Re AH (Re Best Interests)

Summary

Following on from his earlier judgment ([2022] EWCOP 45), HHJ Burrows returned to this matter to consider AH’s best interests with respect to her residence and care. 

AH was 46 years old and had a diagnosis of type 1 diabetes. HHJ Burrows summarised the risks that this condition posed to hear at paragraph 1: “If her diabetes is properly managed, she is able to be fit and healthy. If it is not, she can rapidly become seriously unwell, and could die. In the past she has not been able to engage with those professionals who are responsible for her diabetes care. That led to her becoming seriously ill with ketoacidosis. She required hospital treatment. She was fortunate not to die.” HHJ Burrows also noted the ‘cycle’ she had experienced while living in the community of “non-engagement, illness, hospitalisation and then a dispute as to her destination upon discharge – if she does not die first” (paragraph 23). 

After concluding in its earlier judgment that AH lacked capacity to make decisions as to her residence and care, HHJ Burrows went on to consider AH’s best interests in these domains. He did not hear from live witnesses, though did speak with AH herself. Her representatives (though her ALR) did not seek to challenge evidence from professionals. 

HHJ Burrows was asked to approve a care plan which would deprive AH of her liberty at ‘Placement 1,’ a care home which would admit her for a period of assessment (and where she had been residing since March 2022 on an interim basis).  However, in reality, AH’s stay there would likely be of indeterminate length. The placement would take responsibility for overseeing her administration of insulin. She would not be free to leave the placement for visits to her flat without the permission of staff, and would be obliged to return to the placement. At the time of the judgment, AH was visiting her flat for one overnight stay per week, but this would likely come to an end in March 2023 when her housing benefit came to an end and she would be obliged to give up her flat. 

HHJ Burrows heard from AH, who was clear that she did not want to go to Placement 1, and wished to go home. He noted that AH had lived an independent life in her flat for 17 years with support through the week, and medical oversight by the district nurses. HHJ Burrows also noted that AH was generally able to meet her social care needs, and could come and go as she saw fit. However, he also identified that AH disengaged (or inconsistently engaged) with her treatment, leading to potentially dire consequences for her. 

HHJ Burrows surveyed relevant authorities, including those which considered the position of those who wished to spend their ‘end time’ in their homes, and courts affirming that such a course would be in their best interests (such as P v M (Vulnerable Adult) [2011] 2 FLR 1375).  However, HHJ Burrows identified that, in distinction to such cases: 

34. […] AH is relatively young. She will constantly be exposed to the risks of disengagement and the consequences that follow for decades. Her life could be shortened by many years. Her years could be blighted by ill health and hospital stays. She would not be happy in those circumstances. Or she could live in a place she does not want to be for decades in good health. She would not be happy in those circumstances, either.

HHJ Burrows refused the uncontested application that AH should move to Placement 1, though found that the matter was finely balanced. It considered carefully that AH ‘hated’ Placement 1 and valued her independence. It noted that her flat remained available to her, and that a community care package could be organised for her. The court highlighted the potentially fatal risks to AH of disengaging with her care, and concluded that despite her stated intentions to engage, there was “a reasonable prospect that AH will eventually cease to engage consistently, perhaps at all. At that point, it is inevitable that the Applicants may have to adopt a similar approach to the one they have adopted here by seeking the approval of the Court for the use of coercive powers that restrict AH’s liberty or deprive her of it” (paragraph 45). The court also noted the benefits of Placement 1 being in AH’s home area, which allowed her to continue her social contacts; if she had to move on an urgent basis in the future, there would be no guarantee she might remain local.

HHJ Burrows summarised his conclusions thus: conclusions:

63. I have balanced all the matters I have discussed above. This is a finely balanced case. I have concluded that it is not in her best interests to remain at Placement 1. Whilst the benefits are clear and obvious, and the risk of going home is real and very serious, I do not consider it to be necessary to require her to reside at Placement 1, where she does not wish to be when she could move back to her own home.

64. In her own home she will receive social care and will be able to access the community with or without support. District Nurses will be able to provide AH with diabetes care. It is uncertain whether she will engage with them and whether she will be able to keep herself well. There is a risk she will not be able to do this. There is a real risk she will suffer a decline- gradual or sudden. There is a risk she will find herself back in hospital and then in care afterwards again. There is a risk she will die.

65. However, in my judgment she has the right to her liberty and to remove it from her would be a devastating blow to her and would not properly recognise her right as a disabled person to be afforded respect and dignity for the way she wishes to live her life.

66. I therefore make the declarations I indicated above. It is likely there will need to be a short period to enable the package of care at home to be restarted- I will defer the effect of this order until that is in place.

67. I also add some comments on the professionals who provide AH with care, some of whom were instrumental in bringing these proceedings. Bringing this application was entirely right and justified. It was an expression of genuine and legitimate concerns over AH’s health. Although the phrase “medical best interests” is often used, as any medical professional will immediately say, even medical best interests takes into account the wider issues that affect their patients. I have no doubt that the professionals in this case brought the application for AH as a person, not just as a difficult diabetes patient.

Comment

The judgment is notable for its rejection of the apparently uncontested position of the parties that AH should move to Placement 1. The court gave heavy weight to AH’s wishes and feelings, and found the effects of a move which likely would have done much to safeguard her health would be ‘devastating’ for her. While the case turned very much on its own facts and has limited value as precedent, it is of interest for its careful consideration of the harms which would be caused by overriding AH’s autonomy.