Cornwall Council v NP and BKP
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:
- 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).