Wishes and feelings in the balance

Barristers at 39 Essex Chambers analyse the outcome of a s.21A MCA application and contested hearing of whether it was in the best interests of MA, a 90-year-old woman with a diagnosis of dementia residing in a care home, to have a trial return to her home with a package of care.

In MA v Gateshead Council & Ors [2024] EWCOP 34 (DJ Simpson) MA was widowed and had five children, three of whom held both her health and welfare and property and affairs LPAs. The three attorneys took the view that it was in MA’s best interests to reside in a care home, while her two non-attorney family members took the view that it was in her best interests to return home with a care package of four care calls a day. The Official Solicitor, acting on behalf of MA, supported the position that she should have a trial return home.

MA had been placed in a care home following a hospital admission in the summer of 2023 after she had a fall. She had previously lived in her own home with a package of three care calls a day. MA was objecting to residing in the care home and wished to return to her own home.

Capacity was not in issue, and the proceedings related solely to best interests. The Official Solicitor argued that MA’s wishes and feelings should be of “magnetic importance” (paragraph 32). The local authority argued that MA would be at risk at home, but also that the quality of her life would deteriorate if she were to do so.

The evidence of the social worker was that MA’s needs were primarily around continence (for which she was declining to use continence pads) and prompting for activities of daily living. The social worker was concerned that MA would not be able to use a ‘lifeline’ pendant if she had a fall at home, or would not remember how to do so. The social worker also had concerns that as MA’s family were not close by, she may become lonely or have low mood if her only human interactions were with carers. MA had been resistant to care calls, and wanted no more than one carer attendance daily; she referred to four daily visits as a ‘deal-breaker.’ She also did not want carers to undertake care tasks. Carers would also not have the flexibility to return to MA if she did not wish to get out of bed or undertake care tasks at the times they were present. The local authority felt that “how MA will present after two weeks at home following an extended period of 24/7 care is not representative of how she will present in the longer term. They also believe an assessment of compliance with care at home requires a longer review, but that is not possible whilst keeping MA's bed at placement 1 available” (paragraph 52). The local authority also felt her falls risk was increasing with time. The local authority also submitted that MA did have a good quality of life at the placement, and the court noted that this was “not fully disputed” (paragraph 56).

MA’s family members who supported her having a trial period at home stated that they would continue to visit her, and could act as emergency contacts for her; the nearest such relative lived 40 minutes away by car. They felt that MA had strong and clearly expressed wishes not to be in a care home, both historically and now. They felt that with more regular domiciliary care calls than she had had previously (leading to regular eating) she would fare better than she had prior to her admission to hospital. They accepted that MA overestimated her abilities to look after herself, and that if she did not accept a home care package, she would need to return to the care home. It was also accepted that a fall at home could be catastrophic, but they emphasised that this had not happened at home and did not feel the falls risks were reduced in the care home. They felt that a two-week trial would be a good indication of whether a safe return home was possible. The Official Solicitor also submitted that a trial at home should be attempted before it was ruled out as an option.

The family members who opposed the placement agreed that MA did not want to be in a care home, but felt that she was less vocal on this point than she had previously been. They felt that the ‘home option’ had been tried before she was admitted to the care home, and had not worked. They did not feel that she was safe, and did not think it was in her best interests to attempt a trial they felt would not work.

District Judge Simpson noted that a future question might arise of releasing MA’s place in the care home if the trial was successful, as it was not clear that it would be maintained for more than two weeks; however, that issue did not yet arise. District Judge Simpson accepted that MA had chosen to live at home when she had capacity, and that she “has been vocal and resistant at times to care at home and does not wish to reside at placement 1 despite her accepting the care she receives is good. I accept this would likely influence her decision if she had capacity, I also accept she has been resistant to care in her home in the past which resulted in her admission to hospital and then placement 1” (paragraph 65). A balance sheet exercise was carried out, producing the answer that the matter was “finely balanced,” although the conclusion of District Judge Simpson was that:

[a] trial placement at home would be the least restriction option, be in accordance with MA's wishes and feelings and can be undertaken for a short two week period whilst her room at placement 1 remains open to her in the event of a breakdown. On that basis I authorise the trial placement at home.

Comment

As ever, it is very good to have judgments from District Judges, given that they hear the vast majority of cases before the Court of Protection. In this regard, we note that it is a shame that the very detailed guidance just published relating to publications of judgments in family proceedings (including expectations as to the numbers) was not accompanied by guidance relating to judgments in the Court of Protection, leaving us reliant on what is now rather dated guidance from Sir James Munby.

One point to note about the balance sheet used by District Judge Simpson is that some of the senior judiciary have been cautious – and in the case of Hayden J and Sir Andrew McFarlane – actively negative about the use of such balance sheets, running the risk of they do as serving as a substitute for analysis, rather than a structure. District Judge Simpson did not fall into this trap here, but for more on why it can be a problematic issue, see here.

This case summary appeared in 39 Essex Chambers’s July 2024 Mental Capacity Report.