Cornwall Council v NP (by his litigation friend, the Official Solicitor)
| Jurisdiction | England & Wales |
| Judge | Taylor |
| Judgment Date | 09 September 2020 |
| Neutral Citation | [2020] EWCOP 44 |
| Docket Number | Case No. 13590655 |
| Date | 09 September 2020 |
| Court | Court of Protection |
[2020] EWCOP 44
IN THE COURT OF PROTECTION
Truro Combined Court Centre
Edward Street, Truro, Cornwall
TR1 2BP
IN THE MATTER OF SECTION 21A OF THE MENTAL CAPACITY ACT 2005
AND IN THE MATTER OF NP
DISTRICT JUDGE Ian Taylor
Case No. 13590655
and
Ms Zoe Gannon (instructed by Cornwall Council) for the Applicant
Mr Oliver Lewis (instructed by Abbotstone Law) for the 1 st Respondent
Ms Emma Sutton (instructed by Emma Stacey Legal) for the 2 nd Respondent
Hearing date 9 September 2020
THE PARTIES
The Applicant is Cornwall Council, the first respondent is NP by his litigation friend the Official Solicitor and the second respondent is BKP the wife of the first respondent.
THE FACTS OF THE CASE
Mr NP is a 69-year-old man. He previously lived with his wife of 35 years, Mrs BKP at their matrimonial home. There is a wealth of information provided by BKP in her various statements about NP and their life together which has always been based in the same area of Cornwall where they have both been actively involved in their community for their whole lives.
NP has diagnoses of neurological sequelae of herpesviral encephalitis and personality change due to known psychological condition. This followed what must have been a hugely distressing incident for BKP on 2 nd December 2018 when NP collapsed at home and had to be hospitalised. On 4 th February 2019 NP was transferred to the X neuro-rehabilitation unit where he currently resides.
There is no dispute that NP lacks the capacity to conduct proceedings and to make decisions regarding his residence and care needs, and the court has already made declarations pursuant to s.15 MCA.
In about September 2019 BKP was told by the X neuro-rehabilitation unit that it was considered that NP's recovery had ‘plateaued’ and was not going to be receiving further physiotherapy or occupational therapy. He was therefore medically fit for discharge. The issue arose as to where NP should be discharged, the Council believing his needs would be best met in a residential care home and BKP wishing him to return home with a package of care.
Cornwall Council has filed a needs assessment dated 28 th April 2020 and has updated that recently, however NP's care needs have not materially changed. BKP broadly agrees with its contents.
NP's care needs include the following:
a. NP has mobility difficulties that vary on a day-to-day basis. Transfers generally require 2 carers;
b. NP can usually manage to walk 5 meters with 1 carer, sometimes he becomes tired and a second carer needs to be ready with a wheelchair, and sometimes he can walk further;
c. As a result of his cognitive impairment and his mobility difficulties, NP requires assistance with his personal care, including washing, dressing and undressing, meal prep. If large food items are cut up, he can generally eat with a fork and lift a cup to drink;
d. NP needs assistance to manage his toileting needs;
e. NP sometimes wakes up during the night and at times his behaviour whilst he has been in hospital can become “ physical”;
f. NP's moods are variable and he can be unpredictable;
NP's current wishes and feelings are to return home. If he had capacity, it is likely that he would want to return home. His previously expressed values demonstrated by him living at home and being married to his wife for 35 years, in my view amply demonstrate that he would want to return home.
THE PROCEEDINGS
On 8 th April 2020 Cornwall Council made the application which was subsequently reconstituted as a s.21A MCA challenge, given that NP is deprived of his liberty by way of a standard authorisation under Schedule A1 to the MCA. The authorisation was made by the applicant on 1 st April 2020 and is due to expire on 29 th September 2020.
The question for the court to determine today is where is it in NP's best interests to live when he is discharged from hospital. There are only two options being either a return to the marital home or a transfer to the Z Nursing Home.
The social worker has written six statements, the last dated 4 th September 2020, setting out the Local Authority's position on NP's needs and how in its view those needs can be met. The social worker's view was that it was not in NP's best interests to return home, because in the event of a breakdown, it would be “easier for him to adjust rather than returning home first and then needing admission to [Z Care Home] or another placement on a temporary basis”. His concerns on sustainability focused on “NP's behavioural volatility which can lead to his physical aggression on an unpredictable basis”, and he was “concerned for the welfare of BKP in having to manage such likely incidents as NP's primary carer and for the other carers who will be providing care”. In a previous statement he set out some recent incidents where NP had been aggressive on the ward.
