Woman with diabetes and subject to deprivation of liberty in care placement to be allowed home, judge rules

A Court of Protection judge has ruled that a woman with type 1 diabetes and mental health issues can go home, after being deprived of her liberty in a specialist facility which she expressed she “hated” being in.

The woman had been ordered to move to the specialist facility for several months for assessment, following a previous case brought before the courts which heard that the woman was unable to “engage with carers” when at home and had become seriously ill.

In Lancashire & South Cumbria NHS Foundation & Anor v AH [2022] EWCOP 45 Judge Burrows decided that the woman (AH) lacked the capacity to “make decisions concerning her residence and care” in the context of her health and her “inability to independently manage her diabetes”.

The judge had approved the original plan under which the woman was told to move to the specialist care facility.

AH was deprived of her liberty there as she was not free to leave and could only leave the placement for visits to her own flat with the permission of staff and was required to return, in accordance with her care plan.

The applicants, an NHS Foundation Trust and a county council, returned to court to ask the judge to make a decision after the woman said she “hated” being in the unit.

In a later judgment handed down this month, AH, Re (Re Best Interests) [2023] EWCOP, the judge said about AH: “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.”

The judge noted that he is in “no doubt” that AH is deprived of her liberty, and that she wants to be in her own home, rather than the specialist facility, referred to as ‘Placement 1’.

The applicants invited the judge to find that it is in AH's best interests to stay where she is.

The judge noted that at present, whilst the Court considers its final decision, AH is subject to a care plan whereby she resides at Placement 1, and she is allowed to leave there on a daily basis subject to a requirement to return as arranged or as required.

The judge noted that as part of the arrangement, AH is permitted to spend a night - usually one a week - at her own home, which is “very important to her”.

However, the rent for her flat is being paid by housing benefit. It will, however, not be paid beyond the first anniversary of her residence at Placement 1 (March 2023). The judge said that after this date, her rent would not be paid, and AH would lose her flat.

Considering the law, the judge noted that having concluded AH “lacks the capacity to make decisions concerning her residence, care, and treatment”, the Court has to decide what decision, if any, should be made on her behalf.

Judge Burrows said he must “apply and be guided” by s. 4 of the Mental Capacity Act 2005 (MCA) when considering what decision to make.

Applying relevant case law, he said: “In this case, the judgment of Peter Jackson, J. in Wye Valley NHS Trust v B [2015] EWCOP 60 is particularly relevant. I must not consider capacity to be like an 'on/off' switch. The Judge in that case made a particularly important point at [11] that "the wishes and feelings beliefs and values of people with mental disabilities are as important to them as they are to anyone else, and maybe even more important". [Judge’s emphasis in bold]

He continued: “An automatic "discount" should not be applied to take account of the person's status as mentally disabled. I added emphasis to the last four words of the quoted sentence because I was initially mystified by it. However, for reasons I will return to below, on reflection it makes perfect sense. The Judge went on to say that it is "important to ensure that people with a disability are not by the very fact of their disability deprived of the range of reasonable outcomes that are available to others”.

Analysing submissions from the applicants, the judge noted: “The issue of risk is the essence of the Applicants' case. AH is presently safe and well. She is regularly and consistently monitored and treated. This can go on indefinitely. She can remain well. She can continue to develop friendships with people at Placement 1. She can engage in activities there. The alternative is that she can go home.

“When she disengages, and the word, according to the Applicants is "when" and not "if", her "decline is inevitable" to quote Mr Fullwood [counsel for the applicants]. Once that happens, she may die. Even if she does not die, she will need hospital treatment and then she will be in the same position as she was in March 2022 - she will need a specialist placement where she can be monitored and treated."

Analysing submissions from the Respondent, the judge noted: “Adequate diabetes care will be available to AH in her flat, as it is at Placement 1. The difference between the two is that at the Placement nursing care is available all the time for constant monitoring and administration of the medication, whereas in the flat District Nurses will visit at certain times. Moving to her own flat is therefore an option.”

He continued: “The thrust of the Respondent’s implicit (if not explicit) submission is that I can properly balance AH's desire and right to independence with the risks to her health when deciding between the two options. I can properly favour giving AH her liberty even if there is a significant risk to her health as a result.”

In making his decision, the judge said that he had to consider other factors outlined in the case, aside from AH’s medical needs.

He said that central to these factors were her “wishes and feelings” which in his judgement, were “clear, unequivocal and consistent”, and a “clear expression” of what she wanted.

The judge noted that if he was to grant the order sought by the applicants, AH would lose her flat, but also would lose a “great deal of hope”.

Explaining his decision, Judge Burrows said: “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.”

The judge noted that in terms of care, AH will receive social care and will be able to access the community with or without support, whilst being allowed to live at home. He noted that it is “uncertain” whether she will engage with the care staff or whether she will be able to keep herself well, noting: “there is a risk she will find herself back in hospital and then in care afterwards again”.

However, the judge concluded that in his judgment, the woman has the “right to her liberty”, and to remove it from her 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”.

Lottie Winson