A trial of living at home – a “suspended sentence” of returning to care

By Jenny Kitzinger, 20th October 2021

Mr G desperately wants to live in his own flat – but this option is hanging by a thread.  

After a series of court hearings at which he challenged his “detention” in residential care (via s.21A of the Mental Capacity Act 2015), he finally moved back into his own home on 15th September 2021. 

But within a fortnight, his case was back in court for an emergency hearing after the professionals charged with supporting him in his own home raised concerns that it was unsafe and unsustainable. 

The hearing I observed (Case: 13382192 before His Honour Judge Tindal), was on 30th September, 6 days after that emergency hearing. It addressed two key issues. 

  • The first issue was an injunction that had been taken out against Miss F, Mr G’s ex-partner (or possibly his current partner, definitions of their relationship varied). 
  • The second issue was whether Mr G should be immediately returned to the care home.

In this account I use extensive quotes from the hearing (written up as accurately as possible given that recording is not allowed). I do so in order to show how interactions in court (especially between the judge and Mr G and Miss F), were navigated in this difficult case in an attempt to achieve a positive and sustainable way forward and to reach a best interests decision in accordance with Mr G’s own wishes and goals.

Background

Mr G is a 64-year-old man with vascular dementia and frontal lobe damage, alcohol dependence syndrome, opioid dependence and insulin-dependent Type 1 diabetes. He’s been deemed to lack capacity to make decisions regarding his residence and care – but he has consistently disputed this assessment. As he put it in this hearing:

 “I was taken into care erroneously. I believe that I have a small degree of impediment regarding my short-term memory. It does not ever interfere with my life, behaviour or quality of life.

I’ve been following Mr G’s case for over a year. The case has a long history, first coming before HHJ Tindal in early 2019. A previous attempt to support Mr G to live in the community failed in early 2020, a few months before the first hearing I observed in the current series. 

I’ve blogged about some of previous hearings herehere and here. In my previous reports, I’ve charted a whole raft of challenges that have complicated and delayed this decision-making process. These include Mr G’s ability safely to manage his pain medication and diabetes, issues around trialling different approaches to his medication which might be easier to manage ‘in the community’ and problems coordinating a suitable care package to support his move home. Once these challenges were overcome, there remained delays in sorting out probate on his mother’s flat and transferring the property and lease into his name so he could make this his home on leaving residential care. 

In previous hearings I attended it was clear that the judge was doing everything within his power to help these matters progress in a (more) timely manner. For example, he adopted various strategies to try to nudge on the housing access issue; this included, at the hearing on 2nd August 2021, recording a “degree of judicial exasperation” about the behaviour of the landlord’s agent, suggesting weekly updates on progress about transferring the lease (in an effort to focus their minds) and giving permission to release the court order to the landlord’s agent. He also stated that, if there was no progress, he might issue a witness summons administratively based on an email application for this (“I can’t issue a witness summons yet as I don’t know who I’m summonsing”).

The judge had also been very critical of problems with coordination between organisations that were (or could become) responsible for supporting Mr G. After initial problems with what the judge, called “turf wars”, the professionals across health and social care had (according to the Official Solicitor) made ‘Herculean efforts’ to work together to create a viable discharge plan and it was clear that members of the care and district nursing team had also gone to considerable lengths to support him since his return home.

Sadly, however, Mr G’s move home did not go smoothly. Within days, professionals were reporting concerns about his drinking and about the  management of his medication and diabetes. This raised alarm bells because his specific health conditions mean that without careful management of his diabetes he is at high risk of ketosis and death. 

Miss F, was also spending time with him in the flat. In previous hearings she had been discussed (including by Mr G himself) as someone who added stress to his life and whose presence correlated with greater instability and drinking alcohol.

Interactions with Miss F at Mr G’s flat led to the community nursing team being instructed by their management not to enter if she was there. This means they were sometimes unable to oversee and monitor his use of insulin.

As a result of these concerns there was an emergency hearing on 24th September 2021. But the judge declined to make a ruling because Mr G, due to technical difficulties, was unable to join the hearing online and the judge was unwilling to make a decision in Mr G’s absence and without him being able to contribute to the discussion.  

