- November 15, 2021
- Posted by: MJC Law
- Category: MJC News
https://www.bailii.org/ew/cases/EWCOP/2021/60.html
A is a 76 year old female who has been diagnosed with late-onset vascular dementia, complicated with agitation, anxiety disorder and psychosis. Proceedings were issued by the local authority in March 2021 as the local authority considered it to be in A’s best interests to move to a residential care home. A had been consistent in her wish to remain living at home so her son, B, agreed to be her primary carer at home. She therefore resided at home with B until mid-August with a package of care consisting of carers visiting her home and attendance at a day centre.
An issue arose in proceedings as to whether A should receive the Covid-19 vaccine and this appears to have triggered a change in position from B. In mid-August he cancelled the care agency and withdrew A from the day centre. B limited the visitors to A’s home, including visits from other family members, and the local authority had not been able to enter A’s home to check on her health and welfare since the end of September. The relationship between B and the local authority was becoming strained and the local authority reported that he would be abusive and agitated when social workers attempted to visit.
During a visit by the social worker on 20 October 2021 B accused the local authority of stealing money from A. A could be seen in the doorway and the social worker noted that she appeared frightened, although B shut the door before A could speak with the social worker. The social worker could hear B continuing to shout once inside the house.
Following the incident above, the local authority made an application to remove A from her home and place her in residential care as a temporary measure. This application was made without notice to B as the local authority felt that there was a risk of harm to A if B was notified of the application given his previous history. There was also a risk that he would attempt to frustrate the orders if he was given notice.
Hearing on 29 October 2021
The application was heard remotely in closed court by Mr Justice Poole on 29 October 2021. In advance of that hearing the court was provided with evidence in relation to B’s past (including previous convictions); an email between B and the legal representative for the local authority; and an extract of a conversation between the social worker and A in the garden on 28 October 2021 whereby A stated that she did not like “him” and upon questioning, shook her head in a way that could have indicated that she did not want to live with B. The court had to balance this against the information that A often confused B with her late husband.
The court was informed that A could not move to residential care until 3 November 2021 and that physical restraint may be required. There was also a possibility that 24 hour care could be provided to A at home from mid-November.
Mr Justice Poole decided on that occasion that he would not grant the local authority’s application as the court considered “that matters had not yet reached the point where immediate intervention, with the authorisation of restraint if necessary, was imperative.” [28] The care home was not available until 3 November 2021 and the court felt that a less restrictive option should be explored in the first instance. The without notice application was therefore adjourned and the court ordered that B should allow the local authority to conduct a health and welfare check at A’s home for up to one hour, on reasonable notice, without B being in the home. It was ordered that he was prohibited from interfering with or obstructing that meeting and a penal notice was attached. This meant that if B breached that order, the local authority could apply back to court to consider whether he should be committed to prison.
Visit to A’s home
The local authority attended A’s house with the court order dated 29 October 2021 and the reasons that the judge had given for making that order. A opened the door on this occasion and was happy for the social worker to enter the property but B stopped them. He threatened to call the police, told them to go away and he shut the door before the social work team could hand over the order.
The order was pushed through the letterbox by the social worker, leaving a corner of the document showing on the outside so that she could see if the documents were taken. B removed the papers and told them to leave, making comments about the court locking him up. He later accepted the Teams link to the open hearing on 2 November 2021 at 10.45am.
Hearing on 2 November 2021
There was a closed hearing, without notice to B, at 10am in which the court was updated on the events since 29 October 2021. The court then held an open hearing at 10.45am which B attended, albeit briefly. B told the court that A was well and was improving. He said that he was opposed to any visitors entering the home as they may spread Covid-19 to him and A. He felt that he and A should be left alone and that it was no-one else’s business how they chose to live. The court tried to explore the circumstances in which B would allow people to enter A’s home such as mask wearing but B became more agitated and left the hearing. Following a separate discussion by telephone between B and the legal representative for A, it was established that B left the hearing due to technical issues but that he would not be re-joining as he did not feel he was being listened to.
