AM, residence and care of

A person is not to be regarded as unable to understand the information relevant to a decision if (Footnote: ²)he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means). (Footnote: ³)

The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision. (Footnote: ⁴)

The information relevant to a decision includes information about the reasonably foreseeable consequences of deciding one way or another, or failing to make the decision. (Footnote: ⁵)

Presumption of capacity

Section 1 provides that a person must be assumed to have capacity unless and until it is established (on the balance of probabilities) that he lacks capacity. Furthermore, a person is not to be treated as unable to make the decision in question:

However, whilst a person cannot be found to lack capacity merely because their proposed decision is unwise, fairly obviously an unwise (or irrational) decision may raise significant doubts and so trigger an assessment of their capacity.

Unjustified assumptions

A lack of capacity cannot be established merely by reference to a person’s age or appearance, or to a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity. (Footnote: ⁶)

Evidence in this case of an impairment or disturbance of the mind or brain

AM is diagnosed with cognitive impairment secondary to haemorrhagic stroke (right cerebellar haemorrhage on 20 June 2008). This stroke resulted in cognitive impairment, severe expressive dysphasia and moderate receptive dysphasia. There is also evidence of significant visual impairment which means that pictorial support does not aid communication. According to the Second Respondent (LBE), AM is able to give reliable ‘yes/no’ answers to basic autobiographical questions in English and Somali, but is unable to answer more complex and/or open questions in either language.

It is not disputed that AM has an impairment of, or disturbance in the functioning of, the mind or brain.

Effect of this condition on AM’s capacity to make the relevant decisions

AG does not dispute that her husband lacks capacity to make the relevant decisions. However, she does believe that his cognition and ability to communicate are more preserved than some professionals imply. This is relevant to his ability to express his wishes, beliefs, values and feelings and to the weight which I should give to what he can communicate.

Although his support plan (G/363-G/372) refers to AM’s speech as being unintelligible because of dysarthria, and to his limb movements as being purposeless, AG points out that a fuller picture of his cognition, and of his ability to communicate verbally and to make meaningful physical gestures, is gained from referring to other documents and records. Daily record sheets record that:

I accept AG’s observations, and I also note that some improvement in AM’s cognition and level of responses were identified at an MDT review in October 2017 (I/40).

§6 — THE LEGAL FRAMEWORK: BEST INTERESTS AND DOL

The framework to be applied involves considering the European Convention on Human Rights, the Mental Capacity Act 2005, the Codes of Practice to that Act and public law issues.

I shall not give a lengthy recital of the law because it was not in dispute and this is a classic best interests case involving balancing many different relevant considerations.

European Convention on Human Rights

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

The state is obliged to take measures providing effective protection of vulnerable persons, including reasonable steps to prevent a deprivation of liberty of which the authorities have or ought to have knowledge.

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.

The person concerned should have access to a court and the opportunity to be heard in person or, where necessary, through some form of representation.

Special procedural safeguards may prove to be called for in order to protect the interests of persons who, on account of their mental disabilities, are not fully capable of acting for themselves. (Footnote: ⁷)

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 AM’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 his health.

Once the court has completed its analysis of AM’s best interests under the MCA, it must satisfy itself that any infringement of his 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].

Mental Capacity Act 2005 — Statutory principles

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 he lacks capacity; a person is not be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success; a person is not to be treated as unable to make a decision merely because he makes an unwise decision; an act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests; and before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

Codes of Practice

The relevant codes of practice are the Mental Capacity Act 2005: Code of Practice (Department for Constitutional Affairs, London: TSO, 2007) and the Deprivation of liberty safeguards: Code of Practiceto supplement the main Mental Capacity Act 2005 Code of Practice (Ministry of Justice, London: TSO, 2008). The codes do not have statutory force but professionals and some carers must have regard to their provisions, and the courts must take them into account where relevant: see section 42.

Public law considerations

I accept that this court cannot direct a local authority or NHS body to provide services which they have assessed that AM does not require or which they have decided at their reasonable discretion not to provide.

Determining Best interests

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

In the case of ITW v Z [2009] EWHC 2525 (Fam), Munby J (as he then was) gave the following guidance with regard to the different considerations listed in section 4 which the decisionmaker must have in mind: (Footnote: ⁸)

The fact that the individual’s past and present wishes, feelings, beliefs and values must be considered tells us that this is not a sterile objective test of best interests. It is not a case of trying to determine what some hypothetical objective or rational person would decide in this situation when presented with these choices. Nor are we seeking to do nothing more sophisticated than impose on the individual an objective and rational analysis based on professional expertise of what they ought sensibly to do in that situation.

