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Is home a suitable option for residence and care for a vulnerable adult if their family refuses access to support?

View profile for Sophie Holmes
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Court of Protection decides that man with irreversible stoma has the right to choose to die

The case of A Local Authority v MF & Ors [2022] EWCOP 54, which was recently published on the National Archive, concerned a 40-year-old man ‘M’ with a diagnosis of moderate learning disability and schizoaffective disorder. An application was brought by the local authority to remove M from his home (where he was living with his mother) to a supported living facility, with a view to M developing skills that would eventually allow him to live independently.

The judgment details a concerning and lengthy history of non-engagement with professional services by M’s family on his behalf. For example:

  • In 1997, his father reported that M was unable to attend school age 14 years due to ill-health and he never returned, with the family refusing assistance from health or education services despite concerns about his communication difficulties and behaviour.  
  • M failed to attend appointments made for him with disability and psychiatric services in 1998 following two attendances at A&E for self-harm.
  • The family also refused hospital intervention and referrals for psychiatric assessment following periods of “agitated and bizarre behaviour” and M being administered anti-psychotic medications by his GP despite not having any formal diagnosis.
  • In 2001, police were called after a neighbour reported that M was being tied to a radiator by his father and, in 2006, concerns were raised by the family’s landlord of 14 instances of radiators being broken at the home.
  • In November 2009, M was found by police running down the street in his t-shirt and underwear with no shoes on. He was taken home and his father agreed to re-engage with community mental health services, but later declined to allow the service any involvement.

Concerns were raised in 2016 after a further disturbing discovery, which resulted in M being placed at a residential home ‘PH’ where he lived until 2020. An extract of the judgment of Sir Jonathan Cohen is copied below:

“There was no further involvement from statutory services after 2009 until March 2016, when M’s father died suddenly at home. The police were called and when they arrived, they heard noises from behind a locked door that his family were reluctant to open.

The police found M naked from the waist down, covered in faeces, with buckets of urine and a dirty mattress in the room. The room was in darkness as there were no light fittings.

M was initially taken to hospital, where he exhibited disordered thinking and talking to himself. He was able to feed himself but dropped most of the food on the floor and did not know how to use the toilet. He had scratches on his arm and chest and evidence of an old wound on his arm that had been sutured. He was minimally verbal and only able to use one or two words.”

Positively, M made good progress at PH between 2016 and 2020, the Judge noting that “on arrival, he was doubly incontinent; as time went on, this was cured. He became able to feed himself properly, was properly dressed and was able to leave the home to attend day centres and go out with carers. He was restored to functional capacity, was able to converse properly with others and care for his own hygiene”.

By 2020 and due to M’s development, the restrictions in place at PH were no longer necessary. By March, M had returned home, and the local authority had agreed to put a protection plan in place for M which included weekly visits by social workers, bereavement therapy and daily visits by carers to administer medication and engage him in activities.

By August 2020, the family were again obstructing visits by professionals.

In addition, the court had been forced to make a penal order telling the family that if they did not comply with directions, such as allowing care professionals access to M and cooperating with reasonable requests, they may be subject to contempt proceedings.

More recently, the Judge had to deal with numerous, without merit COP9 applications to remove the solicitor appointed to act on M’s behalf in the proceedings. 

The court had the benefit of viewing M and his mother’s weekly schedule, which often included just the two of them attending church or shopping. It was acknowledged that M’s mother provided basic care to him, but the Judge noted “I have no doubt that M and his mother love each other. Either his mother believes M is having a fulfilling life in the arrangement described, or she knows he is not but cannot or will not do anything about it. I am not sure which one it is”.

The local authority’s position, by contrast, was that M was a talented musician and accomplished artist. It was reported by M that he wanted to “do more and not be at home so much” and would be keen to work in a local garage or attend courses to develop his skills in art or music. On one occasion the local authority arranged for M to go to a performance by the Royal Philharmonic Orchestra, only for M to be “banned” by the family from attending.  

It submitted by the local authority that M should move to a small, supported living house, EL, which was close to the family home.

Under Section 2 of the Mental Capacity Act 2005 (‘the Act’), ‘a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain’.

Section 3 of the Act states that, to have capacity, a person must be able to understand, retain, use, and weigh the information relevant to the decision, and must be able to communicate their decision effectively.

When a person is assessed to lack mental capacity and a decision needs to be made, it must be made for them in their best interests in accordance with the tests set out at section 4 of the Act.

In these proceedings, M was assessed by an independent psychiatrist to lack capacity to make decisions about his residence and care and his contact with others, and as such, it fell to the Judge to make a decision in M’s best interests. When making a decision in a person’s best interests, the court is required by sections 4(6) and 4(7) of the Act to give weight to the persons wishes. 

When asked, M was clear that he wanted to live at home and the Judge accepted that these were his “genuine views”. It was suggested however that M’s views were not surprising, given that he had not known anything other than life with his family or at PH.

The Judge was left with two options when deciding M’s residence, either:

  1. Removal of M; or
  2. For M to remain living at home, which would require “injunctive orders requiring attendance at college and free and unfettered access of professionals”

Option two was opposed by the local authority for several reasons, copied below: 

  1. “The family have shown that they will not comply with court orders;
  2. The family are convinced they know best;
  3. The family repeatedly turn away carers and have put obstacles in the way of social workers having uninterrupted meetings with M;
  4. M feels disempowered, his views are dictated by his family;
  5. The family are stuck in their views, with no insight into M’s condition;
  6. This is the only chance for M to reach his potential and he should not be denied it.”

In addition, the Official Solicitor (who acted as M’s litigation friend) agreed that, sadly, it would not be possible to advance M’s potential and improve his independence if he were to remain living at home despite his wishes.

The Judge decided that it was in M’s best interests to move from the family home into supported living, with a further hearing to be listed in March or April 2023 for the arrangements to be reviewed. 

This case is a key example in balancing P’s wishes and feelings with decision making in his or her best interests. If you need advice in relation to the Mental Capacity Act 2005, then it is important to seek this at the earliest opportunity. Our specialist Court of Protection team have extensive knowledge in this area; if you require assistance then please contact us on 01616 966 229.