UR, Re (Rev 1)

G and UR’s niece, E, have both repeatedly and enthusiastically offered to care for UR. They live in Silesia in South West Poland and they have accommodation which would be suitable for her. UR has the financial wherewithal to fund her own package of care, should that be required.

February 1952 UR’s date of birth (68 years old)

August 1955 UR’s sister (G) date of birth (65

years old)

Poland

Disorder

(social worker)

‘Where a standard authorisation has been given, the court may determine any question relating to any of the following matters –

‘If the court determines any question under subsection (2), the court may make an order –

‘(1)The relevant person meets the best interests requirement if all of the following conditions are met.

(2)The first condition is that the relevant person is, or is to be, a detained resident.

(3)The second condition is that it is in the best interests of the relevant person for him to be a detained resident.

(4)The third condition is that, in order to prevent harm to the relevant person, it is necessary for him to be a detained resident.

(5)The fourth condition is that it is a proportionate response to—

Article 5

Right to liberty and security

‘(1) 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. (2) The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.

He must consider -

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.

He must consider, so far as is reasonably ascertainable –

He must take into account, if it is practicable and appropriate to consult them, the views of -

‘The most that can be said, therefore, is that in considering the best interests of this particular patient at this particular time, decision-makers must look at his welfare in the widest sense, not just medical but social and psychological ……. they must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would be likely to be; and they must consult others who are looking after him or interested in his welfare, in particular for their view of what his attitude would be’

‘The purpose of the best interests test is to consider matters from the patient's point of view. That is not to say that his wishes must prevail, any more than those of a fully capable patient must prevail. We cannot always have what we want. Nor will it always be possible to ascertain what an incapable patient's wishes are. .... But insofar as it is possible to ascertain the patient's wishes and feelings, his beliefs and values or the things which were important to him, it is those which should be taken into account because they are a component in making the choice which is right for him as an individual human being’

‘10. Where a patient lacks capacity it is accordingly of great importance to give proper weight to his wishes and feelings and to his beliefs and values …… . 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

This is not an academic issue, but a necessary protection for the rights of people with disabilities. As the Act and the European Convention make clear, a conclusion that a person lacks decision-making capacity is not an “off-switch” for his rights and freedoms. To state the obvious, the wishes and feelings, beliefs and values of people with a mental disability are as important to them as they are to anyone else, and may even be more important. It would therefore be wrong in principle to apply any automatic discount to their point of view.

12 .... It is, I think, important to ensure that people with a disability are not – by the very fact of their disability – deprived of the range of reasonable outcomes that are available to others …..

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;

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

The possible impact on P of knowledge that their wishes and feelings are not being given effect to;

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

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 their best interests.

‘A great judge once said, ‘all life is an experiment’, adding that ‘every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge’ (see Holmes J in Abrams v United States (1919) 250 US 616 at 630). The fact is that all life involves risk, and the young, the elderly and the vulnerable, are exposed to additional risks and to risks they are less well equipped than others to cope with. But just as wise parents resist the temptation to keep their children metaphorically wrapped up in cotton wool, so too we must avoid the temptation always to put the physical health and safety of the elderly and the vulnerable before everything else. Often it will be appropriate to do so, but not always. Physical health and safety can sometimes be brought at too high a price in happiness and emotional welfare.

The emphasis must be on sensible risk appraisal, not striving to avoid all risk, whatever the price, but instead seeking a proper balance and being willing to tolerate manageable or acceptable risks as the price appropriately to be paid in order to achieve some other good – in particular to achieve the vital good of the elderly or vulnerable person’s happiness. What good is it making someone safer if it merely makes them miserable?’

‘GC is a man in the 83rd year of his life and my concern is to ask myself: how will he most comfortably and happily spend the last years that are available to him? ….. Next it seems to me that for the elderly there is often an importance in place which is not generally recognised by others; not only the physical place but also the relational structure that is associated with a place ...’