BKP's statement dated 7 th September 2020 responded to these concerns. She explained how she was able and willing to meet NP's needs at home. She and NP cared for NP's mother, who had Parkinson's disease and dementia, at their home for ten years. She explained that before the Covid-19 lockdown, she used to visit her husband in the X rehabilitation unit every day, but since lockdown she has been shielding and the ward has been unable to accommodate visitors. NP and BKP have therefore not seen each other for six months. BKP explained the very close relationship that she has enjoyed with her husband over many years. In setting out her view that it would be in NP's best interests to return home, she said that the time at home would: “Give [NP] and I time together, some of which would be private, which I believe would be overall good for both our mental health” and “enable us to have privacy of our relationship, a hug, a kiss goodnight and experience most of the lucid moments he has together.”
The primary submissions made on behalf of BKP were that:
(1) The identified risks can clearly be appropriately managed on an interim basis, and a sensible risk appraisal points very obviously to the court directing a home trial;
(2) The period of the trial can be appropriately utilised to obtain/ file further evidence to more accurately determine where NP should reside and what care he should receive on a longer term basis;
(3) The court must avoid the temptation to put the physical health and safety of NP before everything else and ask itself, what good is it making NP safer if it merely makes him miserable?
(4) It would be wrong not to try a trial at home, even with a degree of pessimism, if a placement is available with a package of support;
(5) The factor of magnetic importance is that if a trial is not attempted now, the reality is that NP will never again have the opportunity to live in his own home with BKP.
On behalf of NP, the position of the Official Solicitor was that a trial at home was in NP's best interests. No option being risk-free, if the return home fails, it is likely to do so quickly, and the strength of the relationship between NP and his wife, coupled with her ability and willingness to provide care, supported by a care package paid by the Local Authority, means that the return home is feasible and that there is both a plan in place that prevents known risks from arising, as well as the contingency of a vacancy at the Z Care Home being kept open for three weeks. The Official Solicitor took the view that a trial return home was the less restrictive of the two options, the most proportionate and the option that best afforded NP his rights under article 8 of the European Convention on Human Rights and article 19 of the UN Convention on the Rights of Persons with Disabilities (see below).
The hearing today was listed as a one-day hearing to determine best interests. It was planned that the court would hear live evidence from the matron of the ward in which NP is currently living, NP's social worker and BKP. At the start of the hearing, counsel for the Local Authority informed the court that the Local Authority had modified its position, whereby having reflected on the recent evidence on NP's night-time needs, and the evidence received from BKP the day before the hearing, it no longer opposed a trial return home, but had significant reservations about the sustainability and risks involved in NP living and receiving care at home. Given the Local Authority's reservations about the risks of a trial at home, and as the ultimate decision in a case such as this fell ‘ on the shoulders of the court and not on the shoulders of the parties’ ( Re M (Deprivation of Liberty) [2013] EWHC 3456 (COP) [§41] Counsel for the Local Authority requested the court determine the matter by way of a short judgment.
THE LAW
The powers of the court in relation to Schedule A1 to the MCA are set out in section 21A(2) which give the court jurisdiction for the purposes of Article 5(4) of the European Convention on Human Rights (“ECHR”) to review the authorisation of a person's detention and provides that:
‘Where a standard authorisation has been given, the court may determine any question relating to any of the following matters –
(a) whether the relevant person meets one or more of the qualifying requirements
(b) the period during which the standard authorisation is to be in force
(c) the purpose for which the standard authorisation is given
(d) the conditions subject to which the standard authorisation is given
Thereafter section 21A(3) provides that:
‘If the court determines any question under subsection (2), the court may make an order –
(a) varying or terminating the standard authorisation, or
(b) directing the supervisory body to vary or terminate the standard authorisation’
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Re AC and GC (Capacity: Hoarding: Best Interests)
...the family rather than in an institution, even if there are shortcomings in terms of care which an institution could address.” In Re NP [2020] EWCOP 44, the court agreed that a trial period in the marital home would be the best option, concluding that there was not such a level of risk in t......