GLD Vacancies

Best interests, wishes and feelings

Alex Ruck Keene KC (Hon) looks at a recent Court of Protection ruling that provided a worked example in an imperfect world.

Aberdeenshire Council v SF (No 4) (Residence) [2024] EWCOP 67 (T3) is the most recent in a long-running series of decisions concerning SF, a Scottish woman in her 40s with moderate intellectual disability, autism spectrum disorder, associated periods of severe anxiety, and a diagnosis of difficult to treat schizoaffective disorder (bipolar type).

In June 2023, Poole J held that SF was habitually resident in Scotland, notwithstanding that she had been living in England and Wales for a number of years, first as a patient detained in hospital under the Mental Health Act 1983 and then, from 2022, in a supported living placement in the community. At the time of that judgment, because of her condition and the circumstances of her care, SF was not integrated in a social or family environment in England. In a second judgment, Poole J held that a Scottish Guardianship Order made on 16 June 2021 (the SGO) which authorised SF’s mother, the Second Respondent, EF, to consent to the deprivation of SF’s liberty, should not be recognised and enforced in this jurisdiction. In a third, ex tempore judgment given on 27 June 2024 (not available online), Poole J held that SF had then become habitually resident in the jurisdiction of England and Wales. He considered that she had made “astonishing progress” at her current community placement and had become integrated into a social environment in England.

After years of searching for suitable accommodation and care in Scotland there was now available to SF a choice of residence and carers but, because Poole J held that she did not have capacity to make the decision for herself, he had to make the decision in her name and in her best interests:

4. There are two options: SF can either remain in her current placement, “X”, in the Northeast of England, or she can be moved to a new placement, “Y”,  nearer to her family in the Northeast of Scotland. She has been at X for over two years now. After an initially difficult period of settling in at X, she has made considerable progress. All agree that she has benefitted hugely from the care at that placement, provided by Orbis. However, her mother, aged 74 and with health problems, finds it increasingly difficult to make the long journey from her home in Northeast Scotland to visit SF at X and SF is also located far from her brother and the rest of her family and old friends who live in the same area as her mother. If she remains at X, SF will be likely to continue to receive excellent care and to live a life of activity far beyond what was imaginable just two years ago but contact with her family would be likely to diminish. If she were to move to Y, she would be much closer to her mother, brother and the rest of the family, but there would have to be a carefully managed transition period and it cannot be known how she will settle in and progress at Y. All accept that SF would struggle with the change. The offer at Y is of accommodation, provision of care, and the availability of activities similar to those at X, but SF would be in the hands of a new and unfamiliar team in new accommodation. The connections she has made at X would be lost and she would have to start over again. There would be a risk that she would not respond well to the new carers and environment.

As Poole J identified:

5. There are risks, benefits, and disadvantages from either option and neither choice is obviously the right one for SF. In approaching this difficult choice, the Court must apply the relevant statutory provisions under Mental Capacity Act 2005 (MCA 2005) s4, guidance from caselaw, and do its best to make a decision in SF’s best interests. 

Having set out the law and the evidence, Poole J made clear that:

28. A key issue is the wishes and feelings of SF. The evidence shows that she has expressed different wishes and feelings about moving back to Scotland at different times. The evidence also shows that she has been influenced by EF and GF [her parents] to express her wishes and feelings in favour of a move to Scotland. Having heard from EF and GF, I am sure that they sought to persuade SF to say that she wants to move to Y because they believe it is best for her. They have not acted maliciously but rather in what they believe to be her best interests. Nevertheless, their influence has been quite strong and has made it harder to discern SF’s true wishes and feelings. Having given this matter very careful consideration I have concluded that:

i. SF is conflicted – she loves living at X and being supported by the Orbis carers. She greatly enjoys the activities in which she participates in the community around X. She has a good life at X. She does not want to leave X. On the other hand she wants to see her mother and brother. She has been given to believe that she will see more of them if she moves to Scotland and may not see them if she remains in England. Naturally she wants to see them more rather than less. If she could both stay at X and see more of her family, that is what she would choose. She struggles to accept that she cannot have both.

