By Ravina Bahra, 1st February 2021
Editorial Note: The judgment has just been published (5th February 2021) and is available here.
I had the opportunity to observe this hearing (COP 13588956) before Mr Justice Hayden at the Royal Courts of Justice (via MS Teams) on 28th January 2021, having requested access at 9:35am and received a link to the hearing within twenty minutes.
This hearing was about whether or not the person at the centre of the case (who I will refer to as Ms Doe), currently deprived of her liberty in a care home, can return to Poland, the country of her birth, to live with her sister and her niece who are keen to look after her themselves. Ms Doe hates her current placement and has been saying for more than a year that it’s a “horrid place” and that she wants to go back to Poland to be with her family.
The application before the court from Ms Doe (via her litigation friend the Offical Solicitor) was a challenge to the standard authorisation granted by the Local Authority pursuant to section 21A of the Mental Capacity Act 2005 as regards the best interests qualifying requirement.
Ms Doe was represented at the proceedings by Emma Sutton of Serjeants’ Inn Chambers, instructed by Lauren Crow (MJC Law). The two respondents were the commissioning bodies: the Local Authority, represented by Zoe Whittington of Cornerstone Barristers, and the Clinical Commission Group (CCG) represented by Samantha Paxman of Browne Jacobson LLP, instructed by Hannah Child of the same firm.
I have a background in law and human rights and have become increasingly interested in issues pertaining to access to the justice system and the general accessibility of the law to the public. I have also previously had the opportunity to sit in the public gallery of a Crown Court, but I do not have much experience with the Court of Protection or with remote hearings. I was aware that observing a hearing of such a personal nature, one tackling completely different issues to those I’d seen during hearings dealing with crime, would offer me a new perspective. I did not realise, however, just how limited my knowledge of the intricate details of Court of Protection hearings actually is – and I learnt a lot during this hearing.
The applicant at the centre of the proceedings, is a woman in her sixties, born and brought up in Poland, who has been living in England for more than 40 years.
She has a diagnosis of persistent delusional disorder or somatoform pain disorder, and a comorbid depression. As a consequence, Ms Doe frequently refuses to eat, drink or walk, and she believes that she needs to have her legs amputated due to the perceived pain. Following earlier court hearings, it was ruled that it was in her best interests to be fitted with a PEG tube for administration of nutrition, hydration, and medication – to be delivered, if necessary, against her wishes and with reasonable and proportionate restraint if required.
The purpose of these proceedings was to determine whether it is in her best interests to remain at her current placement in a care home, or whether she should be allowed to move to Poland to live with her sister and niece, as she and they all wish.
At a previous hearing on 23rd July 2020, final declarations were made that Ms Doe lacks capacity to make decisions about her residence. The decision must therefore made by the court and must be made in Ms Doe’s best interests. Given her strong wish to return to Poland, enquiries had been made prior to this hearing about her benefit entitlement, her health and social care rights, her citizenship status, and other issues that might have a bearing on her position as a consequence of the UK leaving the European Union (e.g. her pension entitlement). Also, an independent social worker had been instructed to assess the practical viability of Ms Doe returning to Poland, both in terms of travel arrangements and in terms of checking out the ability of her family to provide her with the necessary support. All such enquiries had produced very positive reports.
Risk, Rights, and Happiness
Ms Doe was seeking a best interests decision that would allow her to move to Poland, in accordance with the wishes of herself and her family.
Under Schedule A1 of the Mental Capacity Act 2005, a person may not be detained in a care home in circumstances that amount to deprivation of their liberty unless certain conditions are met, one of which is that it is in their best interests to be detained in this way (s. 16(1)). The usual best interests criteria apply (s. 4 Mental Capacity Act 2005), including:
- ascertaining the person’s own wishes and feelings (s4(6)(a)) and their beliefs and values (s4(6)(b)).
- consultation with those engaged in caring for the person or interested in their welfare.
It is also a key principle underpinning the Act that any decision made on behalf of a person who lacks capacity should be the least restrictive of the person’s rights and freedom of action (s. 1(6)).
