The Court of Protection has recently decided that it is in the best interests of a Protected Party to remain living in a care home, where she would be deprived of her liberty, rather than to live with her children in a family home setting with a care package in place.
Reading Borough Council v P (by her litigation friend, the Official Solicitor) SS, HS and KS [2022] EWCOP 27
Background
This case concerns a Protected Party, an 86-year-old woman who suffers from Alzheimer’s and has other illnesses along with a history of falls.
The Protected Party was previously living with her daughter, KS. Following a fall in August 2020, the Protected Party was admitted to hospital with a hip fracture which required a number of operations. There was disagreement between the Protected Party’s children as to the discharge plans. KS wanted her Mother to return to live with her but the Protected Party’s other children were of the view that she needed 24-hour care in a residential placement.
In February 2021, the Protected Party was transferred to a nursing home. As her children were still in dispute as to where she should live, Reading Borough Council subsequently made a welfare application seeking declarations from the Court in respect of the Protected Party’s capacity to make decisions about residence and care, and (if found to lack capacity) declarations as to where she should live and the care she should receive.
It was initially decided in May 2021 that it was in the Protected Party’s best interests to continue being cared for at the care home she had moved to on discharge from the hospital.
However, in July 2021 the care home served notice due to alleged difficulties caused by KS. In September 2021 and following an extensive search of suitable placements, the Protected Party was moved into an alternative care home.
This case was subsequently brought before the Court of Protection again and timetabled for a final hearing. An assessment of all of the alternative living options available to the Protected Party was required.
The Court’s Considerations
The Court was required to decide whether the Protected Party’s residence and current care arrangements at the care home were in her best interests or whether alternatively, she should move to live with her daughter KS or son SS on a trial basis.
In making a decision, the Court had consideration for:
- The best interests criteria in section 4 of the Mental Capacity Act 2005 (MCA);
- The principle of proportionality in section 1(6) MCA states that any intervention by the Court is less restrictive of a person’s rights and freedoms;
- The Protected Party’s past and present wishes and feelings in accordance with section 4(6) MCA – It is well-established that even where an individual lacks capacity, their wishes and feelings are still a factor of significant importance to the Court;
- All of the available living options for the Protected Party; and
- Evidence from an independent occupational therapy (OT) assessor on the suitability of various options and logistical issues.
Decision
Whilst the OT expert did not entirely rule out the possibility of the Protected Party moving into either child’s home, there were issues of accessibility, mobility, and space available to the Protected Party. The social worker was clear that any move for the Protected Party would be highly disruptive to her and so any move should be on a permanent basis.
Whilst there were no findings of fact made in respect of allegations against KS and the family generally, it was quite clear from the evidence that KS had a tendency not to accept professional advice and there was an extremely challenging relationship between KS and the professionals providing care for the Protected Party There was, therefore, a risk of the care package breaking down if the Protected Party were to live with KS.
Overall, it was decided by the Judge that in light of all of the circumstances, the least restrictive option for the Protected Party is to remain in a care home (where she is deprived of her liberty) with continued frequent contact with all of her family.
Comment
This case is an important example of how the principle of proportionality will apply differently on a case-by-case basis.
Here, the Judge’s decision provided the Protected Party with the most suitable living and care environment but also limited her exposure to the ongoing extreme acrimony between her children. Whilst it was clear that the Protected Party wished to have regular contact with members of her family, it was essential that this was achieved in the safest possible way which was in the Protected Party’s best interests.
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Shrdha Kapoor is a Trainee Solicitor in our Dispute Resolution team.
If you have any questions concerning the subjects discussed in this article, please contact Shrdha or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online form.
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