‘several last months of freedom in one's own home at the end of one's life is worth having for many people with serious progressive illnesses, even if it comes at a cost of some distress’, and that ‘although there is a significant risk that a home care package at home will ‘fail’, there is also a significant risk that institutional care will 'fail' in this sense (that it, produces an outcome that is less than ideal and does not resolve all significant existing concerns)’

Article 8

‘the safe approach of the trial judge in Mental Capacity Act cases is to ascertain the best interests of the incapacitated adult on the application of the section 4 checklist. The judge should then ask whether the resulting conclusion amounts to a violation of Article 8 rights and whether that violation is nonetheless necessary and proportionate’.

‘there will undoubtedly be many cases in this context where Article 8 considerations will be a very important factor. Where (as here) Article 8 is engaged and where (as here) there will be a potential interference with the right to family life which has to be respected then the interference has to be justified:

that is fundamental. … Where (as here) the family life is long standing, is existing and is of high quality, due weight needs to be given to that in assessing whether the proposed interference with the family life is justified and proportionate and in reaching the overall conclusion on best interests’.

The approach of Thorpe and Davies LJ in LBX (supra) has been widely applied see e.g: A North East Local Authority v AC and BC [2018] EWCOP 34, at para 157; in An NHS Foundation Trust v AB and CD [2019] EWCOP 45, para 28.

Paragraph 2(2)(f)(iv) of schedule 3A(1) provides: ‘Exceptions: leaving home’ Exception 1 seeks to define the circumstances surrounding “leaving home necessary for certain purposes”. It outlines that it is to be deemed “reasonably necessary for the person concerned ("P") to leave or be outside the place where P is living ("P's home") if that relates to ‘moving home’ on the basis that it is ‘in connection with the purchase, sale, letting or rental of a residential property’”.

physical assistance, given to a person who is in need of it by reason of age, illness or disability, in connection with—

the prompting, together with supervision, of a person who is in need of it by reason of age, illness or disability in relation to the performance of any of the activities listed in paragraph (a) where the person is unable to make a decision in relation to performing such an activity without such prompting and supervision, or

any form of training, instruction, advice or guidance which—

Sutton that this is less likely to be required if UR has received the vaccination. I heard evidence from the key social worker, Mrs Ford, who told me that UR has (no doubt as a facet of her psychological problems), a fear of needles and injections. Sometimes she has been resistant to her antipsychotic depot medication and it is thought to be because she is afraid of the injection. Equally, there have been other occasions where it has been possible to persuade UR to comply.

‘Schedule 3 –

gives effect in England and Wales to the Convention on the International Protection of Adults signed at the Hague on 13th January 2020 (Cm. 5881) (insofar as this act does not otherwise do so), and

makes related provision as to the private international law of England and Wales’

this jurisdiction in circumstances where the person in question is not habitually resident in England and Wales; and (b) provide for the recognition and enforcement in England and Wales for orders of foreign courts concerning individuals who lack capacity.

Scope of jurisdiction

Habitual residence is a question of fact and is not a legal concept such as domicile (A v A (Children: Habitual

The test adopted by the ECJ is the ‘place which reflects some degree of integration by the child in a social and family environment’. The child's physical presence should not be temporary or intermittent (Proceedings brought by A

Consideration needs to be given to conditions and reasons for the child's stay in the state in question (Mercredi v

The essentially factual and individual nature of the enquiry should not be glossed with legal concepts which would produce a different result from that which the factual enquiry would produce (A v A (supra) at para 54);

Both objective and subjective factors need to be considered. Rather than consider a person's wishes or intentions, it is better to think in terms of the reasons why a person is in a particular place and his or her perception of the situation while there - their state of mind (Re LC (Children) [2014]

It is the stability of the residence that is important, not whether it is of a permanent character (Re R (Children)

Habitual residence is to be assessed by reference to all the circumstances as they exist at the time of assessment (FT v MM [2019] EWHC 935 (Fam) at para 13).

