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Judge: Hayden J
Citation: [2019] EWCOP 5
Summary
This unusual appeal against dismissal of a s.21A application clarifies the (very limited) circumstances under which it could ever been appropriate to dismiss such applications on a summary basis.
The underlying case concerned a 91 year old woman CB who did not like living in a care home and wished to return to her own home with a package of care. This was an arrangement that had been tried previously, including by way of 24-hour live-in care, but which had broken down. A s.49 report was prepared during the proceedings which concluded that CB lacked capacity by reason of dementia to make the relevant decisions about where she lived and what care she received. The consultant psychiatrist also opined, not having been asked nor having been provided with all the relevant evidence, that CB required 24 hour care which was likely to be best provided in a care home.
HHJ Backhouse had previously made typical directions requiring the local authority to file evidence about the likely package of care at home that could be put in place – CB having assets in the region of £2.5million and thus being able to afford substantially more care than the standard 4 daily visits usually offered by a statutory body. At a round table meeting before the hearing in respect of which the appeal was brought, the local authority and CB’s representatives agreed that further investigations about the potential home care package would be made and a proper best interests analysis carried out by the local authority. An application was made to vacate the hearing so that these agreed steps could be taken. The court refused to adjourn the hearing, the judge wanting to hear from CB’s nephew (who had not been party to the agreed plan) and raising a query about some of the further evidence that was to be obtained.
At the hearing, HHJ Backhouse heard directly from CM, who described the serious problems that had arisen the last time care at home had been attempted. Despite not having indicated to the parties that the judge was considering summary disposal, during an ex tempore judgment, HHJ Backhouse decided that the application would be dismissed, saying:
The Official Solicitor appealed on behalf of CB. The local authority took a neutral stance. Hayden J allowed the appeal, deciding that:
Comment
As the then-President, Sir Nicholas Wall, had observed in 2011 upon being invited summarily to dispose of a s.21 application that appeared on its face to be hopeless:
For those who had forgotten this key message, this new case is a very helpful illustration of the seriousness with which Article 5 rights must be considered by the Court of Protection. It is common for P to seek less restrictive care arrangements or a return home even though the professional advice does not support P’s wishes. Even where there have been failed attempts in the past, it does not follow automatically that further attempts should not be made, and it is not appropriate for parties or the court to deal with matters on a summary basis without full and proper investigation and consideration of the options.
All this should, however, be carried out in a timescale that is proportionate – where P objectd to the arrangements for his or her care or treatment, it cannot be right that 14 months later the court was still not in a position to determine matters. The reasons for the delay in this case are not apparent from the report, but was no doubt comprised of one or more of the following familiar features:
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