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. This is the principle of beneficence which asserts an obligation to help others further their important and legitimate interests, not one’s own. (Footnote: ⁹) In this important sense, the judge no less than the public authorities is AM’s servant, not his master.

That this is so is emphasised by Lady Hale in the Aintree case:¹⁰

It also emerges from various decisions of the previous President of the Court of Protection. Naturally, precisely how much weight to give to a person’s present wishes and feelings will depend on the particular context and their circumstances. These include the degree of their incapacity; the strength and consistency of their views; the possible impact on them of knowing that their wishes and feelings are not being given effect to; the extent to which their wishes and feelings are, or are not, rational, sensible, responsible and pragmatically capable of sensible implementation; and the extent to which their wishes and feelings, if given effect to, can properly be accommodated within the overall assessment of what is in their best interests. However, while the weight to be attached to the person's wishes and feelings will always be case-specific and fact-specific, their wishes and feelings will always be a significant factor to which the court must pay close regard. (Footnote: ¹⁰)

Managing risk

Risk cannot be avoided. All decisions that involve a deprivation of liberty or compulsion involve balancing competing risks, of which the risk that the individual or others may suffer physical harm is but one. For example, detention and compulsory care or treatment may risk loss of employment, family contact, self-esteem and dignity; unnecessary or unjustified deprivation of liberty; institutionalisation; and the unwanted side-effects of treatment.

The court ‘must adopt a pragmatic, common sense and robust approach to the identification, evaluation and management of perceived risk’. There must, as Peter Jackson J observed in Hillingdon LBC v Neary (Footnote: ¹¹) [2011] EWHC 413 (COP) at para 15(3), be a proper, factual basis for such concerns.

Pessimism not necessarily determinative

In Re: GC, (Footnote: ¹²) Hedley J considered whether to allow an elderly man to be discharged from hospital to the home where he had lived for many years with his nephew KS, notwithstanding that there were serious though entirely unintentional shortcomings in the care provided by KS.Hedley J commented:

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

A balance-sheet

The following passage about the need for a balance-sheet approach to best interests comes from the then President’s judgment in the case of Re S (Adult’s lack of capacity: carer and residence) [2003] FLR 1235: (Footnote: ¹³)

The drawing up of a ‘balance sheet’ in personal welfare cases, listing the actual and potential advantages and disadvantages of each alternative, (Footnote: ¹⁴) should not be a dry accountant’s exercise which omits what is personal but one that includes the ‘personal’ element of ‘personal welfare’.

Deprivation of Liberty Provisions

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

The underlying rationale of the legislative framework is that it is a protective scheme. Anyone who is deprived of their liberty — that is, who is under another person’s complete and effective control and is not free to leave — is vulnerable to abuse.

That risk is multiplied if they are unable to decide whether to remain or leave. Children and adults with mental health problems are particularly at risk and the law has usually afforded them special protection. This protection involves imposing legal duties on those with power, conferring legal rights on those in their power, and independent scrutiny of how these powers and duties are exercised. The effectiveness of such schemes depends on whether, and to what extent, they are observed.

In this arena, the deprivation of liberty scheme ensures that there is at least an annual assessment by two suitably qualified and independent professionals, who can ensure that the arrangement really is necessary to protect them from harm, is in their best interests, proportionate and so forth.

Six requirements

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

The purpose of these requirements is the same as in the case of the ‘sectioning criteria’ in the Mental Health Act 1983, i.e. to prevent people who do not meet certain conditions or requirements from being deprived of their liberty. In AM's case, it is common ground that only the best interests requirement is in issue.

The best interests requirement

The ‘best interests requirement’ is in reality four requirements masquerading as one. It is satisfied only if all of the following four conditions are satisfied:

If one or more of these conditions is not satisfied, the relevant person does not meet the best interests requirement; and, because a standard authorisation may only be given if all six requirements are satisfied, AM may not be deprived of his liberty under the MCA scheme.

§7 — AM’S SITUATION AND BEST INTERESTS

There is no solution. AM’s situation will be less than optimal in both suggested care settings in the sense that he will have to forego some of the benefits that he would have in the other setting. Neither option will provide him with security, safety, liberty, happiness, an absence of suffering and an unrestricted home life.

