Vulnerable adult - residence & care - Court of Protection case study

Court of Protection decides that man with irreversible stoma has the right to choose to die

Specialist Court of Protection solicitor, Sophie Maloney, recently represented a vulnerable adult in a sensitive case involving a dispute between family members in relation to their fathers' residence and care.

This case concerned AC, an elderly male with a diagnosis of Alzheimer's dementia. AC was assessed by a consultant psychiatrist to lack capacity to make decisions as to his residence and care, as well as the conduct of these proceedings. We therefore took instructions from our client's litigation friend, the official solicitor.

The court was called upon to determine where AC should reside. AC's (at the time) placement, a residential unit of a care home stated that they could no longer meet his needs due to his increased vulnerability, risk of falls and challenging behaviour.

AC's family did not dispute that he needed to move, but did dispute to which placement he should move to. Two placements were identified by the local authority; the first was the nursing unit conjoined to AC's current placement which would allow AC to be transported easily and he would be familiar with the staff. The second was a previous placement of AC's a short car journey away which would enable some of AC's family members to visit him more frequently.

The court must apply s. 4 of the MCA 2005 when deciding what is in a person’s best interests. S. 4 states:

(3) He must consider —

(a) whether it is likely that the person will at some time have capacity in relation to the matter in question, and

(b) if it appears likely that he will, when that is likely to be.

(4) He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.

(6) He must consider, so far as is reasonably ascertainable —

(a) the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),

(b) the beliefs and values that would be likely to influence his decision if he had capacity, and

(c) the other factors that he would be likely to consider if he were able to do so.

There was however no evidence of AC's present wishes and feelings as he was unable to express these in relation to his residence options. It was also not possible to support him to express wishes and feelings and there was no prospect of him regaining capacity.

The court took into account AC's overall welfare, including the extent to which he benefits from family contact and the potential advantages and disadvantages of each option.

It was important that the decision the court made at the hearing was final, and not interim, due to the risks posed to AC remaining at his (at the time) current placement and the potential detriment to his welfare should he have to undergo multiple moves.

Upon hearing oral evidence from the local authority, the official solicitor and all family members, the judge ordered that it was in AC's best interest to move to the nursing unit conjoined to his current placement as soon as is reasonably practicable and to receive a package of care in accordance with his care plan.

Unfortunately, people can find themselves involved in court proceedings in relation to their loved ones in situations such as this, where a person’s condition deteriorates leading to an increased level of care or different living setting being appropriate, such as a nursing home, and disagreements often arise with family members and professionals.

If you are a partner or family member of a vulnerable person and there is a dispute in relation to their residence, care or contact with others, we may be able to provide you with legal advice and representation. For further information, please contact us on 01616 966 229 or complete our online enquiry form and a member of our specialist team will contact you directly.