Michelle Davies (by her litigation friend John Davies) v Wigan Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hayden |
| Judgment Date | 23 November 2020 |
| Neutral Citation | [2020] EWCOP 60 |
| Docket Number | Case No: 13677496 |
| Court | Court of Protection |
| Date | 23 November 2020 |
[2020] EWCOP 60
COURT OF PROTECTION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Hayden
VICE PRESIDENT OF THE COURT OF PROTECTION
Case No: 13677496
Ms Lorraine Cavanagh QC (instructed by Irwin Mitchell) for the Applicant
Ms Victoria Butler-Cole QC (instructed by Local Authority and NHS Wigan Clinical Commissioning Group) for the Respondent
Hearing dates: 23 rd November 2020
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
This judgment was delivered following a remote hearing conducted on a video conferencing platform and was attended by members of the public and the press.
This is a challenge, pursuant to s.21A of the Mental Capacity Act 2005 (MCA), to the standard authorisation which was put in place for Mrs Michelle Davies at the BL Lodge. Though Mrs Davies was residing there at the time the application was made, that is no longer the position (see below). The authorisation had been in place since the 29 th January 2020. The court has yet to send an order confirming who should be served with this application, which was issued on 5 th November 2020. The application was accompanied by 2 statements, one from Michelle Davies' husband, Dr. John Davies and the other from her son, Mr Kane Davies. Two further statements have subsequently been filed by Dr. Davies.
In the course of a pandemic, it is inevitable that the needs of the individual will sometimes be displaced by the even greater obligation to protect the wider public. The burden that falls upon individuals, in consequence of this tension, is not and cannot be distributed evenly. In what has now become known as lockdown 2, each of us is once again facing considerable restrictions, to various degrees, on our individual liberty. There are few circumstances where that burden falls more heavily, and with greater risk to mental health and wellbeing, than upon those who are accommodated in care homes. As this difficult period has progressed, so too has our realisation of its evolving impact.
For those in care homes, perhaps more than any other, deprivation of contact with loved ones has the potential to corrode quality of life to such a degree that, it may become difficult to evaluate where the balance of harm lies, as between a risk of exposure to an insidious and life threatening virus and compromising the most basic quality of life. Into this equation of competing interests must be factored the moral imperative to protect a group as well as an individual. These countervailing interests each require consideration. This cannot be regarded as an either-or situation. The fact that the interests of an individual and those of the wider group are difficult to reconcile, perhaps frequently irreconcilable, does not absolve the care home, or the state more generally, from engaging in the effort to do so. The strength of the obligation to protect the rights of the individual, particularly the vulnerable and mentally incapacitated, is not in any way diminished by the pandemic health crisis; it is, if anything, enhanced.
As has been emphasised in the course of submissions by Ms Cavanagh QC, on behalf of the applicant Mrs Michelle Davies, (acting by her litigation friend, her husband Dr. John Davies), and Ms Butler-Cole QC, acting on behalf of the respondent Local Authority and Clinical Commissioning Group, those in care homes should not be regarded as an homogenous group with identical needs. Their characters, personalities, individual needs, which are as various as the needs of the rest of us, all require to be considered. I have no doubt that those who work in care homes, who I have frequently heard in evidence over the last 9 months, are acutely aware of this and will regard this statement as trite and obvious. As I have had occasion to note in other cases, in the course of this challenging year, carers have so frequently taken on the role of substitute family. This has been, almost universally, met with fulsome and heartfelt gratitude by the families themselves. The carers' sensitivity, kindness, and simple humanity, has for many of the residents in care homes, rendered the unbearable endurable. The objective of any plans or policies devised in care homes should always be to harness the skills and strengths of the carers so as most effectively to promote the best interests of the individual resident. My emphasis here is on the individual.