Participation of AM in the decision-making

So far as reasonably practicable, AM has been permitted and encouraged to participate as fully as possible in the decision-making process. He has been ably represented by an experienced specialist solicitor, Mr Whitaker, has had the assistance of the Official Solicitor, and has also benefitted from the application, encouragement and assistance of his wife and children. He has had many opportunities to express his current wishes and preferences and, as far as his circumstances permit, has done so.

Whether a recovery of capacity is likely

Following a review in October 2017, some improvement in AM’s cognition was identified in 2017. However, the evidence clearly indicates that it is unlikely that his capacity will improve sufficiently in the foreseeable future to enable him to make these decisions for himself. Therefore, a decision must be made for him now, by me, in his best interests.

AM’s wishes, feelings, beliefs and values

AM's wishes and feelings are extremely important factors to be taken into account when reaching my decision. However, account must also be taken of his limited understanding of the evidence about the risks involved in being treated and cared for at home. For example, it has not been suggested to me that he understands that the likely price of returning home is that he will be more vulnerable to a deterioration of his health, to more severe forms of illness and to an increased risk of premature death, or that he will be at increased risk of hospital admissions. Nor, on the evidence, can he understand, even in the most general terms, that the NHS treatment and care that will be available to him will be sub-optimal compared with that currently provided by the team of GPs, nurses, therapists and care staff at X Nursing Home.

There is a lack of reliable evidence about AM’s views prior to his stroke concerning the relative importance of these considerations and what weight they should be given. Family members expressed different opinions about whether he would be likely to prefer the medical advice to remain at X Nursing Home or prefer to take the risks involved in a return home.

There are some things of which I can be confident:

AM’s current treatment and care arrangements

AM’s current situation is that, since 4 March 2009, he has been a resident of a specialist nursing home for people with profound and complex disabilities who require long term 24 hour nursing care.

AM’s current and recent medical and care needs are described in various reports, including the independent nursing expert report of Ms TR (I/15 – I/19); the ‘Support plan identified at assessment/review’ compiled by ECCG on 13 December 2018 (G363-372); a MultiDisciplinary Team report signed on 20 December 2018 (I/37-I/41); a medical update report signed by Dr AJ of X Nursing Home on 6 December 2018 (I/42–I/43); and a Multi-Disciplinary Team report signed on 10 October 2019 (I/65-I/68):

It can be seen that AM has very significant disabilities, requires substantial support, and benefits from a very good package of care, treatment and family contact. (Footnote: ¹⁸)

This is highly relevant. AM’s case is not of the kind that I see all too frequently, that of an older person having to endure minimum standards of care, and little in the way of social stimulation, in a care home far away from family and home. If I give up AM’s place at X Nursing Home, I am giving up something of real benefit to him — Something that only by chance will be available to him again should home care break down.

With regard to this risk, I should make two observations. Firstly, the CCG can or will only keep his place at X Nursing Home open for 14 days if he goes home. (Footnote: ¹⁹) Secondly, for this reason, and because ECCG is unwilling to incur the costs of adapting the family home and training family carers for a trial at home, to establish if home treatment and care is viable, a trial at home is not an option available to me.

If a three-month trial at home were an option then it is likely to have been my preferred option. Without that option, if I discharge AM and matters go awry after 14 days, he stands to lose a lot: (Footnote: ²⁰) a place at a nursing home with a national reputation, within a short drive from home, which provides him with good quality care and treatment, staff who know his needs, family visits daily for 8-9 hours, and the possibility of visits to his Mosque and the family home.

His wife’s answer to this observation was, in part, that she cannot go on as she has been. If her application is refused, she is too worn out by many years of driving and caring for AM to be able to continue to visit him at X Nursing Home, or at any rate to do so regularly (see e.g., G/295-G/304). It is not the case therefore that her husband will have the benefit of her presence and care for much of the day regardless of the outcome. Her absence will not only cause him distress. It will adversely affect the quality of his care at X Nursing Home. Staff rely on her to perform oral care and other tasks, and her presence means that his behaviour is less oppositional. Nor, if he remains at X Nursing Home, is it possible (or, at any rate, likely) that he can also have the benefit of enjoying time at the family home and his local Mosque. His sitting tolerance and the journey time make visits to his local Mosque impractical, and a Disabled Facilities Grant will not be available to fund adaptations to the family home if he is not residing there.

