London Borough of Hackney v SJF & Anor

The issues

SJF is a 56 year old woman with a complicated matrix of physical and mental health issues. Apart from frequent hospital admissions, she is presently living in a residential placement. She wants to go home to live in her rented flat with her son. The Court is asked to determine:

The capacity of SJF to manage her property and affairs has not been in issue in these proceedings. All parties agree that she has such capacity.

Matters considered:

Most of the documents were collated into a hearing bundle consisting of two lever arch files. Some were added during the course of the hearing. I have read all of them, including:

There were five further statements filed (by Landa George dated 11^th December, by Adele Scott dated 11^th December 2018, by Amelia Walker dated 17^th December 2018, by Tom Lewenstein dated 13^th December 2018 and by JJF dated 14^th December 2018.) The parties agreed on the final

I heard oral evidence from Dr. Rippon, Landa George, and Aleister Griffin. SJF and JJF both addressed the Court, as they preferred, from their chairs in the second row of the court room, with their Counsel asking questions to help them say what they wanted. Neither was sworn or subject to cross-examination by any other party.

Factual Background

SJF is not in robust health. She has a long-standing diagnosis of schizophrenia but it is common ground that her symptoms are substantially controlled by depot medication. More pertinent to these proceedings, she has mild learning difficulties. She has poorly controlled diabetes, which has led to impaired vision and chronic kidney disease, for which she receives dialysis three days a week. She is described as ‘morbidly obese’ and ‘blind’, and has limited mobility. At the outset of the hearing she required two sticks to mobilise. Since the commencement of this hearing, SJF has fallen on more than one occasion and has had three admissions to hospital (where she remains presently.) Her mobility is now further reduced to ‘a few steps’ and it is not clear whether or how much improvement on that may be regained.

For about 30 years before these proceedings started, SJF was living in a flat at 3TH in Hackney, which she rented initially from the Local Authority and latterly from Sanctuary Housing. The flat has three bedrooms. It is on the first floor but there is no lift. This is the flat to which SJF wishes to return.

SJF has one son, JJF, who is the Second Respondent in these proceedings. She is clearly devoted to him. He has difficulties of his own. He attended a Special Needs school and his ability to read and write is limited. He is represented in these proceedings, and considerable care has been taken by his representatives and the court to ensure that the matter has proceeded in a way which has not overwhelmed his ability to give instructions. In particular, most of the second morning of the hearing was taken up with clarifying whether or not JJF wished to part company with his representatives. Ultimately he decided to retain their services. I commend Ms. Hearnden and Mr. Lowenstein for the care they have taken to ensure that JJF’s case is seen by him to have been fully presented to the Court.

The flat at 3TH is JJF’s home too, and has been since he was about 5 years old. However he has no independent right of occupation of the flat. If SJF is permanently placed elsewhere and her tenancy terminated, JJF is likely to be dependent on temporary housing provision.

SJF has other family members who live in the Hackney area, including PM and JM. PM is SJF’s brother. He was informed of the proceedings and attended on one day of the hearing but otherwise has taken no active part. JM is a cousin. Initially she was joined as party to the proceedings, speaking ‘for all the family.’ Separately she initiated judicial review proceedings. Permission to bring those review proceedings was however refused [D71] and subsequently JM asked to be discharged from these proceedings. Whilst she was involved in proceedings, JM visited SJF fairly frequently. Latterly there has been no contact, apparently because of the difficulties of distance.

By the summer of 2016, SJF was receiving a package of care consisting of four visits a day, each of approximately 45 minutes to one hour duration. JJF provided support at other times but he was finding it difficult to cope. An incident occurred which prompted SJF’s GP (Dr. Carter) to raise a safeguarding alert. JJF’s conduct towards Dr Carter subsequently meant that she could no longer continue as SJF’s GP. JJF pleaded guilty to an assault on his mother. As a result, and because he was on licence for other offences, on 8^th June 2016 JJF was recalled to prison.

Whilst her son was detained SJF continued to live in the flat at 3TH, and the care package was supplemented by the introduction of a waking night carer from 10pm until 8am – a total of 100 care hours per week [G68].

