- February 26, 2021
- Posted by: MJC Law
- Category: Court of Protection, Our People
The case of UR  EWCOP 10 concerned a woman who had lived in England for nearly 50 years. At the time of the hearing, UR lived in a care home in Derbyshire. She suffered from physical and psychiatric difficulties including persistent delusional disorder and comorbid depression but she was clearly able to express a strong desire to go back to Poland and live with her family members there.
The case originally started one involving serious medical treatment but after resolving these issues and after hearing UR’s objections to the arrangements for her residence and care, Mr Justice Hayden converted the case into a challenge to the authorisation of the deprivation of UR’s liberty pursuant to s21A of the Mental Capacity Act 2005. At this point, the Official Solicitor instructed Lauren Crow, solicitor and director at MJC Law to act on UR’s behalf.
Before determining the matter, consideration of a number of significant issues was required, namely:
1. As UR has not travelled to Poland in 15 years, there would have to be extensive travel arrangements made for her.
2. If UR moved to Poland, she would not be entitled to funding for her care under section 117 Mental Health Act 1983. Furthermore, her entitlement to healthcare provision in Poland could not be determined until she arrived in Poland and particular assessments were made. This meant that UR would have to fund her own healthcare for the immediate future.
3. It was unlikely that UR would be entitled to state social care in Poland.
4. UR’s family had not previously cared for UR therefore there would be a risk that they would not be able to meet her physical and mental health needs.
5. It had not been confirmed if the supplements UR needs are available in Poland.
6. It had not been confirmed how a hospital bed (with a suitable mattress) will be purchased for UR.
7. How UR would travel in the context of restrictions in place as a result of COVID-19
Notwithstanding these, by the time of the final hearing, all parties were agreed that UR’s return to Poland should be facilitated and a plan had been developed between the parties for this to happen.
Mr. Justice Hayden had little hesitation in deciding that it is in UR’s best interests to return to Poland to her family.
As part of the judgment, Mr Justice Hayden, provided a non-exhaustive checklist to assist other practitioners dealing with other similar cases in the future:
1. Liaison with the relevant Embassy/ Consulate (in the first instance) to ascertain what guidance and assistance can be provided;
2. Evidence as to physical health to travel (GP);
3. Evidence as to mental health to travel (psychiatrist);
4. Legal opinion regarding citizenship, benefit entitlement, health and social care provision in the relevant country, and such other issues relevant to the case;
5. Consideration of any applications that need to be made as a consequence of any legal opinion provided;
6. 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 MCA;
7. Confirmation of travel costings from the commissioners of the care package, both in relation to P and any carers that may need to travel with them (who will pay?);
8. Confirmation that the necessary medication/ care will be available during travel from the UK/ for the immediate future in the new country
9. 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;
10. Best interest evidence from the relevant commissioners;
11. Wishes and feelings evidence;
12. 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);
13. Covid-19 considerations prior to travel (if applicable)
The Vice President was also full of praise for all those involved in the case saying “I consider the preparation and presentation of this case, by all the disciplines involved, is a beacon of good practice. It should be regarded as a paradigm for professionals who find themselves considering similar situations in the future”.
If you would like to speak to someone about the issues raised in this case or any other Court of Protection matter, contact one of the members of our Court of Protection team on 0113 483 0188 or email email@example.com