The Right To Die At Home

A family has successfully obtained an order from the Court of Protection for their elderly mother, who was terminally ill, to be moved back home to live out her remaining days.

In VE v AO & Others [2020] EWCOP 23, the application made by the family was not met with considerable opposition and had this been the case, the Court might have been dissuaded from making the order on the basis of welfare concerns. That aside, it is hoped that this case will serve as a useful benchmark for families in similar situations in future and looking to ensure that the wishes of protected parties who lack capacity are still carried out.

VE v AO & Others [2020] EWCOP 23

Case details

The protected party was from Nigeria and her date of birth was not known – her birth not having been registered. She had lived in the UK for 20 years, initially with her daughter.

She suffered from paranoid schizophrenia and had been committed to a care home by the Local Authority some nine years previously, effectively depriving the protected party of her liberty, which had been confirmed by way of Court order.

However, on learning of the terminal diagnosis, her family wanted the previous Court order to be overturned and for the protected party to be moved back home to be cared for by her daughter. A further complication, of course, was that in the onset of the COVID-19 outbreak, there was a risk that she was more likely to become infected within the care home.

The protected party was found to lack the capacity to be able to decide where she wanted to live and although she was discharged from hospital to move back to the care home, the Court agreed at first instance to consider the possibility of moving her back to her daughter’s home. All the family were directed to produce evidence setting out how the protected party would be cared for if she were moved back home. The evidence from the family suggested that they could provide good quality care and that – in a similar fashion to the care home – end of life care could be administered in the community when the time came.

The Court considered a recent decision by Hayden J in BP v Surrey Council [2020] EWCOP 17, which also concerned a protected party being confined in a care home during the coronavirus pandemic, and against the wishes of the family. In BP, the family were not considered to be able to offer sufficient care and therefore the case was solely about contact which had been restricted significantly to protect care home residents from COVID-19. The Court had found that the restrictions were proportionate and necessary even though they did contravene the protected party’s human rights.

However, the case of VE v AO & Others was different because the protected party’s heritage and her cultural tendencies were considered to be an extremely important part of who she was. The protected party had not been in the UK for too long before going into care, and she was very close to her family. Being in the care home distanced her from the family’s Nigerian culture which she immersed herself in very deeply and this went to the heart of the best interests criteria in section 4 of the Mental Capacity Act 2005.

Under section 4(6) the Court must consider – when deciding whether something is in the protected party’s best interests, what the protected party would have done if she still had capacity with regard to her values and beliefs. In this instance, it was clear the protected party would have wanted to be with her family and this was in the end a powerful factor behind the Court’s decision that the protected party should be returned home.