Cornwall Council v NP and BKP

Judge: DJ Ian Taylor

Citation: [2020] EWCOP 44

Summary

These reconstituted s.21A MCA proceedings concerned a 69-year-old man who, married for 35 years, collapsed in the marital home and was hospitalised with diagnoses of neurological sequelae of herpesviral encephalitis and personality change. With incapacity not in dispute, the issue was whether it was in his best interests to be discharged a neuro-rehabilitation unit to a care home or the family home with a care package. He wanted to go home and, if he had capacity, it was likely that he would decide to do so.

At the hearing, the local authority no longer opposed a trial return home but had significant reservations about its sustainability and risks involved. NP’s behavioural volatility could lead to unpredictable physical aggression and there were concerns for his wife as primary carer. But she was able and willing to meet his needs. Due to the pandemic, she had not been able to see him for six months. She said: “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.”

In reaching its best interests decision, the court took account of Article 19 CRPD, which provides the right to live in the community with choices equal to others. Consideration was also given to General Comment No.5 of the United Nation’s CRPD Committee on institutions. Unsurprisingly, the court ordered that it was in NP’s best interests to return home for a trial period of 3 weeks, with the care home bed kept open as a contingency.

Comment

This decision is of interest in two particular respects. First, although arguments are often made on Article 19 CRPD, rarely do they then feature in a judgment. Secondly, on the nature of s.21A MCA proceedings, the judge rightly states:

17. Once an application is made under section 21A, the court’s powers are not confined simply to determining the question of whether P meets one or more of the qualifying requirements and the court has the power to make declarations under section 15 as to whether P lacks capacity to make any decision, and once such a declaration is made, the court has wide powers under section 16 to make decisions on P’s behalf concerning his personal welfare or property and affairs (CC v KK [2012] EWHC 2136 (COP), Baker J at para 16, PH v A Local Authority [2011] EWHC 1704 (Fam), Baker J at para 15).

This can be contrasted with para 38 of the DP v Hillingdon [2020] EWCOP 45 decision (discussed in the Practice and Procedure section) which refers to the “discrete scope and ambit of a Section 21A application.” Section 21A MCA provides that the court “may” determine any question relating to the four matters there referred to. As described by Baker J (as he then was), we suggest the s.21A power to consider those questions are additional to, not discrete from, the court’s general jurisdiction under MCA ss.15-16. In other words, the court is not precluded in a s.21A application from considering issues arising beyond the scope of the four matters identified in s.21A. To do otherwise would result in P losing non-means tested legal aid and require separate applications to be made for non-s.21A matters which would offend the overriding objective and result in litigious compartmentalisation.

Best interests - Residence, Article 5 ECHR - DOLS authorisations, Article 8 ECHR - Residence, Article 5 ECHR, Article 8 ECHR, Best interests 09th September 2020