Judge: Hedley J.
Citation:  EWHC 2778
Summary: GM was a 79 year-old man with mixed vascular dementia provoked by alcohol damage who lived with his partner, FP, and her son. Having been detained for assessment under section 2 of the Mental Health Act 1983, FP used her nearest relative powers to trigger his discharge. Before the necessary 72 hours written notice had expired, GM was discharged from section and made subject to an urgent, followed by a standard, DOLS authorisation which FP then challenged. Whilst expert evidence was being obtained, the authorisation expired and was replaced by a Court Order. By the time of the hearing, GM was ready for discharge but lacked residential capacity. So the central issue before the Court was whether he should return home on a trial basis or whether he should be, in effect permanently, admitted into EMI care.
In an extempore judgment, the starting point for Mr Justice Hedley was that GM should not be deprived of the opportunity to return home unless it was so contrary to his interests that the Court must not even seriously contemplate it (paragraph 25). This reflected GM’s right not to be deprived of family life unless such deprivation could be justified under Article 8(2) of the ECHR. His health and care needs, as well as his need for physical care and consistency were amongst the factors relevant to the best interests balancing exercise but:
“21. … There is, of course, more to human life than that, there is fundamentally the emotional dimension, the importance of relationships, the importance of a sense of belonging in the place in which you are living, and the sense of belonging to a specific group in respect of which you are a particularly important person.”
On the one hand, EMI care would attend to all his physical and medical needs. But GM would be one of perhaps many residents, possibly cared for by transitory staff, where the emotional component could not begin to be met in the same way as in a family setting. On the other hand, a family placement would result in a lesser quality of physical care because of the enormous caring demands, with the attendant risk of breakdown and conflict. However:
“24. … such a placement contains a formidable emotional component which GM for over 20 years has clearly regarded as being of profound importance to him. These are the single most important relationships in his life. This is the place where he belongs, and where he matters in a sense that he could never matter in an institutional care setting.”
In the context of trying to compare apples with pears, the Court had to strike the best interests balance “with as broad a view of those interests as it is possible to do”. GM was thought to have one or two years of life left to him and, where possible, people should be allowed “to spend their end time within the family rather than in an institution, even if there are shortcomings in terms of care which an institution could address” (paragraph 34). Moreover:
“33. If there is a placement in a care home, we will probably never know whether that was right or not. If there is a placement at home, we most certainly will discover whether it was right or wrong, and I specifically acknowledge that the court may be shown to have been wrong in the decision that it takes.”
In all the circumstances, the Court order was discontinued and GM was returned home on a conditional basis.
Comment: This judgment represents a master class in best interests decision-making. Determining the residence issue through an Article 8 lens ensured that the significant emotional component of the best interests analysis was not overshadowed by its physical counterpart. Indeed, the need to recognise the strength of family ties is a consistent judicial message being relayed by the Court of Protection. Notable, also, is the fact that the Court did not have any regard for the welfare of FP or her son, except insofar as it impacted upon GM’s welfare. This was because they had capacity to make (un)wise decisions in relation to the risks GM presented upon his return home.
The proceedings themselves demonstrate what can be achieved: expert evidence was obtained and a determination of the Court was reached within 8 weeks of the initial application having been filed. A life-changing decision had to be made on the basis of the best available evidence; the same task routinely expected of DOLS best interests assessors. His Lordship recognised the pressure upon the Court system and observed:
“12. … [I]t seems to me that it is absolutely essential that the Court of Protection establishes a practice that these interim cases must be dealt with quickly, and having regard to the demands on the system generally, proportionately, that is to say almost certainly without detailed oral evidence…”
The conditional nature of the Order also illustrates one of the many advantages of using the judicial process, particularly where there has been a history of non-engagement with social care services. In this case, GM’s return home was conditional upon his family accepting four one-hour calls per day and regular reviews, with FP also being expected to seek help promptly if necessary, comply with medical advice, and recognise that any failure to co-operate may result in the placement ending (paragraph 31).
A further point of interest, albeit one that did not fall for determination on the facts of this particular case (as the Court did not need to consider the legality of the steps taken in this regard7) is the tension between para 1.14 of the DOLS Code of Practice and A County Council v MB & Ors  EWHC 2508 (COP). The former says:
“Deprivation of liberty should not be extended due to delays in moving people between care or treatment settings, for example when somebody awaits discharge after completing a period of hospital treatment.”
In the latter, Mr Justice Charles stated at paragraph 96:
“Further, in my view, like the court, the best interests assessors should be considering available alternatives and thus solutions that are, or might in practice become or be made available. This will involve a consideration of the impact, difficulties and timings involved in a move and/or a change by reference to the actual alternatives available if P can no longer be lawfully deprived of his liberty at his existing placement …”
This tension will no doubt fall for further consideration in an appropriate case.