‘The quality of a child's stay in a new environment, in which he has only recently arrived, cannot be assessed without reference to the past. Some habitual residences may be harder to lose than others and others may be harder to gain. If a person leaves his home country with the intention of emigrating and having made all the necessary plans to do so, he may lose one habitual residence immediately and acquire a new one very quickly. If a person leaves his home country for a temporary purpose or in ambiguous circumstances, he may not lose his habitual residence there for some time, if at all, and correspondingly he will not acquire a new habitual residence until then and later. Of course there are many permutations in between, where a person may lose one habitual residence without gaining another’.

The overarching test for habitual residence should be the same whether one is considering adults or children, although different factors may or will have differing degrees of relevance [para 66];

The expression ‘degree of integration’ is an overarching summary or question rather than the sole, or even necessarily the primary factor in the determination of habitual residence. The court's focus should not be narrowed to this issue alone as a question of fact [para 68 and para 72];

Integration, as an issue of fact, can be an emotive and loaded word. It is not difficult to think of examples of an adult who is not integrated at all in a family environment and only tenuously integrated in a social environment but who is undoubtedly habitually resident in the country where they are living. Integration as an issue of fact can also raise difficulties when a court is determining the habitual residence of a person who lacks capacity [para 70];

The court ‘should not lose sight of the wood for the trees’ [para 71].

matters that they have to pursue in order to care for her. What is striking about the assessment is the family’s unflinching, unhesitating commitment to her. In determining where her best interests lie, I have given very significant weight to that obvious love and commitment.

UR’s past and present wishes and feelings (section 4(6)(a) MCA): UR has been clear and consistent in her wish to return to Poland (see chronology). Most recently, UR’s solicitor attended upon her (by telephone) on 22 January 2021. During their conversation, UR confirmed that she would like to return to Poland as soon as possible and would accept professional support. She is happy to travel by plane (accompanied by nursing staff) and understands that this may not be immediate due to travel restrictions. Significant weight should be given to UR’s wishes.

UR’s beliefs and values (section 4(6)(b) MCA): UR cared for her father following her mother’s death and remained with him in Poland when he was unable to care for himself. Such family values (caring for each other) are important and returning to Poland to live with her immediate family/ have contact with extended family (in circumstances where she no longer has any family in the UK) is significant. Returning to Poland would also allow UR to speak her first language and eat Polish food – which she has stated she misses. Additionally, both UR and her sister are Catholic and it is likely that she would be able to more fully engage in her religious beliefs if she were to return to live with her family.

Consultation with those engaged in caring for UR or interested in her welfare (section 4(7)(b) MCA). The following persons agree that a move to Poland would be in UR’s best interests:

UR’s sister and niece: they are clear in their want to care for her and the ISW sets out a number of strengths regarding this arrangement. UR’s sister is retired and plans to look after UR full time with support from her daughter who works. Both appear willing and able to take advice/ undergo further training (regarding meeting UR’s needs) where necessary.

UR’s cousin (U): she lives in San Diego and the social worker spoke with her by telephone. The cousin visited UR last year (when she was in hospital) and described the family support available in Poland which included another cousin (A) who is a retired teacher and who lives in walking distance from the family home in Poland and who would also be willing to support UR.

The Local Authority: the social worker (Christine Ford) confirms within her third witness statement that ‘in my view, Poland offers UR the potential to gain a quality of life which she has not experienced for a long time, in a least restrictive environment of her choosing’.

The CCG: Marie Warrington has confirmed that it would be in UR’s best interests to move to Poland as it is her expressed wish to return to live with her family.

The Trust: from a mental health perspective, the risks of anxiety and agitation (regarding travel) can be mitigated (Dr Prakash, 25 November 2020).

The GP: from a physical health perspective, there is no reason that UR cannot travel (Dr Khalil, 9 December 2020).

