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Weighing best interests in the Court of Protection - A return home for 'P' vs a risk of serious health issues

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 recent case of Lancashire and South Cumbria NHS FT and Lancashire CC v AH [2023] EWCOP 1 concerned a 46-year-old woman (‘AH’) with a diagnosis of type one diabetes, mild learning disability and suspected borderline personality disorder.

In the first published Court of Protection judgment of 2023 His Honour Judge Burrows decided that AH could return home after spending time living in a care home, despite there being a significant risk of her becoming seriously unwell if she failed to engage with treatment for her diabetes.

Previously, AH had lived alone in a flat which she had occupied for 17 years. Although her diabetes could be properly managed (allowing her to live a fit and healthy life), in the past she had failed to adequately manage her condition or engage with health professionals which had led to her becoming seriously ill with ketoacidosis. She required urgent hospital treatment and was fortunate not to have died.

In a judgment handed down in October 2022, the judge concluded that AH lacked the mental capacity to make decisions concerning her residence and care, specifically in the context of her inability to manage her diabetes independently.

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 goes on to state that 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. Determining AH’s best interests in relation to her residence and care was the purpose of the subsequent court hearing in December 2022.   

The judge had previously approved a care plan for AH involving a period of assessment at ‘placement one’ where she would be deprived of her liberty. She was permitted to visit her flat, usually one night per week, with the permission of staff caring for her. The judge acknowledged in both judgments that “being able to visit and stay at her own flat [were] clearly very important to her”.

During the hearing in December, the NHS trust and local authority invited the judge to find that it was in AH’s best interests to remain living at placement one on the basis that there was discernible risk of her failing to engage with health services again. This would result in her quickly becoming seriously ill, again requiring urgent hospital treatment and the potential for fatal consequences.

In contrast, AH did not wish to remain at placement one and consistently expresses a desire to go home to her flat. HHJ Burrows heard from AH herself at the final court hearing and commented that she spoke candidly to him about her views.

The judge suggested that it would have been “very tempting” to make final declarations that AH should continue to enjoy a “shared residence” arrangement, allowing her to spend time at her own flat whilst living primarily at placement one. It was noted that “having her own home, even if she [was] only able to be there some of the time, and only when others permit her to be there, [was] extremely significant to AH”.

When considering best interests, the court can only decide from the ‘available options’ (i.e. it is unable to make a decision in favour of an option which is not ‘on the table’), in that it can meet P’s needs, is available and the care package could be funded there. It must also, in accordance with s1(6) of the act, have consideration as to the least restrictive option for P. 

Unfortunately, the rent for AH’s flat was funded by housing benefit and would not continue to be beyond the first anniversary of her residence at placement one in accordance with the Housing Benefit Regulations 2006. In addition, those funding AH’s care could not commission a package of care at placement one alongside a community package of care required to keep AH safe in her own home.

This meant that the judge was left with only two options when deciding AH’s residence, either:

  1. Reside at placement one full time; or
  2. Return to live in her own home.

The judge referred to the case of Aintree v James [2013] UKSC 67, which confirms that the court must consider the person’s “welfare in the widest sense” and not just “narrow medical considerations”.

He also placed particular emphasis on the guidance in outlined in Re M [2013] EWHC 3456 COP, which states:

“In the end, if M remains confirmed in a home she is entitled to ask, “What for?”. The only answer that could be provided at the moment is “To keep you alive as long as possible”. In my view that is not a sufficient answer. The right to live and the state’s obligation to protect it is not absolute and the court must surely have regard to the person’s own assessment of her quality of life. In M’s case here is little to be said for a solution that attempts without any guarantee of success to preserve her daily life without meaning or happiness and which she, with some justification, regards as insupportable”.

This was suggested by the Judge to be the “nub of the matter” in this case. He noted that, whilst there were several positive assessments of AH’s quality of life from others, her own assessment of her quality of life was very different and that the court was being asked to approve a plan which envisaged “an indeterminate stay at placement one” which could be “for decades” and “in a place she does not want to be”.

On behalf of the local authority and NHS trust, it was submitted that AH returning to her flat was “not felt to be a safe option” and “likely to result in the same challenges and risks that were present prior to her moving to placement one”. These risks would be mitigated by placement one, as AH would have “access to nursing on-site 24/7 and all care interventions being delivered 2:1”.

In contrast, AH would not benefit from 24-hour nursing care if living at her own flat and the court was advised that district nurses would visit at certain times throughout the day. She would, however, still have access to diabetes care and most significantly would retain the right to her personal liberty and independence.

The judge expressed the difficulty in searching for a ”magnetic factor” when reaching a decision about AH’s residence. He noted that AH’s wishes and feelings were key and, whilst not determinative, they were a “powerful expression of what AH [wanted]”, which was her personal liberty. The judge referred to AH’s flat as a “symbol of her freedom” and acknowledged that removing this from her “would be much more than just surrendering a tenancy” albeit that the case was “finely balanced”.

The judge in this case, persuaded by the magnetism of AH’s wishes and feelings, decided that it was in her best interests to return home and gave credit to the professionals involved in her case.  

HHJ Burrows ended the judgment by stating “So far as AH is concerned, I will give my decision orally in court. I will explain it to her. I will also tell her that she must comply with the treatment plan the professionals put in place. I will emphasise that she is better now because of her treatment since March and that she needs to continue with it in order to keep her safe and well. That is the best I can do”.

This case is instrumental in demonstrating the importance of P’s wishes and feelings in best interests decision making. 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 team have extensive knowledge in this area; if you require assistance then please contact us on 01616 966 229.