I have given considerable weight to AG’s evidence, and I greatly admire all that she has done to support her husband. Her contribution to his care and well-being is particularly significant. Her presence makes him calmer. (Footnote: ²¹) She does sometime pick up on things that other people, including his children and care assistants, do not notice. She has a good record of appreciating when he is unwell or is not behaving normally; she will ask him questions, and he will respond either verbally or with gestures, pointing to an area of his body. She has demonstrated an understanding of knowing when to call the GP, for example in August 2018, which led to AM being prescribed antibiotics and then being admitted to hospital (see I/47–48; K/190). (Footnote: ²²) She also assists staff with communication. For example, the daily record sheet on 21 September 2017 records that AM’s ‘wife reported that AM also requests for feet to be elevated’ (K/15).

Fulfilling a caring role in the conscientious way that AG has been doing over many years is exhausting, and a 30-45 minute drive to the nursing home in urban traffic adds to the strain. I hesitate to turn her own virtue against her. However, it is because of her unwavering devotion and commitment over so many years that I find it implausible that she will cease to visit AM if the court refuses her application, or visit only occasionally. I accept that she is suffering from long-term fatigue and that her own health may well have suffered. I am her husband’s decision-maker and, if he realised the strain she is under, he would no doubt want me to give weight to her comfort. I have therefore factored into my decision the fact that caring for him at home will spare her the daily drives, be better for health and add to her happiness.

On balance of the evidence, I find that AM’s sitting tolerance has improved and that visits to his local Mosque are now likely to be possible. As to the possibility of visits home, it was not established that the £11,000 cost of adaptations to the family home cannot be funded. If an application for a Disabled Facilities Grant is refused, this still leaves open the possibility of obtaining funding under other legislative schemes, such as the Chronically Sick and Disabled Persons Act 1970. In my view, home visits ought to be a key part of any care and treatment package at X Nursing Home.

Available Home Care Package

The CCG is willing to fund a care package at home. However, given its finite resources, the following was the most that could or would be funded:

Looking at this package, it can be seen that the family have worked thoughtfully and assiduously to construct a viable alternative to X Nursing Home. Equally, ECCG and the relevant local authority have put in a lot of hard work to assist the family with their endeavour. That is particularly commendable given their limited resources and the fact that they believe that remaining at X Nursing Home is in AM’s best interests.

There is much that can be said in favour of AG’s application. AM wishes to live at home with his wife and family, and therefore my starting point is to try to enable him to live the life he wishes if it is feasible: the underlying purpose of the Act is that it is an enabling Act. He is fortunate in having a devoted wife and family. The family home can be adapted to suit his needs. The CCG have constructed a care package which, taken with the family care rota, meets his day-to-day care requirements. Furthermore, although the package is not equivalent to what is provided at, or readily-available, on-site at X Nursing Home, it is nevertheless a significant package of care. (Footnote: ²³)

I agree with much of TR’s balance sheet (I/33-I/35) but not with all of her assessment of the burdens of home care. The family carers are competent, devoted and willing to undergo training; it is inevitable that assuming a care role comes at a cost; on the evidence I believe that the pool of carers is sufficient; I do not agree without more evidence that the fact that AM has not been home since 2009 is likely to be a significant problem; the family home can be adapted and ‘made fit for purpose’ quite easily; the family carers are sufficiently experienced and committed that I find it is more likely than not that they can sustain their care roles; a suitable domiciliary care provider appears to have been identified; and I believe that regular visits to AM by MH can be managed by the court if necessary. The burden that I agree with is that, ‘AM will not have immediate access to the Primary Care Services i.e. GP, Community nurses and therapists.’ This, it seems to me, is the fundamental difficulty.

Despite the fact that AG’s application and care package has many positives, there are difficulties. There is a past history of conflict; the service provided will be reactive rather than active in many areas; and the issue of GP and medical input has still to be considered.

A past history of conflict

I am mindful that the Third Respondent, MH, says that his family life with his father will be negatively affected by a return to the family home. He says that AM’s residence at X Nursing Home ensures both that his health and care needs are well managed and that he is able to spend time with all of his family, who are all kept aware of his wellbeing.

The Court of Protection bundle for the original proceedings contains significant evidence of conflict between AG and proposed family carers, on the one hand, and professional carers and the Third Respondent on the other. In my opinion, the Third Respondent was unfairly and unjustly treated. Most of the criticism of professionals was also unfair and damaging to AM’s interests. The picture is a familiar one for a Court of Protection judge, of tension and conflict between distressed step-relations with different perspectives, and of conflict between a distressed family and professional services that spiralled completely out of control.

