​PB & RB (by her litigation friend the Official Solicitor) & London Borough of Haringey [2016] EWCOP 12

​This case involved an application, pursuant to sections 21A and 16 of the Mental Capacity Act 2005, for a review of the standard authorisation granted in respect of RB, who was 74 years old, had dementia and was living in a residential care home. RB, her son, sought primarily an order that she be returned home with a robust package of care.

The case was before District Judge Eldergill.

Facts
There was a long history of court involvement in decision-making on behalf of RB, dating back to 2011. In January 2013 RB was found by the court to lack capacity to litigate and to lack capacity to decide where to live, what care to receive from her family and other persons, and what level of contact to have with them. It was found to be in her best interests to reside alone at home in accordance with her wishes and receive a care plan in accordance with the court’s order. 

RB was admitted to hospital in November 2014 and discharged to the care home as a step-down placement, initially for a period of four week but she has resided there since. A standard authorisation was granted for her to be deprived of her liberty at the care home. Her son challenged this, maintaining that it remained RB’s wish to return home and that this would be in her best interests. He sought in the alternative to a return home that she be placed in a more independent placement with an appropriate package of care, although this was not really pressed because of a lack of availability. PB also sought the lifting of certain restrictions on him or at least their variation to allow him to visit his mother between 6pm and 12am on weekdays.

Law
The Judge carefully considered the following areas of law:

• Articles 5 and 8 of the European Convention of Human Rights and the necessity and proportionality of any infringement of RB’s rights under them.
• Section 4 of the MCA in relation to determining questions about what is in RB’s best interests.
• The case of ITW v Z (2009) EWHV 2525 (Fam) and the guidance provided by Munby J (as he was then) with regard to the different considerations listed in section 4 (at para. 32) and the weight to be given to an incapacitated person’s own wishes (at para. 35). In relation to this latter issue, the Judge also considered what was said by Lady Hale in Aintree University Hospitals NHS Foundation Trust (Respondent) v James (Appellant) [2013] UKSC 67 and by Mr Justice Peter Jackson in Wye Valley NHS Trust v Mr B [2015] EWCOP 60.
• The guidance of Peter Jackson J in The London Borough of Hillingdon v Steven Neary and Mark Neary and Others (2011) EWHC 1377 (COP) at para. 24 and that of the President in Re MM; Local Authority X v MM (by the Official Solicitor) and KM (2007) EWHC 2003 (Fam), (2009) 1 FLR 443 at paras. 115-121 in relation to the issue of the importance of long established family life.

Decision
The court found that it was in RB’s best interests to continue to live at the care home and that in the absence of a clear and consistent wish to go home, and given the finding that she would be sad to leave the care home and be less happy at her home, the factor of “magnetic importance” was RB’s happiness. 

Given PB’s recently improved conduct, all injunctions relating to him were discharged.

The court found that the four conditions relevant to the deprivation of liberty best interests requirement were satisfied, in that:

1. RB was being detained in the care home for the purpose of being given care or treatment in circumstances which amount to a deprivation of her liberty, which was common ground;
2. this was in her best interests;
3. this was necessary in order to prevent harm to her, in that a return to her home would almost inevitably lead to a deterioration in her mental health and emotional well-being and she would be considerably less happy there than she is now in the care home;
4. this was a proportionate response given the likelihood of her suffering harm and the seriousness of that harm. If she still had a clear and consistent wish to live at her home notwithstanding the limitations and complication of life there that would be a very powerful counter-consideration. However, the court did not believe that this was any longer the case.

Discussion
The primary issue was whether it was in RB’s best interests to remain at the care home or to return to her home. Key questions were whether her wishes and feelings remained the same as in 2013 and whether her needs had significantly increased.

The court’s view was that the nature, intensity, unpredictability and complexity of RB’s needs were not of a level which indicated a primary need for healthcare.  However, it considered that her need for emotional support and reassurance was less straightforward.

The court considered the degree of incapacity, the strength and consistency of RB’s views, the likely impact of knowing that her wishes and feelings were being overridden, the extent to which her wishes and feelings were rational, sensible, responsible and pragmatically capable of sensible implementation, and the extent to which her wishes and feelings could properly be accommodated within the court’s overall assessment of her best interests. 

The court’s view was that at the stage of her illness that RB had reached, it was likely that her happiness depended much more on how she lived than on where she lived and that the importance of where she lived was its impact on whether she had company, enjoyed the company, felt secure, cared for, content, had access to her family and so on. The court found that on the balance of the evidence RB is happy and content living in the nursing home, that she feels that it is home most of the time and that she does not want to leave and live by herself. The court found that although she could eventually readjust to living at home, she would be sad to leave her current carers and friends and that it was likely that she would feel anxious, more vulnerable, isolated and more depressed.

Of particular interest is paragraph 211 of the Judgment in which the Judge considered the importance of beliefs and values:

“The relevance and significance of an incapacitated person’s previous wishes, feelings, beliefs and values from a period when they had capacity varies from person to person. In a case where a devout Jehova’s Witness is unconscious and a decision is being made about whether a blood transfusion should be given, the person’s beliefs and values prior to becoming unconscious are of great significance. In a case such as RB’s they must be balanced against the person’s present wishes and feelings. In RB’s case I give more weight to my finding that she is happy and content at E Care Home and feels at home there than I do to speculation about what she would now make of her present situation if she briefly had the capacity to assess her current capacity and circumstances and was in possession of all relevant facts. I expect but cannot know that she would approach it as I have tried to do and would choose the option she feels is most likely to promote her happiness.”

Read the full text of the judgment on Bailii