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Judge: Poole J
Citation: [2021] EWCOP 60
Summary
In this case, Poole J was concerned with – in effect – what was less bad: allowing a woman with dementia to remain at home in the care of a son about whom there were significant concerns, or authorising steps to remove her, even if temporarily, to enable assessment of her health and wellbeing. The case concerned a 76 year old woman, Mrs A, living in her own home. She was a widow with four living sons, one of whom, B, lived with her.
When the local authority with responsibility for her initially approached the Court of Protection, contending that it was in her best interests to be transferred to a residential care home, it was initially rebuffed, it appears in large part on the basis of her consistent wish to remain at home, the court instead approving B’s proposal that he should be her primary carer at home, and assuring the court that he would seek professional support as needed. This position held for several months. However, consideration of whether Mrs A should be vaccinated against COVID-19 triggered a significant change in B’s approach to engagement with carers, professionals and the court. He unilaterally and immediately cancelled all care and support for her within the home and he stopped his mother visiting the day centre. He stopped visitors coming into the house. He had become increasingly hostile to visits from social workers such that no professional was permitted by him to cross the threshold of Mrs A’s home for at least a month. He had become abusive and agitated when social workers attempted to visit Mrs A, shouting at them from an upstairs window, threatening to call the police, and ordering them to leave. B also refused to meet with social workers outside the house. B’s decisions also made it impossible for other members of the family to visit Mrs A at home.
The local authority’s concerns were also heightened by evidence (not previously known to the court) showing that B had a long history of criminal activity including multiple convictions related to cannabis, including supply. He had multiple convictions for assault. Most seriously, he had received a ten year sentence of imprisonment in late 1994 for an offence of causing grievous bodily harm with intent. His most recent offence was for battery in 2010. In light of this, and its escalating concerns as to Mrs A’s welfare, it came to court to seek orders bringing about her transfer to a care home – which was not at that point immediately available but would be so within a matter of weeks.
When the matter first came before Poole J it did so without notice to B, as he explained at paragraph 21:
The reason for applying without notice was the perceived danger that he would react to notice by putting A at risk of harm. That is not an unreasonable supposition given his recent behaviour, but the court should only proceed in exceptional circumstances to make orders of the kind sought without notice to those affected. Given B’s history and conduct, given his stated rejection of the authority and his frank disengagement from the court process, it was my judgment on 29 October 2021 that it was likely that he would take steps to frustrate the order of the court if notice were given to him. Giving notice to B would increase the risk of harm to A. Balancing his Art 6 rights with his, and A’s, Art 8 rights, the risk of B acting in a way that would be harmful to A if notice were given, and the risk that he would take action to frustrate the court’s orders, I was satisfied the exceptional course of proceeding without notice to B was justified.
At that point, however, Poole J was not satisfied that the matters had yet reached the point where immediate intervention, with the authorisation of restraint if necessary, was imperative. As an intermediate step, he made orders in Mrs A’s best interests that B should allow a health and welfare check to be conducted at his mother’s home for up to one hour on reasonable notice without B present in the same room, and that he was prohibited from obstructing or interfering with that meeting. A penal notice was attached to the injunctive orders made. Poole J adjourned the without application to remove and gave permission to the local authority not to inform B of the fact of the application. Poole J listed a closed and then an open hearing for the day after it was intended that the order requiring B to grant access was to be served.
The order was served by social workers on behalf of the local authority, but did not produce the desired effect. B did, however, attend the open hearing, at least for part of it.
It appeared that B might have left the hearing because of an internet problem, but he declined to rejoin. Poole J reached the view that:
Poole J therefore had to grasp the nettle of what to do:
Poole J was clearly troubled by the position:
In an addendum to the judgment (rare in welfare judgments, even if relatively common in medical treatment cases), Poole J recorded that Mrs A was safely transferred to the care home without the need for physical intervention or restraint.
Comment
Having just had the chance to have a first look at Beverley Clough’s new, and very stimulating, work The Spaces of Mental Capacity Law: Beyond the Binaries (review forthcoming when he has a moment), what came to Alex’s mind when reading this judgment was how to hold a (not literal – thankfully) inquest into what other possible courses of action, and by whom, could have led away from the point where Poole J found that he was constrained to require Mrs A’s – temporary – removal from her own home. We would suggest that this would be a very useful exercise for anyone wanting to think – for instance – about the application of Articles 16 and 19 CRPD (the duty upon States to protect those with disabilities from violence and abuse and to secure their right to independent living respectively).
Into that ‘inquest’ would go the fact that – as happens more often than might appear from reported cases – the court was seeking in the face of considerable odds to secure Mrs A’s continued residence at home. Those odds do, from the judgment, appear to have become increasingly insurmountable in light of the position adopted by B – but, notwithstanding the tantalising addendum, it would be fascinating (and important) to understand whether Poole J’s clear intention that the transfer to the care home be on an interim basis ultimately leads to a permanent situation, or whether a solution enabling her return home can be crafted and/or tolerated by the local authority and the court. It will equally be fascinating, and important, to identify insofar as possible what Mrs A wants as part of that exercise.
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