When JJF’s release from prison looked imminent, the Local Authority began these proceedings.

Proceedings to date:

By COP1 application dated 16^th December 2016 [D11], London Borough of Hackney sought urgent interim orders to move SJF to live at HV Care Home, for her contact with her son to be supervised, and for authority to terminate her tenancy. A standard initial directions order was made on 19^th December 2016 [D18]. Meanwhile London Borough of Hackney also made a without-notice application out of hours. On 21^st December 2016 Francis J made an order providing that SJF be moved to HV Care Home before 30^th December 2016 (when her son was expected to be released from prison) and for her contact with her son to be supervised.

Attempts to move SJH to HV Care Home on 23^rd December 2016 were not supported by her wider family and the police did not attend as planned so the attempt was aborted with an agreement to try again after Christmas. On 28^th December, SJF’s transport from a hospital appointment was diverted to take her directly to HV Care Home. Carers subsequently went to collect P’s clothes and medication but family members denied them access to P’s flat. On 31^st December 2016, JJF was released from prison and returned to 3TH.

On 24^th January 2016 [D28], Francis J transferred the matter back to the Court of Protection central registry, where directions were given [D30] for a Case Management Conference on 3^rd March 2017. At that hearing SJF’s niece, JM, informed the court that she wanted to be party to these proceedings and that Judicial Review proceedings had been lodged to challenge the process by which SJF had been moved. She was joined as party; the proceedings were reconstituted as a s21A challenge to the SA granted on 10^th January; provision was made for the joint instruction of a consultant psychiatrist; and a further hearing was listed on 17^th May 2018.

Shortly before the hearing SJF was admitted to hospital with very high blood sugar levels. At the hearing on 17^th May 2017 [D49] the Local Authority’s position was that, because of the need to administer insulin injections three times a day, it would not be in SJF’s best interests to live in supported or residential placement and nursing placement would be required. Further directions were given, with provision for a final hearing on 16^th October 2017.

The difficulties of administering three insulin injections a day lead to further interim hearings to establish which health authority bore statutory healthcare responsibility. Not without some persistence, it was finally established that the relevant body was (and is) NELFT.

At a hearing on 12^th September 2017 [D65] the expert evidence was that SJF may regain capacity in certain relevant domains if some further educative work was done with her. It was agreed that Emilia Abang would undertake that work and visit alternative placements with SJF so that she may have a more concrete understanding of the options. Both JM and her daughter offered to undergo carers’ assessments. To allow time for all this to be done, the final hearing was relisted on 11^th December 2017.

Shortly after that hearing SJF was again admitted to hospital, this time with an infected leg ulcer [I110]

By the time of the December 2017 hearing, SJF’s visits to various placements under consideration had not been completed. The matter was adjourned with further directions, including for the discharge of JM as party and the joinder of JJF. The final hearing was subsequently rescheduled to the first available date after 28^th August 2018.

In the meantime, there was a series of applications and orders culminating in a further interim hearing on 5^th April 2018, to address issues concerning the Standard Authorisation. At a hearing on 5^th April 2018 the Standard Authorisation then in place was extended to 11pm on 30^th August 2018, so as to cover the remaining period until conclusion of the final hearing.

Unfortunately the August hearing had to be vacated because of judicial non-availability. SJF’s representatives informed the Court that they had been informed that a fresh Standard Authorisation had been granted. In fact, this was incorrect because the assessing doctor had come to the conclusion that SJF had capacity to decide whether to live in the care home. On 21^st October 2018 the Applicant made a COP9 application, asking the Court to authorise the deprivation of liberty. That application was only referred for judicial consideration on 16^th November, when I made an order providing for it to be considered at this hearing.

By the end of the third day of this hearing, it was apparent that gaps in the information available needed to be addressed before final submissions could be made. Directions were given for Dr Rippon to answer some further questions, for a statement from Aleister Griffin to address JJF’s housing position, and for the Local Authority to set out a plan of how SJF’s needs could be addressed on a trial return to 3TH.