Mrs Michelle Davies is 58 years of age. That age, I think, can properly be regarded as still quite young in 2020. In any event, it is certainly young by comparison with the average age in the care home population. Mrs Davies was 17 years of age when she met her husband John. They were married on 2 nd April 1983. It is a relationship of 40 years and manifestly a full and happy one. They have a son, Kane who is now 33 years of age and very close to both his parents. Mrs Davies, as has been outlined to me by Ms Cavanagh and Dr. Davies, has been a very public spirited individual, with a developed sense of public duty. Mrs Davies has been described as someone who would go out of her way to help other people. For years she has collected for Barnardo's and has been involved in fundraising for her son's school, alongside her work as a clerk at Children and Family Services, Wigan County Council. In that role, she provided invaluable support to enable children to have contact with parents that would not otherwise have been possible. Life was not all about hard work for Mrs Davies. She is a woman who plainly has known how to enjoy herself to the full. I am told that she has travelled to 87 different countries, during the course of her marriage, and perhaps even more remarkably she has managed to enjoy 22 separate cruises. She has a great interest in music and dance, and she enjoyed Latin, ballroom and salsa dancing with her husband. I hope that something of that enjoyment of music, at least, has remained.
Into this full and happy life, grounded in this successful marriage, came tragedy. On 14 th December 2018, Mrs Davies suddenly and, without any physical warning, suffered a significant subarachnoid haemorrhage, secondary to an aneurysm in her brain. A week later this was followed by a stroke. Magnetic Resonance Imaging (MRI) scans revealed extensive softening and diminishment of the brain parenchyma i.e. significant brain damage.
Mrs Davies had been perfectly healthy, she enjoyed her privacy but also had a large group of friends. The shock of what has happened continues to reverberate in this family and in her wider social circle. Mrs Davies is now able to feed herself, but she sometimes needs assistance when doing so, or, at least, supervision. Medications are managed by her carers and all manual handling of her is undertaken by 2 staff, due to her inability to mobilise independently. She was in hospital for 11 months. Every day Dr. Davies visited her, frequently with his son, sometimes with Mrs Davies' parents who are in their eighties.
At the conclusion of this period Mrs Davies moved to a specialist brain injury neurorehabilitation unit, the BL Lodge. The key objectives in the unit were to maximise her independence and to achieve the greatest possible ‘functionality in the various domains’ of the brain. Dr. John Davies spent at least 3 hours a day at his wife's side and sometimes as many as 6 hours. When at the unit, Dr. Davies spent time taking his wife outside, stimulating her senses, promoting in the most tender and affectionate way the wider objectives of the care plan. He would undertake passive movement of her limbs, supervise feeding and medication, talk to her constantly. They watched television together and Dr. Davies tried to engage her with the world around her. Two, often three times per week Kane would visit his mother, doing very much the same thing as his father. On Saturdays, Mrs Davies' parents would visit.
Ms Cavanagh told me, in the course of opening this case, that Mrs Davies had been a very popular lady before her stroke. The extent of that is clear from the fact that so many months on her friends still come very regularly to visit her. These are securely rooted longstanding friendships. Such was the commitment and consistency of the visits that Dr. Davies had to effectively draw up a schedule which co-ordinated visiting times and, as he has told me, permitted proper time for his wife to rest. All this must have been a great boost to the rehabilitation process.
The tragedy of the stroke was followed by further tragedy in March this year when the pandemic health crisis struck a largely unsuspecting world. It changed life beyond recognition for this couple. Dr. Davies had seen the storm clouds gathering and had gone out to acquire a ‘smart phone’ which was to become the couple's only channel of communication between 17 th March and 6 th July 2020.
This couple who had been so close since their teenage years fell back, like the rest of us, onto video conferencing platforms and WhatsApp. Manifestly, this was an acutely difficult time for both. More than that, it has been a period of almost unendurable pain. They managed between 17 th March and early April to arrange video contact by smartphone every single day. Carers had only to assist in ensuring the connection was made and Mrs Davies was able to manage after that. The couple was faced with a change of policy at the unit in April 2020, which sought, no doubt for practical and pragmatic reasons, to reduce calls to twice per week. Dr. Davies was gladiatorial on his...
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