By Jenny Kitzinger, 18th January 2022
Mr G is a 64-year-old man who has been arguing for his right to live in the community since soon after entering residential care in early 2019.
He is deemed not to have capacity to make a decision about where he lives, so this decision (along with other best interests decisions) has come before His Honour Judge Tindal in Worcester on numerous occasions (Case 13382192).
The hearing I observed on 20th December 2021 was the latest (and perhaps last) in a series of hearings about his case: I’ve blogged about earlier hearings here, here, here, here, here and here.
Mr G’s loss of capacity to make decisions for himself (in relation to his care and residence) is relatively recent. He previously had a highly successful career in senior management, but had struggled with alcohol and opiate abuse. He has vascular dementia, Korsakoff’s amnesic syndrome, and frontal lobe damage. He also has severe physical health challenges because of diabetes and he’s had a pancreatomy – which has left him entirely dependent on prescribed insulin and means that drinking alcohol is extremely risky for him.
Mr G is an articulate and determined individual who is vociferous in his rejection of “incarceration” in residential care and consistently demands respect for his “autonomy”.
Various attempts have been made to enable to have his “liberty” with support from social and healthcare teams and from his partner, Miss F. This includes an earlier trial of living in the community in late 2019 (which failed after a few months), and the current trial that started in September 2021.
This latest hearing, however, drew an end to the most recent trial of living in the community. The judge ruled that it was in Mr G’s best interests to be returned into residential care, even though this was clearly against his will.
Hearing on 20th December 2021
The applicant in this case was Mr G (via his litigation friend, the Official Solicitor). The respondents were the local authority and the NHS Trust involved in providing professional services.
Written evidence submitted to the court included updated statements from health and social services and an updated capacity assessment which confirmed that Mr G lacked capacity to conduct proceedings, and to make decisions in respect of care, residence and contact with his partner, Miss F.
Miss F was present via the remote platform for this hybrid hearing. (She had planned to come into the courtroom but Mr G was unwell so she had stayed at home to support a consultation with his GP).
Mr G was also present for most of the hearing, lying in bed behind Miss F. For the most part he declined to contribute formally to proceedings with the exception of admitting he had been drinking since leaving residential care and of asserting that he wished to remain living with Miss F.
The hearing consisted of two parts. The first part (which took up 3.5hrs of the hearing) addressed longstanding allegations that Miss F had engaged in financial and physical abuse against Mr G. I blogged about this here. The judge wound up this part of the hearing by concluding “I exonerate her from the allegations…I will proceed on this basis that none of the allegations against her have been substantiated”.
The second part of the hearing was relatively straightforward and lasted just over an hour.
Mr G’s social worker who’d been keeping a close eye on the situation and had had lengthy conversations with both Mr G and Miss F, confirmed his written statement which recorded that, in his opinion, it was no longer safe to leave Mr G in the community.
Mr G had been drinking heavily, including spirits, and Miss F was not able to stop him. The social worker commented:
“He is a risk-taking person and it is part of his integrity to do what he wants to do” [Mr G has made clear he believes that] “nobody has the right to tell him when to have a drink, neither the judge, not the local authority. This is consistent with his wish to be fully independent and his view of himself as an intelligent person who knows exactly what is best for him.”
Miss F, for her part, confirmed that she had read the social worker’s report which she characterised as “frank and in depth”, adding “he is being restrained and considered in what he says”. In a poignant statement to the court she said:
“I’ve been massively disappointed with what has happened since 21stOctober [2021] [the date at which the injunction against Miss F was lifted and she became central to supporting Mr G living in the community].…
He and I were very positive leaving the hearing – there was so much promise and optimism.
He didn’t come home over that weekend. It was a trial period, wasn’t it. I found out on the Monday evening that he’d been drinking spirits during the day.
I’m in a difficult position because I am present [here with him here]… It is a position of both power and treachery that I’ve been put in, but I don’t think there’s anything to be gained by covering up. After making those undertakings [not to drink] to you [the judge], to me, to himself on Thursday and knowing how close he’d come [to going back into care immediately] I couldn’t believe he was drinking by the Monday.”
Attempts to tease out why he was drinking had left Miss F with the impression that, quite apart from liking the taste and effect of alcohol, it was also part of “thumbing his nose at authority”.
