?).