Those documents were all filed but in the meantime SJF had again been admitted to hospital, this time suffering sepsis in a leg ulcer. She was discharged to HV Care Home but was “too weak” to attend the fourth day of the hearing on 4^th December. On behalf of JJF, Ms. Hearnden asked that the hearing be adjourned so that SJF could attend when recovered. Both the other parties opposed that application, with Ms. Burnham pointing out on behalf of SJF that she had wanted the matter concluded as soon as possible. The application to adjourn was refused and the parties made closing submissions on 4^th December. After some discussion, I indicated that a written decision would be given, within an anticipated timescale of one week.

Unfortunately, the following day the Local Authority informed the Court that there had been further developments after the conclusion of the hearing, about which it wished to make representations. I gave directions on paper to provide for the Court to consider any objections to this; or, in the absence of objections, for all parties to file such representations as they wished to make.

The further information placed before the Court was of two types – firstly narrative evidence (which is now agreed to be excluded from my consideration) and secondly information that SJF’s health had significantly deteriorated. She had fallen from her chair and been unable to get to her room. An ambulance had been called and she was admitted to hospital. By letter, SJF’s representatives asked for further directions to provide for filing of updating medical evidence as to SJF’s current state of health and likely prognosis before the Court determined the matter. On 17^th December I made that order, providing for further consideration on the papers.

On 27^th December I made an order which recited what seemed to be the current position:

“a.

SJF is presently an in-patient in hospital;

b.

SJF’s mobility is presently reduced such that she ‘cannot manage the stairs’ to a first floor room ‘Despite support from two staff’ and the medical expectation is that her mobility is limited to ‘taking a few steps to be able to stand and transferring between bed/chair/commode;”

c.

It would appear that SJF’s needs (which include leaving her home to attend kidney dialysis

3 days a week) cannot any longer be met at 3TH, which is on the first floor; d.….”

The order required the Local Authority Applicant to provide to all parties no later than 4pm the following day outstanding information about how quickly a care package at the Official Solicitor’s preferred placement could be implemented, and listed the matter for attended hearing on 8^th January.

SJF’s representatives subsequently made a COP9 application to vacate that hearing, which was supported by the other parties. The order made on 8^th January 2019 in response included recitals setting out the information now before the Court, namely that:

“a.

following SJF’s recent stay in hospital and discharge back to [HV] it has been reported that her mobility has been seriously affected;

b.

that SJF’s mobility is so compromised at the moment that [HV] feel unable to attempt to support her to attend the hearing listed for 8 January;

c.

that SJF is reported to be no longer able to sit up in a chair or to access the toilet and SJF being assisted to use a commode instead;

d.

that SJF is spending her time in bed, and only sitting up for meals;

e.

that SJF is still attending dialysis three times a week, but is assisted up and down the stairs on a stretcher;

f.

….

g.

that it is the Official Solicitor’s view that the court will require clear and reliable indications as to the future clinical picture before it makes its decision on a move.”

The hearing on 8^th January was vacated, with directions for the filing of an updated support/care plan, a statement setting out details of SJF’s current health condition and prognosis, and responses. The matter was relisted on 29^th January.

On 24^th January JJF made a COP9 application to vacate the hearing on 29^th. Both of the other parties opposed the application, which was refused on the papers on 28^th January. At the hearing on 29^th January Ms. Hearnden was permitted to make the application for adjournment again. After hearing submissions from each party, the application was refused for reasons given orally at the time.

At the conclusion of the hearing on 29^th January I indicated the Court’s decision in simple terms – that SJF lacked capacity in relevant terms, and it is in her best interests that she lives at L Flat – with a written judgment to follow. I acceded to the request of SJF’s representatives that they be allowed further time to consider their position in respect of termination of her tenancy.

The available options

There have been four options for SJF’s residence and care before the Court. The details of each have shifted somewhat over the course of the hearing but I understand the options to be as follows:

The Applicant Local Authority contends that SJF lacks capacity in all relevant domains. It has throughout the hearing vigorously opposed a return to 3TH, even on a trial basis. Its preferred arrangement has consistently been Option 2 – SZ Supported Living placement. It’s ‘second best’ arrangement would be for SJF to remain at HV care Home – Option 3.