The picture is different now. The oral evidence of AG and the proposed family carers was measured and fair. All of them reiterated that they understand the need to work cooperatively with medical staff and professionals. They also emphasised that the Third Respondent would be welcome to visit his father at the family home. I believe that their offer is sincere, and a genuine attempt to move forward in a more collaborative way. The history of past conflict does make it inevitable that, at least initially, there would be a certain tension or awkwardness in the air during such visits, which the Third Respondent does not have to endure when he sees his father at X Nursing Home. However, I do not think that this in itself would justify denying his father the opportunity to live in his own home if his needs can be met there and the risks can be adequately managed. The family carers would have a considerable incentive to avoid MH’s visits breaking down and the matter coming back to court. Furthermore, if it ever became necessary, the court could facilitate visits by way of a visiting schedule and/or undertakings or orders concerning the behaviour of family members who are not carers, such as AG’s son GH. I would be fairly confident that the court could deal with any difficulties.

Medical and GP input

This is, I believe, the critical issue. The Official Solicitor submitted, and I agree, that the evidence establishes that the proposed care package at home comes with risks but is potentially viable save for the issue of the medical input that AM requires.

It was the Official Solicitor’s submission that the concerns about the quality of the clinical and medical care which can be provided in the community, and the consequential health risks, are so significant in the balancing exercise that they amount to the ‘magnetic factor’ in the overall determination.

Having reviewed AM’s records, Ms TR told me that there is very little day-to-day GP input at X Nursing Home when he is well. However, when he is unwell and needs medical input, he tends to need it quickly. He will then be visited daily at X Nursing Home, which (she says) is more often than is likely to be available from a GP practice at the family home.

In the original proceedings, no general practitioner was willing to provide GP services to AM should he be discharged home.

A letter from local GP Dr VT dated 25 September 2013 (G/431) states:

There is then a letter from local GP Dr ML (G/53-G/54), undated but written in 2014. Dr ML visited AM on 24 April 2014, and his letter has that extra weight. He reported:

By the time the previous proceedings concluded, it had not been possible to secure GP services for AM at home, despite the involvement of NHS England.

The carefully constructed home care package which the family and CCG have put together in the current proceedings was not a feature of the earlier proceedings. There are also other reasons to be more positive now, for example much reduced conflict. However, as will be seen, it remains the case that no local GP considers that they are able to provide AM with sufficient medical input at home.

If AM does return home, the service provided to him by whichever GP practice he is registered with would be provided in accordance with the GP’s contractual requirements.

It is important to note that the CCG ‘do not expect GPs to provide active management home visits for patients in the community’ (G/347). They provide reactive care. IR deals with this distinction at paragraphs 8 and 11 of his statement of 31 January 2019 (G/346-G/347):

Most of AM’s contact with carers is with paid care assistants and family carers and this will not change if he goes home. However, it is obviously a benefit for AM that at present there is an on-site GP service between 9am and 5pm, that out-of-hours a GP is expected to be onsite within one hour, and that X Nursing Home has a nursing presence 24 hours a day. This, I am told, has facilitated early assessment and treatment and avoided an escalation of medical deteriorations, which in turn has reduced the number of hospital attendances and/or admissions.

It is significant that it is not just local GP services that are reactive rather than active:

Most of the relevant therapies — such as physiotherapy, speech and language, and dietician input — will be reactive only once the home care package is established. There would be a delay of 2-5 working days in obtaining face-to-face assessment and input in most instances. In contrast, at X Nursing Home, a speech and language therapist and two physiotherapists are allocated to AM’s unit between 9am and 5pm on weekdays.

The response of GP practices contacted in the current proceedings

The GP practice initially contacted on AM’s behalf was that nominated by AG, namely C Rd GP Surgery. IR told me that it is open from 8am to 6.30pm from Monday to Friday. It provides a home visit service in between the morning and afternoon clinics when GP capacity allows; this would have to be requested first thing in the morning. If there is no GP capacity on the day, a GP would attend the following day. The practice nurses are not able to make home visits. Out of hours, the NHS 111 telephone service would have to be used. If a blood sample is required for diagnostic purposes this could be undertaken through the domiciliary phlebotomy service on a Thursday. There is a 2-3 week wait for domiciliary phlebotomy.

What this seems to mean is that if a GP cannot visit in the middle of the day (between the morning and afternoon surgeries) or AM needs immediate medical evaluation or attention outside this window, the gap will need to be filled by NHS 111, the local Rapid Response Service and, where necessary, an ambulance to A&E.

