The case of Re PB considers the balance between protecting an individual’s right to private and family life and preserving a stable placement.
HHJ Burrows provides a thoughtful discussion about the limits that challenge the Court of Protection’s decision-making powers, where available options are limited by the position taken by a private care provider.
Background
The case concerns PB, a lady in her 80’s who lived in a residential care home and was assessed to lack capacity to make decisions about her residence and care.
SB, PB’s daughter, was clearly devoted to her mother and wished to remain actively involved in her care. However, the relationship between SB and the care home had deteriorated significantly following a series of incidents which the care home reported put PB and the staff and other residents at risk. Prior to PB residing in a residential care setting, eight different care agencies had been commissioned to provide care to PB in her home but had ceased involvement, citing issues in the working relationship with SB.
Less restrictive options, such as time-limited visits and controls on phone contact, had been explored but deemed insufficient to address the concerns. It was reported that SB’s behaviour also contributed to an increasingly unsafe environment for PB, including incidents such as damage to PB’s belongings and her room, which impacted both PB’s wellbeing and the running of the placement.
It was decided by the DJ Jackson that it was in PB’s best interests to remain living at the current care home, which was the only available option, and for her contact with SB to be restricted to two hours of supervised contact per week, to avoid the home issuing notice to PB to leave which would cause her materially greater harm. The decision of DJ Jackson was appealed by SB and heard before HHJ Burrows. SB argued that insufficient consideration had been given as to whether the level of contact was in PB’s best interests and whether the restrictions were compatible with Article 8 of the European Convention on Human Rights (“ECHR”).
The appeal was dismissed, with HHJ Burrows finding that the DJ Jackson carried out the appropriate balancing exercise and had not erred in law or principle in reaching her decision.
The Court’s approach
It has been well established since the case of N v ACCG [2017] UKSC 22 that, when determining best interests under the Mental Capacity Act 2005, the Court of Protection can only choose between options that are legally and practically available. HHJ Burrows commented that, “the court does not have a free-standing power to require public authorities, or private providers, to create services, placements or arrangements that do not exist or which they are unwilling to offer” [54]. Dissatisfaction with the options that are in fact available to the person may, in an appropriate case, give rise to public-law or regulatory challenge, neither of which would be heard in the Court of Protection.
In Re PB, the evidence suggested that unrestricted contact could have resulted in the care home terminating PB’s placement due to the impact of SB’s behaviour on PB and staff. The Judge therefore had to balance the importance of PB’s relationship with her daughter against the significant risk of losing what was, at the time, the only suitable placement.
The Court of Protection is not tasked with engineering a perfect care environment. It must make decisions based on the options available to it. That often means recognising when certain factors are ‘magnetic’ and must be prioritised over other factors relevant to the best interests analysis. Whilst restrictions on family contact is a serious interference with Article 8, it may nonetheless be justified where it is necessary and proportionate to protect the individual’s welfare. In this case, SB’s contact was said to have a disruptive effect, contributing to issues within the care home environment generally and undermining the consistency and quality of PB’s care. The court therefore had to consider both PB’s private and family life rights under Article 8 ECHR, and the need to ensure a stable and therapeutic setting for her as a vulnerable individual.
Article 8 and Regulation 9A
A lot of care homes are privately owned and operate pursuant to contractual arrangements, which ordinarily give the provider a right to terminate the persons occupation in defined circumstances. At the same time, HHJ Burrows made clear that, “care home providers performing regulated activities do not operate in a purely private sphere. By virtue of section 73 of the Care Act 2014, they are to be treated as public authorities for the purposes of section 6 of the Human Rights Act 1998. Restrictions on contact between a resident and her family therefore engage Article 8 of the Convention” [59].
HHJ Burrows also referred to Regulation 9A of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, which imposes obligations on providers to facilitate visits to their residents wherever possible, save for exceptional circumstances, adopt the least restrictive measures, and ensure that any restrictions are necessary and proportionate. The providers' compliance with this obligation should be subject to oversight by the CQC, and failure to comply could result in regulatory action attracting significant consequences.
Whilst the court does not have direct control of the wider framework, HHJ Burrows stressed that the court still has responsibility to scrutinise the proportionality of contact restrictions. Analysis is clearly fact-sensitive and time-limited. HHJ Burrows commented that, “any diminution of contact beyond that authorised by the court, or any failure by the local authority to keep contact arrangements under active and meaningful review, would require careful scrutiny in future proceedings” [65] and “equally, any material change in circumstances, whether a shift in the provider’s position, the emergence of a realistic alternative placement, or the taking of regulatory action, may require the welfare balance to be revisited” [66].
Conclusion
Re PB provides valuable insight around an issue that frequently arises in the Court of Protection. It recognises the tension between the importance of family life and working within the frameworks of care provision, particularly where only one viable option has been identified.
Best interest decisions are often shaped not only by legal principles and the views and wishes of the person, but also by the practical options available. The judgment also reinforces the importance of ensuring that restrictions on contact remain necessary and proportionate to the identified risks and subject to ongoing review.
By Megan Taylor and Sophie Atherton
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