Cc v Kk (1St Respondent) Stcc (2Nd Respondent)

Hearing dates: 17th and 18th May 2012

This judgment is being handed down in private on 26 ^th July 2012 It consists of 28 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of KK must be strictly preserved.

Introduction

In these proceedings, the Court of Protection is concerned with an 82-year old woman, whom I shall refer to as "KK", who is currently living in a nursing home, hereafter called "STCC". All the evidence suggests that she is being looked after very well. But KK says that she wants to go home to the bungalow where she lived before she was admitted to STCC.

This judgment addresses two preliminary issues – first, the question whether KK has capacity to make decisions about her residence and care, and, secondly, whether the circumstances in which she is residing at STCC amount to a deprivation of liberty under Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Introduction

KK was born in 1929 and is therefore now aged 82. For most of her life, she lived in the North East of England. When she was three years old, she was left paralysed on the left side after receiving a diphtheria inoculation. In her early seventies, following the death of her husband after 34 years of marriage, she moved to a village in C where she settled down in a rented bungalow.

In recent years KK has developed Parkinson's Disease and vascular dementia, and, coupled with her hemiphlegia, these conditions have significantly affected her life. For most of her life, her physical disability did not prevent her walking, but she now requires a wheelchair or a hoist to be mobilised. The local social services arranged support, including visits by care staff, meals on wheels and an emergency "lifeline" call service. In July 2009, JL of the local authority, ("CC"), was allocated as KK's social worker. At that stage, there were a number of ongoing concerns about her vulnerability, in particular her susceptibility to frequent falls and her extensive use of the "lifeline" emergency call service. She spent short periods in hospital on a number of occasions. Carers were assisting her with all aspects of her personal care. All meals were made for her, although she was able to eat them independently. She was beginning to spend more time at night sleeping in a recliner chair rather than be assisted into bed. In short, she needed total care and required prompting, support and assistance with all activities of daily living and personal care.

On 5 ^th July 2010, KK was admitted to hospital following a further fall. At hospital, she presented as confused and muddled. Although she was still able to recognise the social worker when he visited, she seemed disoriented in time and place. She was assessed by a psychiatrist as lacking capacity to make decisions regarding her care needs and residence arrangements. A best interests meeting decided that she should be placed in residential and on 13 ^th August she moved to a nursing home in a seaside town, having expressed a preference for being by the sea. By October 2010, however, she had made some improvement and was then assessed by JL, after consultation with the nursing home matron and KK's Independent Mental Capacity Advocate ("IMCA"), as having regained capacity to make decisions regarding care needs and residence arrangements. She was accordingly discharged home from the nursing home on 14 ^th December.

Thereafter, she remained at home for some seven months. During that period, she resumed her extensive use of the lifeline emergency call service. In his statement for these proceedings, JL informs the court that KK was recorded as using the lifeline service on no fewer than 1,097 occasions between January 8 ^th and July 6 ^th 2011. The vast majority of those calls related to her anxiety and need for reassurance, rather than any specific medical or social emergency. Increasingly, the calls took place during the day as well as at night. On 29 ^th July, KK was assessed by a community matron as lacking the capacity to make decisions about her care needs and residence. She was admitted to another local nursing home, STCC, where she was found to be suffering from dehydration and a urinary tract infection.

A further capacity assessment by JL on 10 ^th August again concluded that she lacked capacity to make decisions about residence and care, although she expressed a strong wish to return home. On 12 ^th August, STCC, being the "managing authority" for the purposes of the Deprivation of Liberty Safeguards ("DOLS") under Schedule A1 to the Mental Capacity Act 2005, granted an urgent authorisation for the deprivation of KK's liberty and requested a standard authorisation from the supervisory body under the DOLS, CC. On 18 ^th August, a capacity assessment for the purposes of the standard authorisation procedure under the DOLS was carried out by Dr T. He qualified as a doctor in 1990, became a GP in 1997 and a consultant occupational physician in 2008. He has undergone training on the DOLS delivered by the Royal College of Psychiatrists supplemented by updated training organised regionally and locally. He concluded that KK lacked capacity to make decisions regarding her care needs and residence arrangements. A standard authorisation was granted by CC on the same day.

On 2 ^nd September, KK filed an application under s.21 A of the Mental Capacity Act 2005 challenging the standard authorisation. On the same day, District Judge Batten gave directions in those proceedings inter alia appointing the Official Solicitor to act as KK's litigation friend and transferring the proceedings to the High Court. On 27 ^th September, the matter came before me for the first time. I made directions including inter alia for a mental capacity assessment by Dr. TH, a consultant psychiatrist with 22 years of clinical experience as an NHS consultant. Meanwhile, STCC had made a further request for a standard authorisation. A further capacity assessment was carried out by Dr. T, who concluded that KK lacked capacity, and a further standard authorisation was granted on 29 ^th September. On 14 ^th October, the independent psychiatrist Dr. TH concluded her capacity assessment in which she found that KK lacked capacity to make decisions regarding her care needs and residence.

At a further hearing before me on 22 ^nd October, I made an order providing for a series of trial visits home for KK during the day and a further review by the court thereafter. On 8 ^th November, STCC made a further request for a standard authorisation but on this occasion, the application was not successful. The assessor noted that there was now an agreed proposal that KK's time at home would be further extended and that it was proposed that the care plan could be amended to include overnight stays at home. In those circumstances, the assessor concluded that the plan was now "less restrictive", that KK was expressing compliance with the plan and that in those circumstances she was not being deprived of her liberty.

At a further hearing on 29 ^th November, I made an interim declaration under s. 48 of the 2005 Act that on the evidence available to the court there was reason to believe that KK lacked capacity to make decisions about her place of residence and that it was in her best interests to continue to reside at STCC pending the final hearing or until further order. I further ordered that the application under s.21A be dismissed and that the local authority should continue to facilitate KK's home visits as agreed between the parties in accordance with a schedule appended to the order and provided for further directions.

On 2 ^nd December, Dr. TH filed an addendum capacity assessment confirming her opinion that KK lacked capacity to make decisions concerning her care needs and residence. On 22 ^nd December STCC granted a further urgent authorisation and again requested a standard authorisation from the supervisory body. On 30 ^th December, CC again refused a standard authorisation, the assessor again concluding that KK was not being deprived of her liberty. KK continued to reside at STCC but also continued to visit her home on occasions with the assistance of care staff.

At a further hearing on 29 ^th February, I renewed the interim declarations, ordered the local authority to continue facilitating KK's home visits daily for a period of three hours per visit unless varied by consent of the parties or in the event of an emergency and listed the matter for a contested hearing before me to determine (1) whether KK lacks capacity to make decisions regarding her care and residence and (2) whether she has been, and or is being, deprived of her liberty. I further directed that a subsequent hearing should be listed thereafter to determine what order, if any, should be made in respect of KK's future care and welfare.

The hearing

The written evidence put before me included the DOLS assessments completed in connection with the various authorisation processes undertaken by STCC and the local authority, including...