PB v RB (by her litigation friend the Official Solicitor) (1st Respondent) London Borough of Haringey (2nd Respondent)

JurisdictionEngland & Wales
JudgeDistrict Judge Eldergill,DISTRICT JUDGE ELDERGILL
Judgment Date26 February 2016
Neutral Citation[2016] EWCOP 12
Date26 February 2016
Docket NumberCase No: COP12017112
CourtCourt of Protection

[2016] EWCOP 12

[2012] EWHC COP 0000

IN THE COURT OF PROTECTION

IN THE MATTER OF THE MENTAL CAPACITY ACT 2005

First Avenue House High Holborn, London, WC1A 9JA

IN THE COURT OF PROTECTION

IN THE MATTER OF THE MENTAL CAPACITY ACT 2005

Royal Courts of Justice Strand, London, WC2A 2LL

IN THE COURT OF PROTECTION

IN THE MATTER OF THE MENTAL CAPACITY ACT 2005 AND IN THE MATTER OF RB

IN THE COURT OF PROTECTION

IN THE MATTER OF THE MENTAL CAPACITY ACT 2005 AND IN THE MATTER OF RB

COURT OF PROTECTION

ON APPEAL

Before:

District Judge Eldergill

Before:

District Judge Eldergill

Before:

His Honour Judge Altman

Case No: COP12017112

Case No: COP12017112

Case No. 12017112

Case No. 12017112

Case no. 1196 0903

Between:
PB
Applicant
and
RB (by her litigation friend the Official Solicitor)
1st Respondent
London Borough of Haringey
2nd Respondent
Between:
PB
Applicant
and
RB (by her litigation friend the Official Solicitor)
1st Respondent

And

A London Borough
2nd Respondent

and

CL
3rd Respondent

and

DB
4th Respondent

and

LA
5th Respondent
Between:
PB
Applicant
and
RB (by her litigation friend, the Official Solicitor)
First Respondent

And

A London Borough
Second Respondent

and

CL
Third Respondent

and

DB
Fourth Respondent

and

LA
Fifth Respondent
Between:
PB
Applicant
and
RB (by her litigation friend, the Official Solicitor)
First Respondent

and

A London Borough
Second Respondent

and

CL
Third Respondent

and

DB
Fourth Respondent

and

LA
Fifth Respondent
Between:
PB
Appellant
and
RB (By Her Litigation Friend, the Official Solicitor)
First Respondent

and

A London Borough
Second Respondent

and

CL
Third Respondent

and

DB
Fourth Respondent

and

La
Fifth Respondent

Mr Azeem Suterwalla (instructed by Campbell-Taylor Solicitors) for the Applicant

Mr Parishil Patel (instructed by Irwin Mitchell LLP) for the 1 st Respondent

Ms Sarah Okafor for the 2 nd Respondent

Mr Stephen Simblet (instructed by Campbell-Taylor) for the Applicant

Mr Chris Buttler (instructed by Irwin Mitchell LLP) for the 1 st Respondent

Appellant Stephen Simblet (instructed by Campbell-Taylor Solicitors)

First Respondent Chris Buttler (instructed by Irwin Mitchell Solicitors)

Second Respondent Kuljit Bhogal (instructed by A London Borough's Legal Services Department)

Hearing dates: 8–9 December 2015

DISTRICT JUDGE ELDERGILL

§1 — INTRODUCTION

1

This decision follows a final hearing held on 8–9 December 2015.

2

The case concerns the welfare of RB, a 74 year old woman who has dementia. At the present time she lives in a residential care home referred to as E Care Home.

3

RB has one son (PB) and three daughters (CL, DB and LA).

4

The primary issue is whether it is in RB's best interests to remain at E Care Home or to return to her home at R Close.

5

A third possibility, that she move to extra care supported housing at R Court, is no longer an option because it is unlikely to have a vacancy for some considerable time. R Court could potentially have provided RB with a two-bedroom flat with 24 hour support.

6

PB specifically seeks orders that:

(a) RB is returned home with a robust package of care;

(b) In the alternative, RB is placed at R Court with an appropriate package of care; and

(c) Certain restrictions on him are lifted or at least varied to allow him to visit his mother between 6pm and 12am on weekdays.

§2 — STRUCTURE OF THIS JUDGMENT

7

This decision is structured under the following headings:

§3 — THE PARTIES TO THESE PROCEEDINGS

§1 —

Introduction

Page 2

§2 —

Structure of this Judgment

Page 2

§3 —

The Parties to these Proceedings

Page 3

§4 —

Background and Chronology

Page 3

§5 —

RB's Mental Capacity

Page 6

§6 —

The Relevant Law

Page 7

§7 —

Documentary Evidence

Page 12

§8 —

Oral Evidence

Page 13

§9 —

Submissions

Page 18

§10 —

Analysis of RB's Best Interests

Page 24

§11 —

Summary and Concluding Remarks

Page 38

8

The parties to these proceedings are:

PB

Applicant

Son of the person concerned

RB

First Respondent

The person concerned ("P"), by her litigation friend, the Official Solicitor

London Borough of Haringey

Second Respondent

The relevant local authority

9

In previous proceedings concerning RB, her daughters CL, DB and LA were also parties to the proceedings, being the third to fifth respondents respectively. They are no longer parties but continue to take an active interest in their mother's welfare.