UR’s husband: UR’s relationship with her husband is complex, however they continue to have telephone contact (most recently on 22 November 2020, 30 November 2020, 10 December 2020, 30 December 2020, and 12 January 2021). On 15 January 2021. UR’s husband confirmed (by email) to UR’s solicitors that ‘[UR’s] sister is aware of [UR’s] condition having visited her in the UK. And also, in 2005, [UR] spent 3 months living with her sister in Poland. That was 3

years after [UR] had several admissions to the psychiatric units. During those 3 months in 2005, [UR’s] mental health improved enormously. Up to about 85% normal…. possibly more. That was just being with her sister, her sisters daughter and some cousins who live close by (because they are blood relatives). This had an immensely positive effect on [UR]. There’s no doubt that [UR] benefitted from being with her closest relatives. [UR] has said that she wants to go there. I think it's a great idea and I support that. I hope that [UR] is able to achieve that goal as soon as it's possible to do so’.

Thereafter, on 18 January 2021, UR’s husband confirmed that UR ‘has often talked about going to live with her sister in Poland, and has clearly discussed it on many occasions with her sister. This is the only alternative plan that she aspires to. She does not want to spend the rest of her life in a care home. Moving to Poland would be a way forward for her, for the reasons that I mentioned in my last email …..’

The travel arrangements are extensive in circumstances where UR has not travelled to Poland (or any significant distance) for around 15 years (since 2005);

UR will not be entitled to section 117 MHA 1983 aftercare provision, and her disability benefit/ entitlement to healthcare provision in Poland will not be determined until her arrival and subsequent assessment by relevant services. It is likely (for the immediate future) that UR will need to pay for her own care;

Based on income, it is unlikely that UR will be entitled to social care as the family income exceeds 528 Polish Ztoty per month;

UR’s family have not cared for her before and there is a risk that they be unable to meet her physical and mental health needs;

It is unclear if UR’s prescribed supplements are available in Poland;

It is unclear how a hospital bed with a suitable mattress will be purchased for UR in readiness for her arrival.

own sense of autonomy, nor is one which can effectively promote capacitous decision making. In making those observations I intend no criticism of the Local Authority or the CCG, both of whom have, I emphasise, gone to the most impressive lengths in this case to put a package of care together that enables UR to travel to Poland. None of the above should be taken as a criticism of the care home either. On the contrary, it is manifest that UR has received consistent and good quality care.

Liaison with the relevant Embassy/ Consulate (in the first instance) to ascertain what guidance and assistance can be provided;

Evidence as to physical health to travel (GP);

Evidence as to mental health to travel (psychiatrist);

Legal opinion regarding citizenship, benefit entitlement, health and social care provision in the relevant country, and such other issues relevant to the case;

Consideration of any applications that need to be made as a consequence of any legal opinion provided;

Independent social work evidence regarding the viability of the proposed package of care in the relevant country if such evidence cannot be provided by the parties to the proceedings or a direction under section 49

Transition plan/ care plan, to include a contingency plan and how the matter should return to court in the event of an emergency in implementing the proposed plan;

Best interest evidence from the relevant commissioners;

Wishes and feelings evidence;

Residual orders to allow the plan to be implemented, including single issue financial orders regarding opening/closing of UK bank accounts, the purchasing of essential items to travel (if necessary);

Covid-19 considerations prior to travel (if applicable)

IT IS DECLARED PURSUANT TO SECTION 15 OF THE MENTAL CAPACITY ACT 2005 THAT:

It is lawful, as being in UR’s best interests, to be transported from AL Nursing Home to East Midlands Airport in accordance with the transition plan attached to this order and to thereafter reside with her sister and niece within the Polish property. For the avoidance of doubt, UR:

Has a reasonable excuse to leave AL Nursing Home as she falls (directly or implicitly) within the exemptions contained in paragraph 2(2)(f)(iv), paragraph (5)(c) and (e), paragraph (7) and/or paragraph 13 of schedule 3A(1) of the Regulations, or (2) Otherwise has reasonable excuse to leave the UK in accordance with the finding of this court that it is in her best interests to do so; recognising that the exemptions set out in paragraph 2 of schedule 3A(1) of the Regulations are not exhaustive by application of paragraph 1(2)(a) of schedule 3A(1) of the Regulations.