Ms Doe has been clear and consistent in her wish to return to Poland for a long time and repeated that to her solicitor in a telephone conversation on 22nd January 2021. She confirmed she would like to return as soon as possible, and would accept professional support. It is, said counsel, “a wish on which she has never wavered” and significant weight should be given to Ms Doe’s wishes. Ms Doe’s values and beliefs are also important – and they include caring for family members. She had cared for her father following her mother’s death and remained with him in Poland when he was unable to care for himself. Returning to Poland will mean that she can be with her family (she now has none in the UK), freely speak her first language, and will be able to consume food from her native land, which carers at her current residence have stated that she has frequently said she misses. Also, Ms Doe and her sister are Catholic and she will be able to engage in religious activity and properly practise Catholicism with support from her family.
Ms Doe’s family are keen to welcome her home. In judgment, Mr Justice Hayden said “what shines through is their unflinching, unhesitating commitment to her”.
In addition to Ms Doe and her family, many other people involved with Ms Doe were consulted and they unanimously expressed the view that moving to Poland would be in her best interests. They included the local authority social worker (who was in court as a witness), the CCG, the psychiatrist, and her GP.
Most importantly, returning to the care of her family in Poland would offer a less restrictive way of providing Ms Doe with the care that she needs. At present, she is in an institutionalised setting where many of the residents have dementia and this limits her ability to socialise, develop friendship, and engage in group activities. She has often simply refused to leave her own room.
The Official Solicitor was in no doubt that it is in Ms Doe’s best interests to return to Poland and that, although there are still some ‘unknowns’ about what her life would be like there and the extent to which her family will actually be able to provide her with the care she needs, as much as possible has been done to sort this out in advance, and the remaining issues fall into the bracket of sensible risk appraisal.
In court, counsel for Ms Doe quoted from the famous case of Re MM (An Adult)  WEHC 2003 (Fam)), where Mr Justice Munby said:
The emphasis must be on sensible risk appraisal, not striving to avoid all risk, whatever the price, but instead seeking a proper balance and being willing to tolerate manageable or acceptable risks as the price appropriately to be paid in order to achieve some other good – in particular to achieve the vital good of the elderly or vulnerable person’s happiness. What good is it making someone safer if it merely makes them miserable?
The consequences of the pandemic
One of the biggest and most pertinent concerns raised by Mr Justice Hayden in the proceedings was that of the current COVID-19 pandemic and national lockdown in the UK. The effects of the pandemic were discussed in particular in relation to vaccination and travel plans.
Very early on in the proceedings, the judge raised the question of the COVID-19 vaccination. Ms Doe has already been offered the vaccination owing to her vulnerabilities. However, she had refused the vaccine and was deemed to have the capacity to refuse it. It is not required that she has one in order to travel from the UK to Poland: all that is needed is a negative test result. “I wasn’t thinking in terms of the regulations,” said the judge, “but about Ms Doe’s best interests. There is a very significant body of evidence that it would be in her best interests to have the vaccine and I’m not confident she will be offered it expeditiously in Poland”.
At this point, Ms Doe’s social worker was called to give evidence. She stated that she had discussed the vaccine with Ms Doe on 25th January 2021, four days prior to the hearing. Ms Doe had said that her nephew had recently travelled between Germany and Poland without needing to be vaccinated so she didn’t feel it was required.
The witness went on to mention that they have previously discussed Ms Doe’s fear of needles. She has often been reluctant to have antipsychotic medication because she finds the injections to be painful, and this refusal that has led to hospitalisation. The witness did also say, under questioning, that it has sometimes been possible to persuade her to have injections in previous circumstances. Mr Justice Hayden asked: “Would you think it appropriate for you to persuade her of the benefits? I don’t mean force it on her”, to which the social worker replied, “My understanding is that the care home manager has been doing that”.
The judge came back to this issue towards the end of the hearing, saying “I don’t want to obsess about this but…”. He continued to express a hope that Ms Doe would be vaccinated, and that there would be sufficient time before her departure for her to receive both of the two injections required (now usually 12 weeks apart). He did also acknowledge, however, that if she has capacitously chosen not to be vaccinated, “that is her right”.
The other pandemic-related issue was whether Ms Doe, and the two nurses who would need to travel with her, were validly exempt from the lockdown requirements for the journey to Poland.