§4 — BACKGROUND AND CHRONOLOGY

10

The court's involvement in decision-making on behalf of RB has a long history and Mr Suterwalla's skeleton argument helpfully included a chronology:

2003

RB moves to R Close, a one-bedroom sheltered council flat.

2009

RB is diagnosed with Alzheimer's disease. She begins to receive a care package which involves two carer visits a day or one visit plus a lunchtime visit to a local day centre.

28.02.11

PB makes an application to the Court of Protection concerning RB's finances and welfare.

11.05.11

PB is moved to B Lodge, ostensibly for a short stay respite.

23.06.11

A best interests assessment is conducted by social worker JR who concludes that RB wants to return home and that it is possible to achieve this with the right care package.

23.06.11

Dr TS (RB's consultant psychiatrist) assesses that RB lacks the capacity to make decisions about her care needs and financial management.

22.07.11

The London Borough of Haringey ('LBH') arranged for RB to sign a tenancy agreement for an extra care sheltered housing scheme flat at YY with 24-hour support.

15.12.11

Following a contested hearing, by interim order I authorised RB's return home as being in her best interests pending the final resolution of the case.

09.01.12

RB returned home.

16.02.12

A jointly-instructed Independent Social Worker Stewart Sinclair concluded that it was in RB's best interests for her to remain living at home with a care package.

08.05.12

Mr Sinclair's Addendum Independent Social Work (ISW) report noted that RB was settled at home and progressing well; it continued to be in her best interests to remain at home.

10–12.09.12

A fact-finding hearing was heard by me at which the local authority sought to prove 13 alleged facts concerning the conduct of RB's son, PB.

26.09.12

I handed down my findings of fact which were published on Bailii: PB v RB & Ors [2012] EWHC 4159 (COP) (2012) MHLO 174. For convenience, a copy is appended to this judgment, as Annex A. Some of the alleged facts were found to have been proved, others not.

8–9 and 11.10.12

A final hearing took place in order to hear the parties' oral evidence concerning the substantive issues of RB's future place of residence, care, treatment and contact with family members.

Jan 2013

The court delivered its judgment, a copy of which is appended to this judgment, as Annex B.

RB was found 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

R Close and to receive a care plan in accordance with the court's order.

12.11.13

My judgment was the subject of an appeal by PB. The appeal was heard by HHJ Altman, who dismissed the appeal. His judgment was reported and may be found at [2013] EWCOP B41. For convenience, it is reproduced as Annex C.

08.07.14

Following a hearing, the court ordered that contact between PB and RB be limited for up to 2 hours each day between Monday to Friday under supervised conditions with a community contact facility.

04.11.14

Following a hearing, the court ordered that it was in RB's interests for PB to attend R Close for up to 90 minutes each day to provide her with a meal.

29.11.14

RB was admitted to hospital.

24.12.14

RB was discharged from hospital to E Care Home as a step-down placement.

09.02.15

The local authority granted a standard authorisation for RB to be deprived of her liberty at E Care Home.

The local authority immediately applied to court, pursuant to sections 21A and 16 of the MCA 2005, for a review of RB's standard authorisation.

01/02.06.15 RB

visited R Close and the possible alternative placement at R Court.

16.06.15

Ms Rychlicka, acting on behalf of the Official Solicitor, attended RB at E Care Home.

18.06.15

A roundtable meeting was held. The local authority's position was that RB should remain at E Care Home.

30.06.15

The court set the matter down for a final hearing.

07.09.15

The final hearing was adjourned because the jointly-instructed ISW reports were unsatisfactory. Directions were given for a new ISW, Mrs S, to be instructed to prepare a report.

16.11.15

The (second) ISW, Mrs S, prepared her report.

8–9.12.15

The final hearing in these proceedings took place.

11

This chronology greatly simplifies the very difficult history in the case which is fully set out in Annex B to this judgment.

12

The critical document historically is my judgment of January 2013 and the order at the end of it. The underlying purpose of that order was recited within it:

(1) On the evidence, the court finds that:

a) Mrs B is still able to articulate a clear wish to remain in her own home for as long as possible.

b) Although RB lacks capacity to decide where to live, she is very near the boundary in this respect. Her strong and consistent wish to live at home is to be given very considerable weight.

c) It remains in her best interests to continue to live at R Close and for care and family contact arrangements to be based around a life at home.

d) Because her treatment and care needs are relatively simple, ordinarily it would not be difficult for her to live in her own home...

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