The judge did, however, use his power to grant an injunction against Miss F, forbidding contact with Mr G in the hope that this would remove one potential obstacle to the care professionals being able to support him to live (safely) at home, and hence support and ensure compliance with the court’s best interests decision.

The hearing on 30th September 2021

The hearing I observed on 30th September was a hybrid hearing. Mr G was physically present in the court, as were the judge, Miss F, and the sole witness in court (Mr G’s social worker). Joining remotely were: counsel for Mr G (Alexis Hearnden); for the Local Authority (Carol Knotts) and for the NHS Trust (not named here as this would reveal the identity of the Trust, which is the subject matter of a transparency order).

Part 1 of the hearing: The injunction against Miss F

The hearing started with a discussion about the injunction forbidding any contact between Miss F and Mr G (who, at this stage were seated on different sides of the court room). 

Before hearing what counsel had to say, the judge started by reassuring Miss F that:

 “No one is in trouble. You’ve been served with an injunction but…this is not about an allegation that you’ve broken the law. I felt the injunction was necessary to protect Mr G from a situation that was bad for him”.

He then reminded Mr G that he’d authorised his return to his flat subject to a number of conditions which included not having contact with Miss F. He’d done that because he had come to the view that: 

”Association with Miss F was not healthy for you. It brought about an unstable situation. I’m doing my best to sound neutral. It’s a chemical reaction, not that Miss F is exploiting you, it is how the two elements combine”. 

He also acknowledged that Miss F has submitted a position statement and promised to hear her perspective.

The judge then invited counsel for the Local Authority to explain their concerns. Carol Knotts reiterated the Local Authority’s perspective on Miss F’s role in Mr G’s life. She said, ‘when in her company in the community, it would appear there are episodes of drinking’, and that ‘alcohol effects his judgment and ability to manage his medication – with a knock-on effect on his diabetes’’. She concluded: “Contact with Miss F is not helpful in his management of his medication or his drinking’.

The judge then indicated he felt no need to call on counsel for the NHS Trust but stated that he would himself read out part of a statement provided by the community nursing team. He proceeded to read out sections which detailed professional concerns; this included a smell of alcohol emanating from the flat when Miss F was in there with Mr G and her reportedly trying to close the flat door on the community nurse. She was also “verbally rude” in the background and was heard to say: “I told you darling, they are trying to rule you”.

The judge then invited Miss F to “Tell me your take on the situation”.

Miss F protested that what she had just heard was “an absolute distortion of the truth” and that she was very shocked about what had been said about her. (Mr G interjected from the other side of the court room: “I am too”.) Miss F declared: 

“I am speechless and it takes a lot of get me to this point… To suggest he drinks in my presence is the opposite of the truth. I have moved mountains to try to access addiction services for [Mr G] and galvanise him… I have a complete full record of [his] healthcare since July 2016. I have evidence including photographic and video how his health improved.”

She said she was traumatised by “what they [adult social care] have visited on my [pet name for Mr G] and myself. I’m crying because of what he has had to endure.”

At this point Mr G got up and moved across the courtroom to sit beside Miss F and put his arm around her (the existence of the injunction notwithstanding!).

Miss F went on to talk at length about Mr G’s health and detailed how she had supported him through his pancreatectomy, time in intensive care, rehabilitation after his stroke, and his opiate tapering programme. At one point she held up a photograph on her phone: “This is [him] under my care at home, fully absent from alcohol” .

She also recounted tales of multiple encounters with health care professionals – her descriptions of clinicians ranged from the very positive to the very critical, and included accounts of some head-on confrontations as she fought to get what she believed was right for Mr G. She described, for example, how she had given insulin to him in hospital when his blood sugars were very high and she believed the clinical team were failing him and “I am still suffering PTSD from being put in a police car for administering a noxious substance with the intention of causing harm”. She was, she said, never charged and is actively seeking recompense for “the outrageous conduct of various agencies”.

