Cheshire and Wirral Partnership NHS Foundation Trust v JMC (by his Accredited Legal Representative, Mrs Jolanta Edwards)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hayden |
| Judgment Date | 20 April 2023 |
| Neutral Citation | [2023] EWCOP 14 |
| Docket Number | Case No: 13883642 |
| Court | Court of Protection |
[2023] EWCOP 14
Mr Justice Hayden
Case No: 13883642
COURT OF PROTECTION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Adam Fullwood (instructed by The Trust) for the Appellant
Ms Eliza Sharron (instructed by Peter Edwards Law) for the First Respondent
Mr Parishil Patel KC and Ms Rebecca Clark (instructed by Blake Morgan LLP) for the Second Respondent
Hearing dates: 16 th February 2023
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mr Justice Hayden
The judge has given leave for this version of the judgment to be published.
This is an application for permission to appeal a case management decision made by District Judge Hennessy on the 26 th October 2022. The order in focus records: “ A report is required pursuant to section 49 of the Mental Capacity Act 2005”. A further recording states “the report must be prepared by a person nominated by Cheshire Wirral Partnership NHS Foundation Trust (‘the Trust’) and considered by the Trust to have the appropriate expertise / knowledge to provide the report”. Also included within the Court's recording is an extended account of what is considered to be the “context of the report”. In the circumstances and in order properly to evaluate the criteria upon which such a report can be ordered, it is necessary to set these paragraphs out in full:
“Context of report
4. The court is considering an application regarding the care and residence arrangements for JMC, who deprived of his liberty under a standard authorisation at County Homes Care Home and wishes to be discharged. JMCH has a diagnosis of alcohol related brain damage.
5. There were previous section 21A proceedings, in the course of which a report was obtained from Professor Wilson, from the Trust, dated 30 August 2018 as detailed above. Professor Wilson was involved in assessing JMC's capacity, but also provided ongoing assessment and input in respect of the appropriate treatment pathway for JMC, in light of his diagnosis of alcohol related brain damage. The context of the input from the Trust was explained by Professor Wilson at E1 of his report as follows:
'The programme of neurocognitive management that has been devised and recommended by the Royal College of Psychiatrists (CR185) is designed to augment this natural recovery. The principles of management involve facilitating the individual's abilities to care for themselves in a graded fashion over the recovery period. This is underpinned by a programme of social integration, education and diminishing levels of support as the individual improves. Support is subsequently maintained at optimum levels dependent on the degree of recovery.
6. The conclusion of Professor Wilson's initial report was as follows:
‘On-going attempts to encourage and facilitate increased autonomy are most likely to enhance his quality of life and optimise any small chance of cognitive improvement. This is best encouraged in an establishment that is specifically designed to cater for active, relatively physically well people with some experience in working with mid-aged adults with cognitive deficits. 'JMC is now resident in a nursing home; principally designed to cater for older people suffering from dementia and other health needs. Most of the residents are frail, likely to have communication difficulties and have little in common with JMC. Necessarily, the nursing home care is principally focussed on the care of older, frail residents. The optimum care for a relatively fit man with ARBD involves a different care focus. A personalised care plan, close familiarisation with staff and a comprehensive programme of activity and stimulation designed for patients with similar conditions is recommended. Attempts can be made to introduce care of this nature into larger generalised nursing homes. The establishment of one-to-one care package in which outside agencies are paid to provide the patient with trips out of the nursing home have been employed with varying success. This would be co-ordinated with ongoing family support. I expect in this case of JMC this is likely to have limited effect (due to poor compliance by JMC) in his current situation. I recommend to the Court consider placement in a specialist nursing home: Evergreen Lodge Nursing Home on the Wirral has experience of working with long stat ARBD patients and represents one of the few resources. I am always aware that other long-stay residential facilities specialising in ARBD (which may be even more appropriate) are expected to open in the foreseeable future on the Wirral. Alternatively, in the absence of any behavioural disturbance, a smaller residential home setting (on the Wirral) may be considered. It should be alcohol free and cater for residents subjected to Deprivation of Liberty Orders. Attempts should be made to locate an institution with residents of similar age bracket and of relatively good physical health. In such a situation, an enhanced care package (additional 1:1 care of up to six hours a week) may be evaluated with a view to promote his quality of life’.
7. Efforts were made to identify more suitable provision, however at the time the proceedings were concluded it had not been possible to identify such a placement. A further report from Professor Wilson had been obtained dated 26 June 2019, which concluded:
'It is advised that the current nursing home does not provide JMC with an optimal quality of life as it is primarily designed to cater for people suffering from progressive dementias. However, this is somewhat mitigated by regular family visits and support from his wife […] In view of the potential room for improvement in JMC's quality of life, we recommend that our team will continue to visit JMC for a period of six months with view to continue to build his confidence and facilitate his socialisation through encouraging visits outside the Nursing Home environment. This will involve encouraging the family engagement and visits from our own team. At the end of this period we will be able to give the Court a more definitive long term social prognosis. (my emphasis)
The order continues, still under the heading of “AND UPON it being recorded that”:
‘On balance, we advise the court that the risks to the patient's quality of life, contact with support from his family and JMC's mental health, currently outweigh the possible advantages in moving the patient to currently available alternative accommodation which is substantially further away (Formby, Merseyside). We will continue to review his progress with a view to trying to eventually find a more appropriate residence in the Wirral Area’.
8. On the basis of the above, the parties agreed to conclude the section 21A proceedings, on the basis that the qualifying requirement would be met, subject to further review following additional input and recommendations from the Trust. The final order recorded that:
'Professor K Wilson's team intends to continue to work with JMC over the next six months and at the end of this period will be able to provide a more definitive long-term social prognosis (“the further report”).
9. Permission was granted for the ‘further report’ to be disclosed to JMC's RPR and litigation friend, however no report was subsequently produced. It would appear that further follow up visits did take place following the conclusion of the proceedings, however no substantive recommendations were made and the ‘further report’ envisaged by the order of 25 July 2019, was not produced. JMC was discharged by the Trust on 01 April 2020 (my emphasis).
10. Since the last involvement of the Trust, there have been concerns raised by social care professionals that his presentation has markedly deteriorated. JMC's contact with his family and access to the community was substantially curtailed over the course of the pandemic, and there do not appear to have been any efforts to implement the individualised sort of care plan recommended by Professor Wilson. There have been concerns raised by social care professionals and the Best Interests Assessor that JMC's willingness to accept personal care has declined substantially, he refuses to shower or wash at the placement, and concerns have been raised by social care professionals that there has been an overall deterioration in his mood and willingness to engage in activities that used to be of interest. Dr Feroze, mental health assessor, also raised concerns as follows:-
‘[JMC] is likely to continue to display issues around poor personal hygiene and resistance to care. He does come across as somewhat blunted and irritable in mood which appears to be a long-standing issue but he is resistant to a change of antidepressant. Nevertheless, it would be helpful if the care home staff continue to encourage him to consider a medication change and arrange a review with his GP.’
And in the Form 4 Mental Health and Eligibility Assessments completed on 15 August 2022 stated:-
‘In my opinion, the person's mental health and wellbeing is likely to be affected by being deprived of liberty in the following ways: JMC is presenting with significant levels of self-neglect. In my opinion there is a need for a review of his care plan to see if anything can be put in place to encourage his compliance with care interventions. It is unlikely that deprivation will have a long-term negative impact on his mental health.’
11. Recently a trial of 1:1 support took place to support JMC to access the community. JMC engaged in the first 3 of 8 sessions well,...
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