SJF herself considers that she can make her own decision about where she lives and what care/treatment she receives, and she has been consistently clear that she wishes to return to live with her son at 3TH. When it was suggested that she was ‘settled’ at HV, she loudly interjected to refute that idea. There is no indication before me that she has changed her mind since the outset of the hearing.

SJF’s Litigation Friend takes a different view. The Official Solicitor accepts the expert evidence that SJF lacks capacity in relevant domains. At the outset of the hearing, the position statement filed on behalf of the Litigation Friend supported Option 4, but this seemed to be on the assumption that SJF would have exclusive occupancy of the L flat. By the end of the third day of the hearing, the Litigation Friend was minded “not to stand in the way of” a trial of Option 1, and that remained the position until after the 4^th December hearing. However, by 13^th December [J358] the Litigation Friend’s position was that the deterioration in SJF’s health and mobility now meant that a trial home would not be in her best interests, and Option 4 was preferred.

JJF contends that his mother has capacity to make for herself decisions about where she lives, how she is cared for and the treatment she receives. He supports her wish to return to 3TH, and furthermore that is what he wishes as well. Ms. Hearnden’s submissions on the final day of the hearing were initially that JJF did not offer a preference as between the Local Authority’s preference (Option 2) and the Official Solicitor’s (Option 4), regarding them both as “equally problematic.” However, having heard the Official Solicitor’s closing submissions, when offered again an opportunity to express a preference as between Options 2 and 4, he indicated a preference for Option 4, although “ideally living there by herself.”

The Evidence

The evidence before the Court is extensive. SJF’s unstable health and changing treatment regimes mean that some factors which appeared to be of great significance in the earlier part of the hearing carry less significance now but throughout there have broadly been two themes: firstly, SJF’s health needs and secondly, the extent to which JJF’s behaviour impacts on the ability to meet those needs.

The Local Authority’s evidence is that:

For SJF, her legal representatives have filed 8 attendance notes:

When she addressed the Court directly, SJF said “my mind is alright…I do understand risks…I do want to live with my son.” She said that she had never seen JJF be rude to anyone except the doctor: “he was shouting but not violent to the doctor.” She said she wanted to live in her own flat or a ground floor flat in hackney. She didn’t like the L Flat “because it’s uncomfortable” but when asked to choose between SZ, HV and the L Flat, she said “I’d choose [L Flat.]” That was immediately followed by her asking “Why don’t I get a flat with [JJF]? …I’m used to it. He’s my child. We’d be better off together.”

JJF remains hopeful that his mother’s health will improve again:

In respect of capacity, the ‘expert’ evidence before the Court comes from the process for granting Standard Authorisations of deprivation of liberty in a care home, from the joint instruction of an independent expert within these proceedings, and from steps taken in the light of the independent expert’s recommendations.

Within the Standard Authorisation process there have been differing conclusions reached:

The jointly instructed independent expert is Dr. Rippon, a consultant developmental psychiatrist with particular experience in the assessment and treatment of individuals with learning difficulties and developmental disorders. She has filed five written reports and gave oral evidence. She interviewed SJF in person on 6^th April 2017 and 19^th May 2018; and by telephone on 28^th April 2017. She answered supplementary questions to address issues which arose in the course of the hearing.

Dr Rippon is clear in her conclusion (accepted by all parties) that there is no evidence of delusional beliefs impacting on SJF’s capacity but that SJF’s learning disability meets the diagnosic part of the Mental Capacity Act test [I98p]. As to the functional test, Dr. Rippon concludes that SJF lacks capacity in the following domains:

In relation to each of these domains of capacity, Dr Rippon’s opinion is that SJF’s difficulties “are secondary to her underlying learning disability and the impact which this has on her ability to understand particularly complex and abstract pieces of information and her ability to weigh up the positives and negatives of a particular course.”