IT IS ORDERED PURSUANT TO SECTION 16(1)(a) AND SECTION 16(2)(a) AND BEING A RELEVANT DECISION UNDER SECTION 4A(3) AND (4) OF THE MENTAL CAPACITY ACT 2005 AND THEREBY PERMITTING UR’s DEPRIVATION OF LIBERTY, AND IF AND TO THE EXTENT THAT SHE IS SO DEPRIVED:

It is lawful and in UR’s best interests to be transported from AL Nursing Home to East Midlands Airport in accordance with the transition plan attached to this order and to thereafter reside with her sister and niece within the Polish property. To the extent that the restrictions in place during the transportation constitute a deprivation of her liberty, such deprivation is authorised by the court.

In the event that it is necessary, the Local Authority and CCG, by their employees or agents, may use reasonable and proportionate measures to transport UR from AL Nursing Home to East Midlands Airport which must be done in a way which is the least restrictive and consistent with UR’s best interests and implemented in a way calculated to cause UR the least distress, and only such force as is necessary is used and that any safety restraint techniques are used only by persons having appropriate training. For the avoidance of doubt, the level of restraint relates to chemical sedation and not physical restraint.

THE COURT HAS DETERMINED PURSUANT TO

SECTION 21A(2)(a) AND SECTION 21A(3)(b) OF THE

MENTAL CAPACITY ACT 2005 THAT:

The best interests qualifying requirement is not met. In particular:

It is not in UR’s best interests to continue to reside at AL Nursing Home and to receive a package of care therein in accordance with her assessed needs;

In order to prevent harm to UR, it is not necessary for her to reside at AL Nursing Home;

UR’s continued residence at AL Nursing Home is not a proportionate response to the likelihood of her suffering serious harm if she were not a detained resident.

Upon UR leaving the jurisdiction of England and Wales, the Local Authority, in its capacity as the supervisory body, is directed to terminate the standard authorisation.

AND IT IS ORDERED THAT:

Permission is granted to the parties to jointly instruct Mr Tomasz Kurek of Kurek & Partners Law Office, Warsaw, Poland, to prepare the power of attorney and to thereafter make the necessary application to the Voivode to confirm UR’s Polish citizenship. The court approves 1-2 hours of work at a cost of between £100-200 plus 23% VAT for the preparation of the power of attorney and 10-15 hours of work at a cost of £1,000-1,500 plus 23% VAT for the application to be made to the Voivode. Such cost shall be apportioned equally between the parties and is a necessary expense upon UR’s public funding certificate.

The Local Authority and CCG shall, forthwith, take the necessary steps to ensure that the transition plan [E/96-90] and, upon completion, an updated care plan (prior to her discharge from AL Nursing Home) are translated into Polish, and for copies to be thereafter provided to UR’s sister and niece. The transition plan will be provided to UR’s sister and niece within 4 weeks of the date of this order, and the updated care plan within 2 weeks of it being completed. Any costs in relation to such translation are to be borne equally by the Local Authority and CCG.

Upon UR leaving the jurisdiction of England and Wales, these proceedings shall conclude.

The solicitor for the Local Authority has permission to disclose a copy of this order to AL Nursing Home.

The Local Authority shall ensure that a copy of this order is provided to its DoLS team.

The CCG shall ensure that a copy of UR’s medical records (hospital and GP) are provided to any health and social care provider in Poland (which is/ will be providing health and social care to UR in Poland) upon being notified of the names/ addresses of any providers.

Liberty to any party to apply at 48 hours’ notice to the court and the other parties to vary or set aside any of the terms of this order on a general basis. Additionally, if UR indicates a wish to return to the UK during the 3-day window staff are with her in Poland and lacks capacity to make the decision to return to England, an urgent hearing will be required which will need to consider (inter alia) whether UR remains habitually resident in England and Wales. Any application so made shall be reserved to Mr Justice Hayden.

This order takes effect when made, whether or not it bears the seal of the court.

No order as to costs, save for a detailed assessment of the costs of UR who is a legally aided party.