Judge: Bodey J
Citation:  EWCOP 13
Mr DM was a 69 year old man who had a long history of alcoholism and a longstanding diagnosis of Korsakoff’s syndrome. He neglected himself to a significant degree necessitating admission to hospital and was discharged to a ‘dry’ care home, apparently with his agreement. By the time of the proceedings he had been residing in a care home for 5 years without access to alcohol. For the previous 2 years he had been subject to 24 hour one-to-one supervision and was not allowed to access the community when he chose, after an incident when he purchased alcohol. DM had no relatives and was reported to have only one friend, another resident of the care home. DM wished to leave the care home and to consume alcohol and brought proceedings challenging his deprivation of liberty under s.21A MCA 2005.
Bodey J decided that it was not in DM’s best interests to move to another care home where the consumption of alcohol was permitted, despite this being DM’s expressed wish and his acceptance of the risk that it would shorten his life, noting that ‘everybody has to die sometime’. There was medical evidence that if DM resumed drinking he would become very unwell, as he had advanced liver disease, and had a life expectancy of about 7 years if not drinking and 3 years if drinking even a relatively modest amount. DM had no recollection of the events that had led to his admission to the care home.
The court’s decision was described as ‘finely balanced’ and the judge admitted that on first reading the papers his view was that DM should be allowed to move to a care home where he could consume alcohol. In the end, the judge concluded that DM should remain in the care home for a number of reasons:
The judge also concluded there was therefore no benefit in a trial period in an alternative home as this would just give DM a renewed taste for alcohol and it would be cruel to expect him to revert to a dry environment if the trial failed.
Bodey J concluded his judgment by noting that DM would not welcome the decision and saying that the transcript of his decision should be made available so that it could be considered in the event that DM brought a further s21A challenge because his continued residence at the care home was causing him real ongoing frustration and unhappiness.
This decision is an example of a relatively common scenario that arises in the Court of Protection in respect of people with long histories of alcohol misuse. It is perhaps unsurprising that the judge did not consider DM’s wishes determinative given the evidence of serious harm to his mental health, as well as his physical health, if he resumed drinking, meaning that the assertion that acceding to DM’s wishes would make him happy was too simplistic.
Whatever one’s views of this decision, comparison of the reasoning in this case with that of the Court of Appeal in the RB case demonstrates just how far we have come since 2014 as regards engagement with the principle that constructing a best interests decision starts with the individual.