Dr Rippon was asked to consider the impact of SJF’s relationship with her son:

Dr. Rippon was asked in oral evidence to consider what the effect on SJF might be of a decision not to return to 3TH. Her view was that “it would depend on what would happen to her son. If she was assured that he’d be looked after, she could be supported to live elsewhere. If she had concerns about him, there would potentially be negative effect on her mental state, her mood, potentially her psychotic disorder, increased anxiety could lead to positive symptoms. There could be a deterioration of her psychotic condition…. She’d find it disturbing. It’s impossible to predict if she’d develop mood disorder or psychotic relapse.”

The further work which Dr Rippon envisaged may help SJF to achieve capacity to make the decisions under consideration was undertaken by Emilia Abang, a Learning Disabilities nurse. Ms. Abang met SJF on 27^th September 2017 and 25^th October 2017. Her written report noted that:

The Law

I remind myself of the fundamental principles of the Mental Capacity Act 2005, in particular that:

I further remind myself that:

The test for determining whether a person is unable to make a decision is set out in section 3 of the Mental Capacity Act 2005:

“S3(1): a person is unable to make a decision for himself if he is unable —

(a)

To understand the information relevant to the decision,

(b)

To retain that information,

(c ) To use or weigh that information as part of the process of making the decision, or

(d)

To communicate his decision (whether by talking, using sign language or any other means).

S3(2): A person is not to be regarded as unable to understand the information relevant to a decision if 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).

S3(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.

S3(4): The information relevant to a decision includes information about the reasonably foreseeable consequences of (a) Deciding one way or another, or (b) Failing to make the decision.

In respect of a decision about where to live, I have been referred to the decision of Theis J in LBX

To what level must such information be understood? In general terms, I have regard to the observations of Macur J (as she then was) in LBL v. RYJ [2010] EWHC 2664 (Fam) at paragraph 24 that

As I have noted on other occasion, in the complicated business of being human, there may be a number of factors operating on one’s decision-making processes at any particular time. The Mental Capacity Act is so framed that, unless the Court is satisfied on the balance of probabilities that impairment/disturbance of mind or brain itself causes an inability to perform the thinking processes set out in section 3, the statutory test for incapacity is not made out:

“...for the Court to have jurisdiction to make a best interests determination, the statute requires there to be a clear causative nexus between mental impairment and any lack of capacity that may be found to exist (s2(1)). "

"The core determinative provision within the statutory scheme is MCA 2005, The remaining provisions of s2 and s3, including the specific elements within the decision making process set out in s3(1), are statutory descriptions and explanations which support the core provision in s2(1)… Section 2(1) is the single test, albeit that it falls to be interpreted by applying the more detailed description given around it in ss 2 and 3."

Per McFarlane LJ in PC & NC v. City of York Council [2013] EWCA Civ 478 at paragraphs 52 and 56 to 58.

To determine whether, at the date on which the court is considering the matter, the person has or lacks capacity to make the decision in issue, the Court must consider all the relevant evidence, including but not limited to evidence from an independent expert:

Where lack of capacity is established, the other two principles of the Act are engaged:

Section 4 sets out a now familiar list of factors which must be considered in the determination of a person ‘best interests’, including:

Ms. Hearnden contends that, even if it is concluded that SJF lacks relevant capacity, her clearly expressed wishes and feelings should be given considerable weight; and has set out in her position statement a lengthy extract from the decision of HHJ Marshall QC in S and S (Protected Persons) [2010] 1WLR 1082, paragraphs 51 to 58 inclusive. It is an extract which well merits consideration in full but for present purposes it is sufficient for me to set out three parts of it:

“52….. The statute now embodies the recognition that it is the basic right of any adult to be free to take and implement decisions affecting his own life and living, and that a person who lacks mental capacity should not be deprived of that right except in so far as is absolutely necessary in his best interests.

…

55.

….the views and wishes of P in regard to decisions made on his behalf are to carry great weight. What, after all, is the point of taking great trouble to ascertain or deduce P’s views, and to encourage P to be involved in the decision-making process, unless the objective is to try to achieve the outcome which P wants or prefers, even if he does not have the capacity to achieve it for himself?