Upon reviewing the evidence and speaking with B at the hearing, Mr Justice Poole considered that B had
become implacably antagonistic to the Local Authority, social workers, the Court, and the legal representatives for A. His avowed reason for not allowing visitors into the house appears to be a fig leaf – his real reason is distrust of all those involved in this case, apparently initially triggered by consideration of A being vaccinated, not protection from Covid-19. [36]
His Lordship was concerned that B appeared to be struggling with his mental stability and that given his previous history, “there were deep concerns that A may be suffering and/or is at risk of suffering significant harm whilst she is under his sole care.” [37]
In light of the above and given B had failed to comply with the previous orders, His Lordship granted the local authority’s application for A to be removed from her home and placed into a care home on an interim basis. The court weighed the possible risks to A of a move against her remaining at home with B and found that it was in her best interests to move to the care home for an interim period. The court did not consider that there were any other options available as 24 hour support could not be put in place until at least mid-November and even then, it would be subject to risk assessments. His Lordship authorised the use of restraint as a last resort, made injunctive orders against B to prevent him from obstructing the transfer and listed the matter for a review in approximately one weeks time.
Update on the move
The court was informed by the local authority on 3 November 2021 that A was successfully moved to the care home without the need for any physical intervention or restraint.
Discussion
The majority of hearings within the Court of Protection are dealt with on notice to the parties involved and the steps taken in this case may give rise to concern to those who are not privy to the full facts of this case. It is important to emphasise that it is rare to come across without notice applications as they are exceptional and not the norm.
There must be a real necessity for an application to proceed without notice and the court must scrutinise whether it is appropriate in the circumstances to hear an application without notice: it is possible for the court to refuse such an application and direct that notice should be given before the application will be heard. The court was in a difficult position in this case and had to balance B’s Article 6 rights with A’s Article 8 rights, ensuring that any risk of harm to A was minimised.
Formulating a position on behalf of A in this case was problematic and A’s litigation friend found herself in a difficult position when considering A’s best interests. Between 1 April and the end of June, the litigation friend had visited A on approximately four occasions and A had always expressed a preference to be at home. A spoke fondly of home and the memories she had there and had been clear that residential care was not something that she would want to consider. Regrettably the litigation friend had not been able to visit or speak with A for some time which meant that her up to date wishes and feelings were unknown. Although A’s legal representatives had managed to speak to her by telephone on two occasions in October and she reported that things were well, it was not possible to ascertain her up to date wishes about continuing to reside at home with B. Whilst B had allowed A’s legal representatives to speak to A by telephone, matters were further complicated by the nature of the without notice application which meant that the same could not be discussed with A as there was a risk that B would be alerted to the application.
The litigation friend was concerned that the current situation was unsustainable but was equally concerned about the impact on A of removing her from her home against her will, especially in circumstances where physical force could be required. Whilst the removal of A from her home was against her previously expressed wishes, the litigation friend was conscious that circumstances had changed since she last spoke with A and her current wishes and feelings about living with B were unknown.
The decision making in this case was complex, with a number of competing factors to be weighed into the balance. The litigation friend had the difficult job of balancing A’s previous clear wishes against the circumstantial evidence of risk, the lack of updating wishes and feelings and the risk of moving her. Taking all of those factors into account and given it appeared that removal to a care home would not be a decision that A would have taken for herself, the litigation friend did not feel able to advocate for or against a move. The local authority was therefore invited to prove its case and whilst the advantages and disadvantages of moving A and allowing her to continue residing at home with B were highlighted to the court on A’s behalf, the unusual nature of this application meant that a neutral position was advanced on behalf of A. As ultimate decision maker, the decision was left to the court upon consideration of all of the evidence.
Having considered all of the relevant factors and weighed them in the balance, the court ultimately decided that the welfare and safety of A required that steps be taken to remove her from her home, even though her previous wishes indicated that this would not be something that she agreed with. It was a difficult decision for the court to make but one that His Lordship felt forced into as a result of B’s failure to engage with the parties and/or the court.
A’s best interests were always at the forefront of decision making but this case provides a reminder that what is considered to be in a person’s best interests is not always in accordance with their wishes and feelings. Whilst a person’s wishes and feelings are extremely important in Court of Protection cases, they do have to be balanced against a number of other considerations under s4 of the Mental Capacity Act 2005.
If you would like to speak to someone about a Court of Protection welfare case to see if we can help, please contact one of the members of our Court of Protection team on 0113 4830188 or email enquiries@mjc-law.co.uk .