She asserted that “I do not have co-dependency, I am speaking the truth.” and I’ve never done anything other than promote his good health” and it was entirely wrong to suggest otherwise. 

Judge Tindal allowed Miss F to talk at great length and then commented that he was not going to invite debate about previous events “but you’ve illustrated your understanding of the extent on his health problems.” He also noted that she demonstrated that she was interested in his welfare. While, strictly speaking, the focus was on the injunction:

“Section 4 of the [Mental Capacity] Act requires me to take into account anyone interested in Mr G’s welfare. … What is your view on whether his conditions can (a) be managed safely in his flat and (b) the impact upon him were he required to return to care home?

When Miss F continued to talk about past medical and care issues the judge gently but firmly invited her to engage with these key questions. She said that a return to the care home would be “catastrophic for his mental health without any access to a family or private life”.

The judge then returned to the fact that the district nurses were saying they would not attend to Mr G if she were present and that “One of your main focuses is what is best for Mr G”. 

”This thought occurs to me – what I might do is if I am persuaded that Mr G can remain at home for a short period of time to see how things go, …One thing I could do is remove the restriction on contact [e.g. by phone] but to maintain the requirement that you don’t visit – simply to enable, to unblock the impasse for district nursing staff to be able to visit….Would you honour that request?”

Miss F confirmed she would.

The judge then invited comment from Mr G who declared at this point ““I love [Miss F] and I want to spend the rest of my life with her ” (A declaration that prompted the judge to comment “that is the first time you’ve told me that”). Mr G continued “I believe she feels the same way. …[I want] to enjoy whatever time I have left with the woman I love. I want to get on with my life. I don’t want to be interfered with by courts, the counsel, the health authority.”. Mr G however, agreed, that he would respect the injunction against Miss F (with the slight amendment proposed by the judge).

The judge then invited comments on his proposal about the injunction with the diverse barristers present. In spite of some hesitancy from them (they reiterated some ongoing concerns about Miss F’s role in relation to Mr G’s current care regime), the compromise way forward was accepted as having merit. The OS highlighted that the new information from Mr G about his feelings for Miss F (which were different from what he had previously indicated) needed to be given weight, but also commented: “You’ve rightly observed the picture you have in court is very different to the evidence you have before you” and expressed concern about the ‘high stakes’ involved given Mr G’s health conditions. The OS however did support a short test period with the revised injunction

The judge responded to the comments from the OS by stating I’m not making any finding about whether reality is as Miss F puts it or as professionals put it” and then made a short ruling.

This is the first time I’ve met Miss F and she gives a very different account than the account given to me before. This is not to suggest professionals have mislead me. Judges are used to not making a decision until everyone has had their say. …The impression that had been created was that the relationship between Miss F and Mr G was complex [with a] correlation between Miss F’s involvement and instability. Another alternative perspective is that there was correlation with professionals feeling Miss F was not helping them achieve what they wanted to achieve. …The impression I am now left with is this. Miss F does not have a huge amount of confidence in the professionals. It wouldn’t therefore surprise me if Miss F and the professionals disagree about certain things. I can see why the two [Mr G and Miss F] are attracted to each other. What Miss F has satisfied me of is she loves and cares for him.

Miss F interrupted at this point to declare: ‘wanting him to be safe, but also wanting him to be free.

The judge went on to rule that it was in Mr G’s best interests that the injunction should remain in place in a limited form, prohibiting Miss F from attending the property or seeing Mr G in person, but not restricting other contact (e.g., by phone). Compliance with this injunction was, he emphasised, a way of allowing the district nurses to visit and he took Miss F’s commitment to complying with the injunction “as a further example of Miss F putting Mr G’s interests before her own.”

Given Mr G’s express wish to see Miss F, the judge also requested that a capacity assessment should be done on Mr G’s capacity to decide on contact and relationships for himself.

Miss F was then invited to leave the court room.

Part 2 of the hearing: Mr G’s place of residence 

The second part of the hearing addressed the question of whether Mr G should be returned to the care home.