….

57.

….in my judgment, where P can and does express a wish or view which is not irrational (in the sense of being a wish which a person with full capacity might reasonably have), is not impracticable as far as physical implementation is concerned, and is not irresponsible having regard to the extent of P’s resources….then that situation carries great weight, and effectively gives rise to a presumption in favour of implementing those wishes, unless there is some potential sufficiently detrimental effect for P of dong so which outweighs this.”

Discussion

On the question of incapacity, it is common ground that the diagnostic limb of the test is met but the only operative diagnosis is mild learning disability. Ms. Hearnden submits that this is not sufficient for the Court to be satisfied that SJF lacks relevant capacity. Instead, she says, this is a paradigm example of a case where professionals are “harshly judging what they see as an unwise decision as being one which betrays a lack of capacity.” Family dynamics are variable and personal to the individuals involved – some families are simply “more shouty” than others. It is, she says, for SJF to say whether she finds her son’s behaviours intolerable or to be overlooked in large part as a product of his own difficulties. Rather than being unable to understand, use or weigh information about risk to her health if she lives with him, SJF’s clearly stated wishes simply give greater weigh to her family life and her wish to be with her son, in her own home of many years. Ms. Hearnden suggests that this interpretation is borne out by the differing conclusions of professionals within the Standard Authorisation process, by Dr Rippon’s initial position in respect of the tenancy, and by other domains in which SJF is treated as having capacity. She suggests that Dr. Rippon overinflates “what might happen” and attaches undue weight to that risk, to the detriment of other considerations.

Ms. Hearnden’s submissions are well-made but, taking all the circumstances of this matter into account, I am not persuaded by them. I am satisfied that Dr. Rippon has carefully considered the complexities of SJF’s health conditions and her relationship with her son. I accept her conclusion that it is SJF’s underlying learning disability which directly impacts on her decision-making capacity and results in her being unable to understand, use or weigh relevant information about her treatment needs and the risks to her ability to have those needs met if she returns to live with her son at 3TH.

I am satisfied that Dr. Rippon has considered practicable steps to help SJF to make a capacitous decision, and that those steps have been taken. Having taken the recommended steps as far as practicable, I note that Ms. Abang reached the same conclusion as Dr. Rippon as to SJF’s ability to make the relevant decisions.

In so far as Dr. Rippon’s conclusions differ from those of Dr. Hanif and Dr. Dinakaran, I note that their reports were made in a more limited context, and have not been subject to testing in oral evidence. Even with those limitations, I note that Dr. Dinakaran has come to differing conclusions at different times, and Dr. Hanif’s conclusion was not shared by the second opinion doctor at the time. Overall, I prefer the evidence of Dr. Rippon.

I am satisfied on the basis of Dr. Rippon’s evidence that SJF lacks capacity to make decisions about where she lives, how she is cared for, the contact she has with others (notably her son) and whether to terminate and enter into tenancy agreements. It follows that the Court jurisdiction to make those decisions on her behalf and in her best interests is engaged.

Although SJF is presently receiving in-patient care in hospital, and notwithstanding the Local Authority’s position earlier in these proceedings, it is presently no party’s case that SJ requires 24 hour or nursing care upon discharge from hospital. If the hospital clinicians take a different view, this matter will have to come back to court again. I have taken the view that a decision between the currently available options needs to be taken now, notwithstanding some uncertainty in the medical picture, because of the reality that at least two of these options (2 and 4) are likely to be lost within days if no decision is made today. It is imperative that SJF has the most appropriate placement to be discharged to, if and when she is well enough.

In my judgment, the balancing exercise in respect of each of the options before the Court can be summarised as follows:

In my judgment, the magnetic factor in this matter is SJF’s need for healthcare by professionals. She is once again taking Novorapid injections, administered twice a day by care home staff; and Lantos injections, administered each morning by district nurses. Additionally her ulcers require frequent dressing and she attend dialysis three times a week. There is no realistic prospect that these healthcare needs could be met adequately or at all if she lives in first floor accommodation or with her son. The effect of failure to meet these needs will clearly be, at best, further and rapid deterioration in her health, and increased hospitalisation.