The local Rapid Response Service (RSS) is part of the local Home Ward service. It requires a telephone referral from the ambulance service, a GP or from members of a patient’s primary care team after discussion with the GP, e.g. district nurses. It is an urgent service and would not be an integral part of AM’s care package. It can be contacted between 8am and 10pm daily. This multi-disciplinary team is composed of consultants, doctors, advanced nurse practitioners, nurses, an occupational therapist, a physiotherapist and rehabilitation support workers. There is no defined limit on how often the service can be used. However, IR said that the frequency with which it is used could indicate that a home care package is insufficient to meet the patient’s needs.

The service provided by the Rapid Response Service is described at G/501. Following referral a member of the team will triage the patient. In practice, it is most likely to be a nurse or an ‘associate healthcare professional’ who is sent out (oral evidence of IR).

Broadly speaking, the triaged patients are then dealt with in one of three ways:

Unfortunately, C Road GP Surgery declined to register AM. The surgery stated that it is a ‘smaller’ practice and there are more suitable larger practices closer to the applicant’s home. Furthermore, ‘it would be a safeguarding issue for a patient with AM’s needs to be managed in the community’ (G/344). An email was received by IR from Dr F at C Road Surgery during the April hearing, which was admitted into evidence as ‘Exhibit 2’. In that email, Dr F set out his reasoning for strongly recommending that AM should not be registered with his surgery. His reasons included that AM requires a doctor and team with specialised skills

According to Dr F, caring for AM at home would put him ‘at massive risk of hospital admissions, re-admissions and rapid deterioration in his health due to the nature and relatively slow response of primary care to urgent issues’. He went on (J/33):

The CCG told me that under contractual arrangements it would compel C Road GP Surgery or another surgery to register AM if the court ordered that AM should return to live at home with his wife.

In oral evidence, IR stated that no patient would or should be admitted to hospital unless there was a clinical need. He disagreed with Dr F’s view that there would be a ‘massive’ risk of hospital admissions, and described that as ‘an exaggeration’. A move home, and registration with a GP surgery, would be ‘moving from a proactive to a reactive service’. The CCG considered that reactive care would be ‘adequate but sub-optimal’ compared with the care which AM receives at X Nursing Home. The CCG was concerned that community services would be unable to respond in the same rapid way as at present, which has limited AM’s need for hospital admissions.

I agree with IR with regard to Dr F’s evidence. IR’s assessment and language was measured in a way that Dr F’s was not, and was based on a careful and thoughtful balancing of the relevant factors. I find that Dr F’s stated view was exaggerated. To my mind, the use of phrases such as ‘willingly harming his health’, and the suggestion that a GP would simply have AM readmitted to hospital if he was discharged from X Nursing Home, cannot be supported. The weight I give his evidence is that he is another GP who strongly believes that AM should remain at X Nursing Home.

Because the problem of GP and medical support at home could not be resolved adequately at the hearing in April 2019, further evidence was filed about other local GP practices with whom AM might potentially be registered (G/461-G/464).

The CCG contacted B Road Surgery, the closest GP practice to AG’s home. It responded that it was ‘not willing to register’ or ‘would prefer not to register’ AM as a patient. Having reviewed the report of Dr AJ, it was their opinion that it is not possible safely to provide, in the community, the level of medical input that AM requires. Their view was expressed in measured tones.

AG then asked that EP Health Centre be approached and the CCG contacted it. The response was similarly negative. The partners had reviewed AM’s case. They felt that his needs would be ‘extremely difficult to meet in primary care’. Furthermore, it would be better if he was registered at the same practice as the rest of the family. However, as the practice could not refuse to register a patient within their catchment area, if a request was made that AM be registered with them, they ‘would have no option but to accept’.

Unfortunately, the position therefore is that no GP practice has at any stage in the two sets of proceedings been willing to provide community medical support for a home care package. I find that there is an economic factor, as well as a safety factor, in this. To my mind, Dr F’s email and Dr VT’s letter make this clear. No doubt a GP would be professional and do all that is professionally required of them under their general GMS contract. The problem is that they might not be willing to continue to do, or be in a position to do, more than is professionally required of them under the contract; and their common evidence is that that is insufficient. I understand their point that enhanced services are required.

A suggestion that the family might wish to investigate whether supplementary GP support could be available from a medical practitioner within the local Muslim community, perhaps as a religious obligation, was not practical. Although in theory it might fill some service gaps, such a GP would not have access, or sufficient access, to NHS GP notes, and there might be problems of insurance, working or liaising with NHS community nurses, and so forth.