ii. Day to day, SF does not think about moving to Scotland. She does not pine for Scotland. She has some unhappy memories of living there.

iii. She can make plans for the future – as demonstrated by her saving up for her trip to Scarbrough with the encouragement of staff – but largely she lives in the present. She does not ruminate on moving to Scotland or to Y. It is only when prompted that she applies her mind to the issue. She would like to see more of her family but when she does not see them, she gets on with the day and enjoys her life at X and in the community around X.

iv. SF is easily influenced and wishes to please her family. Before EF and GF sought to influence SF, she had consistently said she wanted to stay at X. I recognise that she might have been influenced by her carers at X and that at that time no-one around her was advocating for a move to Scotland, but there is no evidence that she was influenced in the way in which EF and GF have sought to influence her. My judgement is that SF’s own wishes, before she was influenced to say otherwise, were to stay where she was living. She may not have appreciated the implications for contact with her family members, but she wanted to stay where she was.

He made clear that:

29. Assessing all the evidence relating to SF’s wishes and feelings, I find that SF’s wish is to remain living at X and to be cared for by her current care team. She does not want to leave X but she does want to continue seeing her mother and brother there. She has no great desire to return to Scotland itself and is very happy living at X in England.

There were undoubtedly both risks and benefits to both SF staying in England & Wales, and going to the placement in Scotland, but ultimately, Poole J identified that:

35. I remind myself that the Court’s role is not to do the best for EF or the family, but to make a decision on SF’s behalf in her best interests. There is a loss to SF whichever choice is made. That has come about because of the need to transfer her care to England several years ago and the delays in finding a suitable placement in Scotland. Such an opportunity to move back to Scotland might not arise again for a number of years. Scotland is SF’s home country and all her family live there; none lives in England. Nevertheless, SF does not want to leave X and she has no great desire to return to Scotland itself. The placement at X works very well for her and she is happy there. She may not be happy at the alternative placement, Y. She does not deal well with change, indeed it is liable to cause her distress. Until she settled in to X she was much more frequently agitated and distressed, and she frequently required restraint and seclusion. It may be that a change in medication has assisted her to achieve stability, but it is also quite clear that the excellent care she has received at X has been instrumental in transforming her life. The process of removing her from X and transferring her to Y risks a significant deterioration in her condition and her welfare. It cannot be known that the combination of factors that have so enhanced her life at X will be replicated at Y.

36. In her day to day life what matters most to SF is the place she lives, the people she has around her when she wakes up, when she eats, and when she goes out, the places she visits and the people she meets there. She has shown herself to be a sociable person who delights in the company of her current care team and in activities out of the home. Her family mean an awful lot to her too and she loves seeing and spending time with them. I recognise the sacrifice of time with her mother and family that will be suffered by SF if she remains at X but in my judgement what is more important to her and to her welfare are the care, support, and experiences she has between visits – they are what give her life the character that it now has. It is a life that she enjoys and wants to continue. Placement X is working for SF and it would be contrary to her best interests to remove her from it. She has stability in her life for the first time for many years and the funding for her current placement is secure. I am satisfied that whilst this decision interferes with her right to a family life, it respects her right to a private life and that any interference with her right to a family life is proportionate and justified as being in her best interests.

Poole J concluded his judgment both by recognising that:

38.This decision will be hard for EF and GF to accept. I am sorry that there is no solution that suits them as well as SF’s best interests.

39. I have written a letter to SF to explain my decision. She has written to me and we have met at her request. It is a courtesy to respond and by doing so I can give her my decision directly and in language suitable to aid her understanding.

Comment

Unlike in the earlier judgment about recognising and enforcing the Scottish Guardianship Order, this decision makes no new law. It is, however, an excellent worked example of a sensitive analysis of best interests where no option is ideal.

Alex Ruck Keene KC (Hon) is a barrister at 39 Essex Chambers. This article first appeared on his Mental Capacity Law and Policy blog.