In the early stages of the hearing I expressed some concern at the Local Authority’s account of the position of healthcare professionals in respect of delivering healthcare to SJF in her own home at 3TH. It is axiomatic that healthcare district nurses and GPs should be able to carry out their important community work in safety and without fear. However, it was not apparent to me that the reported decision to refuse to attend 3TH because of risks posed by JJF was reached on the basis of full information. There appeared to be an element of “institutional echo” of JJF’s failings, possibly without proper consideration of countervailing positive factors such as his track record

Ms. Hearnden submits that JJF’s admissions of shouting and using aggressive language could be viewed by professionals through a sympathetic lens, and the Local Authority could revisit ways in which healthcare providers may be supported to take a different approach. I have considerable sympathy with that submission but the Local Authority has now filed further documentary confirmation of the healthcare professionals’ position, and there is no indication that such position may change. JJF’s suggestion that he leave the property whilst healthcare is provided is considered impracticable and unsustainable. I must therefore consider the options on the basis that necessary healthcare services could not be delivered to SJF with Option 1.

SJF’s need for kidney dialysis requires her to leave her home and attend hospital three days a week. Those days are long and tiring for her. The process of getting there and back is an important aspect of her ability to cope with the treatment; and level entry to her home is an important aspect of the process of getting to and from the treatment. I agree with the Official Solicitor that it is not acceptable or sustainable on anything more than a temporary basis for SJF to be able to leave her home only with the assistance of 4 ambulance staff. JJF’s expectation that he will be able to help his mum with the stairs at 3TH as he did before is sadly no longer realistic. In my judgment Option 1 and Option 3, SJF’s long-term home and her current placement, are therefore both now unsuitable for her needs.

This conclusion of course goes against SJF’s wishes. Unfortunately, it is in my judgment now impracticable to give effect to those wishes, even on a trial basis. The imperative towards implementing SJF’s clear preference is outweighed by the equally clear potential for detrimental effect to her health. Were she to return to 3TH without services from healthcare professionals at home, and with extremely restricted ability to leave that property, it seems to me inevitable that care arrangements would break down very quickly and, at best, SJF would be back in hospital again.

The only remaining options are therefore SZ or L Flat. Neither of them is ideal. As between them, the comparison is that at SZ would have her own room within a shared house, some 15 or 9.4 miles away from dialysis; whereas at L Flat she would have her own flat (at least until another resident is identified) and be only 4 or 2.9 miles away from dialysis. On the face of it, contact would be less restricted at SZ but in reality, it is likely to be more limited simply because JJF feels unable to travel there. The deciding factor between them however is that both SJF and JJF have expressed a preference for the L Flat.

I am satisfied that the arrangements proposed for contact between SJF and JJF if she is living at L Flat are appropriate and in the best interests of SJF for an initial ‘settling in’ period of 6 weeks, after which the Local Authority intends to review them. Much will depend on how JJF conducts himself in those six weeks but, just as he will need to remember his responsibilities to his mother and those who provide her with care, professionals may be expected to allow some appreciation of how difficult JJF is likely to find adapting to the new situation. I will give any party permission to bring the matter back to court if necessary for further consideration of contact arrangements at the six week review point.

The evidence is that a care package at L Flat can be implemented between 7 – 10 days of the decision being made. JJF has raised concerns about how best to deal with SJF’s belongings in the event of a move. I encourage all parties to consider the practical arrangements in this regard cooperatively.

In respect of SJF’s tenancy at 3TH, parties shall file such written representations as they wish to make by 4pm on 15^th February. I will consider them on the papers in the first instance.

Finally, I invite the professional parties to give further consideration to steps which may be taken to improve the co-ordination of SJF’s healthcare. When asked (in the context of ‘tea and biscuits’ at kidney dialysis sessions) about cross-discipIinary awareness of SJF’s various health conditions, Ms. George suggested that SJF “really needs a health co-ordinator,” and acknowledged that the responsibility for taking steps to put that in place would be hers.