Given this situation and the current configuration of local NHS services, what then would be the likely consequences (‘risks’) for AM of receiving home treatment and care if the medical input is provided by a local GP under a GMS contract?

Dr ML referred to the fact that AM is prone to getting frequent chest infections and silent aspirations which do not present with the normal symptoms, and that he tends to deteriorate very quickly. It requires skilled medical staff, who know him well, to identify early signs and initiate early treatment to prevent him getting very ill. Consistent with this, IR states that the additional medical risks include increased vulnerability to a deterioration in his health and increased risk of hospital admissions (‘almost inevitable’), of more severe illness and of premature death (G/347-G/350):

Some of these risks may not materialise. However, they are sufficiently serious that they can properly be categorised as risks connected with AM’s safety, because they include increased ‘vulnerability’ to a deterioration in AM’s health and increased risk of hospital admissions (‘almost inevitable’), of more severe illness and of premature death.

Conclusions

A trial is not needed if one can be reasonably sure of the outcome. It is sensible to test an alternative that may or may not be viable before ‘burning one’s bridges’. That is not possible here and I must choose.

On balance, I do not believe that currently it is in AM’s best interests to be discharged home under the proposed package of treatment and care.

There is much to be said in favour of AG’s application. Home has very significant benefits in terms of the warmth and personal care his family provide, cultural familiarity and customs, and visits from friends and neighbours. The valuable contribution which his family now make to his care would be enhanced because a family member would be present to interpret and attend to his needs all the time. His home can be adapted, and the CCG has constructed a care package which, taken with the family care rota, meets his day-to-day care requirements. Although it is not equivalent to what is provided at, or readily-available, onsite at X Nursing Home, it is nevertheless a significant package of care.

I agree with the Official Solicitor that the proposed care package at home comes with risks but is potentially viable save for the issue of the medical input that AM requires.

At present most of AM’s contact with carers is with paid care assistants and family carers, rather than with GPs and nurses, and this will not change if he goes home. However, it is a considerable benefit for him that at present there is an on-site GP service between 9am and 5pm, that out-of-hours a GP is expected to be on-site within one hour, and that X Nursing Home has qualified nurses on-site 24 hours a day. This has facilitated early assessment and treatment and avoided an escalation of medical deteriorations, which in turn has reduced the number of hospital attendances and/or admissions. His ward also has a speech and language therapist and two physiotherapists allocated to it on weekdays.

The services provided by AM’s local NHS are mainly reactive rather than active.

The CCG has declined to provide AM with enhanced GP services and therefore his medical input will be provided by a GP under a General Medical Services contract.

Under a GMS contract, that GP will not be required to provide more than reactive care. For example, the expectation is that the GP will visit between morning and afternoon surgeries if capacity allows.

The likely consequences for AM of this reduced medical input indicate the appropriate weight which I should attach to this risk: some delays in being assessed and treated (i.e. from time to time, a prolongation of suffering when ill), an increase in the number of hospital admissions and an increased risk of premature death (compared with how long he would be likely to live at X Nursing Home).

AG has not been able to find a GP who is willing to try to support her husband at home, nor has the court received evidence from a medical practitioner in support of home treatment. As a judge, I am bound to accept the evidential position.

While I accept that most often AG will quickly identify changes in her husband’s presentation, and request professional help, it does not follow that the NHS will be able to respond quickly, or be able to offer an alternative to taking him to hospital.

No local GP practice has wished to register AM. The strong resistance of local GPs to assuming responsibility and a caring role for AM has weighed heavily with me, and been decisive.

Someone with AM’s complicated needs requires maximum effort and commitment from all involved in providing home care for it to have a chance of success. I cannot rely on the GP who is forced to register AM being able or willing to do more than is required under their general contract.

It is a considerable negative that AM would be the responsibility of a practice that does not wish to receive him as a patient, one that believes that his needs are greater than it can fulfil under its contractual obligations.

AM’s medical condition is complicated, he can deteriorate quickly and some signs and symptoms may be difficult to recognise. Given that he will not always have prompt access to medical treatment and therapy from his GP at home, necessarily there is an increased risk of his health further deteriorating before his condition is diagnosed and treated. The fact that a delayed medical response may mean that he is more ill than he would be at X Nursing Home before treatment is commenced brings with it an increase of suffering and an increased risk of hospital admissions.