The focus was on the extent to which Mr G was, or was not, abiding by the four key pre-conditions that had enabled the judge to feel he could authorise a safe return to the community. The four pre-conditions were that Mr G would not see Miss F, that he’d manage his pain medication appropriately, abstain from alcohol and permit district nurses to monitor his diabetes management.

The first pre-condition, not seeing Miss F, had obviously not been met but concerns about that were, the judge hoped, resolved at least in the short term. However, there were also question marks around Mr G’s compliance with the other three preconditions – particularly in relation to his use of alcohol and cooperation with district nurses.

After hearing from Mr G’s social worker, all three counsel, and Mr G himself, the judge addressed Mr G directly to ask whether he had acted in good faith when he promised to abide by the pre-conditions. “Absolutely sir” came the reply.

The judge then invited Mr G to explain why he’d not kept his promises – and Mr G offered explanations such as saying he had let Miss F into his flat as it would be “ill-mannered” not to have done so, and that he had drunk alcohol out of “curiosity”.

After being given an opportunity to show his understanding of all the pre-conditions and why they had been put in place, the judge invited Mr G to reiterate his commitment to abiding by them going forward.

The judge underlined the importance of Mr G honouring his undertakings. If he were not returned to the care home immediately today then he might like to think of this as a “suspended sentence’”.

The judge then invited final submissions.

Final submissions and judgment

Counsel for the Local Authority emphasised that “we’ve had promises before” and that “any drift in the perspective of what was required is in his [Mr G’s] own mind” and emphasised the risks of leaving Mr G in his own home. This position was supported by counsel for the NHS Trust: in their view, it was in Mr G’s best interests to be returned to his care home immediately.

The final position statement from the OS, however, supported a short further trial period at home. Although “mindful of the strength of concerns’ in witness statements “the balance comes down in favour of a final effort [to support home living]” given the strength of Mr G’s feelings, the shift in the role of Miss F and the fact that “Mr G has had the opportunity to see how close the possibility has come for return to residential care”.

His Honour Judge Tindal then gave oral judgment. Mapping out the long running chronology and the legal principles he emphasised that “I am on a personal level massively disappointed that Mr G broke his word to me and drank.” And underlined the risks: “If he carries on drinking he could go into hospital and die” . He concluded, however, by ruling that Mr G could stay in his own home, for now, but If he breaches his word to me again, he will be going back to the care home”.

In his judgment the judge acknowledged the stresses on staff (especially during a pandemic) and the difficult situation he was placing them in. He made clear that if Mr G were to suffer a major medical crisis during the continued trial period at home, then ”the person who takes responsibility is none of the professionals, it is me… They will do everything they can. But they can’t do everything. They must not feel they are under any legal pressure regarding risk management. If things go wrong this is on me, not on them”

He concluded by expressing the hope that if things went more smoothly over the next couple of weeks, then “ the legal proceedings might be finished in a few months’ time and it would be possible to see the last week or two as simply teething troubles”.

Postscript – the “candle of optimism” flickers

Since drafting my account of the hearing on the 30th September 2021, the case has returned to court. On 13th October 2021, I observed a hearing that highlighted ongoing concerns from healthcare professionals about alcohol use and a lack of cooperation with the district nurses. 

In court, Mr G responded by accusing the professionals of “duplicity” and “lies” – “I have not drunk a drop”. It was also, he said a “nonsense” to have district nurses visit him, as he could manage his diabetes perfectly well without them.

The position of the Official Solicitor by 13th October 2021 was now to agree with the Local Authority and the NHS Trust that Mr G should be returned to the care home. 

There was, however, no time to hear the evidence – and also some new evidence had yet to be filed due to what the Local Authority referred to as the “rapidly evolving situation”.

The judge emphasised that the information discussed at this point was “information” not “sworn and tested evidence” but expressed his deep disappointment: the “candle of optimism” was flickering.

A further hearing is scheduled for 21st October 2021.

Jenny Kitzinger is a Professor in the School of Journalism, Media and Culture at Cardiff University, where she also co-directs (with Celia Kitzinger) the Coma and Disorders of Consciousness Research Centre.. She tweets @JennyKitzinger

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