According to Schedule 3A(1) of the Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020/1374, a person can only lawfully leave the place where they are living if they have a “reasonable excuse”. One of those reasonable excuses is “moving house” (s. 2(2)(f) (iv)) and there was some discussion as to whether that is what Ms Doe is doing, and the status of the two nursing staff supporting her. Commenting that “even the most enthusiastic defender of the regulations couldn’t contend they’re a model of pellucid clarity”, Mr Justice Hayden concluded that “even though this bespoke plan doesn’t fall comfortably within any of these listed excuses, it is not an exhaustive list, and in any case, I would hope that an order from the Court of Protection would assuage the concerns of even the most vigilant official at border control”.
Mr Justice Hayden delivered the ex tempore judgment after a short adjournment. He decided that it was in Ms Doe’s best interests to move from the care home to live with her family in Poland, in accordance with the order prepared by the Official Solicitor. He said he has “very little hesitation in coming to the conclusion that whilst the plan is not free from risk, it offers distinct and obvious advantages. It broadens [her] social horizons, it returns her to her family, it returns her to her homeland, and most importantly, it is consistent with her clearly and frequently stated wishes”.
He also commended the two nurses who were planning to travel with Ms Doe to her family’s home in Poland, and to stay there for some days to support her in settling in and helping her family get used to the care she needs. They would need to self-isolate on return and their willingness to support Ms Doe in this way was, he said, “incredibly impressive”:
“Five days of isolation in these difficult times is a challenge and to do it for someone else in the course of your employment is, I think, heroic. I don’t know that the public fully appreciates the sacrifices that some of our nurses make.“
This aspect of the case was also covered by the media here (“‘Heroic’ Derbyshire nurses face five-day isolation after mercy trip“).
I felt overwhelmingly that Mr Justice Hayden had made the correct decision and am convinced that that opinion was shared across the parties to the proceedings. It seems only right that Ms Doe should be allowed to move from a care home she says she hates to a family home with her sister and niece who are committed to caring for her.
It is often easy to underestimate the impact that court hearings have on people’s lives, and to forget that real people are affected by the decisions of the court, when reading a case summary or article. Even without Ms Doe’s presence – she had been invited to attend court but had declined – there was a definite unanticipated human dimension from watching a hearing that you simply don’t get from reading a judgment.
Moreover, having recently completed a degree in Human Rights, I benefited from contextualising my understanding of rights within the setting of the Court of Protection. Though national and international human rights mechanisms were not directly involved in this case, these proceedings did deal with deprivation of liberty (Article 5 of the European Convention on Human Rights) which underpins section 21A applications. It also touched on Ms Doe’s private and family life, and her personal beliefs and values.
Watching how this hearing emerged over time and took shape through the different arguments presented was powerful and made the proceedings feel very real.
When the proceedings ended, I felt that I had chosen a very pleasant hearing. It was relatively straightforward, without disagreement between parties, and the judgment was one that Ms Doe and her family would be happy with. The judge had a warm demeanour and even had a kind comment for the social worker about her stained-glass window, which was visible behind her as she gave evidence.
The judge praised everyone involved in the case: “I’ve been extremely impressed by the presentation of this case and by the implementation of the November order by all the professionals concerned. Good practice requires to be identified, and it’s a pleasure to do so.” In particular, he singled out the position statement prepared by Ms Doe’s counsel, Emma Sutton, as presenting “an extremely thorough consideration of competing issues”: she has “set out the factors that go into the best interests analysis and she has navigated her way through the relevant provisions of the Mental Capacity Act, looking at Ms Doe’s wishes and feelings, both past and present, and looking at her beliefs and values”. He described Emma Sutton’s position statement as “a model of its kind”. Elements of it are to be incorporated into the judgment.
I felt that I had been fortunate in observing a hearing that showcased an ideal standard for best practice and for written and oral submissions. This was informative for me as an aspiring advocate in gaining a first-hand understanding of effective advocacy.
Lastly, I gained a new and all-important understanding of the wide-ranging impact of the COVID-19 pandemic. Consideration of the pandemic and lockdown took up a significant amount of the proceedings, and it was clear to see how COVID-19 has infiltrated every aspect of life from the concerns surrounding Ms Doe and the vaccine, to whether it would be feasible for Ms Doe to return to Poland, and of course to the remote hearing itself.
Ravina Bahra is an aspiring barrister and is interested in politics, social welfare, migration matters, and access to justice. She has an undergraduate degree in Law from University of Essex and recently completed a postgraduate degree in Human Rights at the London School of Economics. She tweets @RavinaBahra