The Rapid Response Service cannot sufficiently plug the gap in terms of the medical input that will be provided by a GP practice operating under a GMS contract. The RRS is an urgent service and it is not a 24-hour service. It would not be an integral part of his care package. Most importantly, given AM’s history and the fact that my concern is with those occasions when he is at risk of becoming significantly unwell, the guideline response will most often be that he should be taken to A&E. Given the unanimous and often frank views of the GPs and other medical practitioners about the inadvisability of home care, it is likely that on reaching hospital there would then be a considerable drag back in the direction of hospital admission and then discharge to another nursing home. Local NHS services are not configured to care for a person with AM’s needs at home.

As matters presently stand, on the balance of probabilities it would be self-defeating for me to give practical expression to AM’s wishes by authorising his return home. Without committed GP input at home, it is very likely that home treatment would be unsuccessful. By committed support, I mean the type of support that in a different field a legal aid practitioner so often gives to their client, which is willingly given for meagre financial gain and over and above what is legally or contractually required.

It follows that, on the balance of the evidence, I believe that granting AG’s application carries a significant risk of her husband losing his place and current quality of life at X Nursing Home without there being a corresponding ‘risk of gain’ which justifies this risk of harm. The benefits which he has at X Nursing Home are considerable. He is medically stable, receives good quality care and treatment, is cared for by staff who know him, enjoys excellent contact with his wife and family, and most often appears content. There is also the possibility of visits outdoors, including to his local Mosque and, depending on funding, to the family home.

It is a very sad situation and I am sure that everyone involved in the case regrets the fact that it has not been possible to find a way of reuniting this couple.

Deprivation of liberty provisions

As regards the best interests requirement, AM is being detained at X Nursing Home for the purpose of being given care or treatment in circumstances which amount to a deprivation of his liberty. This is common ground.

For the reasons given, I have found that it is in his best interests to continue to reside at X Nursing Home, and to be cared for there in accordance with the current treatment and care plan, notwithstanding that the arrangements involve a deprivation of liberty.

This is necessary to prevent harm to him. If I permit him to go home in the current circumstances, he will be at significant increased risk of suffering a deterioration in his health, and an increased risk of hospital admissions (‘almost inevitable’), of more severe illness and of premature death.

Furthermore, for the reasons given, the current arrangements for his treatment and care at X Nursing Home are a proportionate response to the likelihood of him suffering harm, and the seriousness of that harm (if he were not so detained).

Whether the relevant purpose can be achieved in a less restrictive way

In reaching my view, I have had regard to section 1 and the need for me to consider whether AM can receive treatment and care in a less restrictive way at home. For the reasons stated, I have decided that this is not the case.

Compliance with the European Convention on Human Rights

In my opinion, the interference with AM’s home and private life is prescribed by law (the Mental Capacity Act 2005), proportionate (to the identified risks concerning his health and safety) and for a permitted purpose (his health and safety).

Other matters

It is, I believe, very important to AM’s happiness that he should have the opportunity to visit his local Mosque and have other regular opportunities for outings. I would therefore ask the parties to agree suitable wording for a condition to this effect.

It is also very important that he has the benefit of visits home. It is worrying that he has not been home for so many years. The cost of adapting the family home to facilitate this is not large in proportion to the fundamental importance of enabling him to enjoy family life at home from time to time.

If funding cannot be secured, I would ask his solicitor and his wife’s solicitor to ascertain whether in the past he was able to visit his home in its present unadapted state, and whether that is feasible now.

I am sure that it will give AM pleasure to be reintroduced to his home, Mosque and local community, and it could open up further possibilities for him.

Future applications

As someone who is deprived of his liberty, AM is entitled to make further applications periodically. How much time the court will allocate to each application will depend partly on whether his circumstances have materially changed. Material changes might include significant changes to local GP and community medical services for people in his position (IR said that the CCG were looking to expand the Rapid Response Service); identifying a GP who is actually willing to try to support treatment and care at home; eligibility for enhanced GP services; the fact that his house has been adapted combined with a willingness to keep his place at X Nursing Home open for longer than two weeks; new medical evidence in support of treatment at home; new medical evidence setting out ways in which he could be successfully treated at home; improvements in his cognitive functioning and/or communication abilities, and/or the devising of new communication strategies by a Speech and Language Therapist, which enable him to say more about his wishes and the risks of home care; more reliable evidence about his past wishes and feelings, when he had capacity.

District Judge Anselm Eldergill