Miss F’s previous alienation from the professionals (so evident in the October hearing) seemed to have been replaced with more of a sense of common alliance with them (albeit with deep regret). At one point, for example, she referred to the social worker’s “astute” observation about how Mr G’s behaviour changes, adding “he wears people down” (before carefully noting that she recognised that the social worker had not said that – but that was part of her experience).
The change in attitude was particularly noticeable in how she spoke about the expert who has assessed Mr G’s capacity in 2019, and again, for this 2021 hearing. Miss F had previously been very critical of this particular expert, resisting the court’s request that he should carry out an updated capacity assessment on the grounds that his 2019 report was “full of errors” and “I have grave concerns of his impartiality’” (speaking at October 2021 hearing). However, this time she read his latest report as “illuminating”. She commented, for example, that the report helped to highlight that Mr G’s “premorbid high-level intelligence and eloquence masks a lot of things”.
The judge’s decision: “everything has been tried that can be tried”
After hearing all the evidence, HHJ Tindal took care to take responsibility for the decision. I was struck, for example, by the following exchange
Judge: “Miss F. I am NOT going to ask you whether you could look after him and keep him safe. You can tell me what you want to tell me, but it seems to me that I am in a position to grasp the nettle without you having to be in that position.
Miss F: He is seeking it [alcohol] every day. I am not abandoning him. I am not going to do that. But he can’t have this sword of Damocles hanging over him. I’m not a psychiatrist. He’s got a phenomenal memory, of course he can remember what he’s promised – some of it is dementia, some of it is addiction….[But] I believe the head can rule the heart. But I can see him going downhill. But I am not going to abandon him. I would be happy to surrender him, not have a relationship, to have him live in the community. But I don’t believe he can live on his own. He pushes boundaries too far.”
The judge then asked Miss F to invite Mr G to return to the room (he had walked out a little earlier). The message came back from Mr G that he would not come back and to “F off’. (His demeanour during this hearing was in stark contrast to how he had comported himself at earlier hearings where I’d noted the pains he took to present himself as courteous, reasonable and respectful of the court process).
With clear regret, HHJ Tindal then summed up the situation: “I’ve always tried to strike a balance between autonomy on the one hand and protection on the other” he said, “but I find myself driven to admit defeat”.
Highlighting the huge risks that drinking posed to Mr G’s life given his specific health conditions, the balance, he said, now came down in favour of protection.
“In fairness to every single professional, everything has been tried that can be tried and Mr G is not safe to live in the community…With sadness and a great degree of thanks to the huge patience shown by the professionals and Miss F in this case, [I have to admit] that my efforts have not worked. It is not in his best interests to remain in the community. It is in his best interests to return to [care home]…The current situation is untenable. It is not safe. It must now end.”
He approved a draft order for Mr G to be conveyed back to the care home as soon as possible.
Reflections
So, Mr G will return to the safety of residential care, where he will no doubt continue to rage against his incarceration, but there will be a suitable infrastructure to help him manage his precarious health condition. The question one is left with, of course, is, as Munby J famously said: “What good is making someone safer if it merely makes them miserable?” (§120 in Local Authority X v MM & Anor (No. 1) (2007). What weight should be given to autonomy versus protection? This is a huge challenge for the courts and one which any of us may face when thinking about our own future, or the future of family members.
Regardless of the outcome, however, I am confident that no effort was spared by the judge in attempting to ensure that Mr G was not deprived of his liberty without due process. It is also clear that considerable energy was put into trying to create the infrastructure to allow him to live ‘independently’, in the way he wanted.
I felt for the district nurses and care workers involved and was also impressed by the measured evidence from Mr G’s social worker which reflected a clear commitment to his client and thoughtful attempts to navigate the ‘volatile relationship’ Mr G had with Miss F.
The investment from the health, social care and legal services (and, of course, from Miss F) is all the more striking in midst of a pandemic – and I suspect Mr G accessed far more resources than some other people with comparable incapacities, and equally strong wishes and feelings, are able to mobilise.
The series of hearings I attended about Mr G demonstrates the complexity of trying to support people who lack capacity to make a decision but have strong wishes, and/or a strong sense that this decision should belong to them – that they should properly have the right to make it themselves.
Mr G’s tragedy (given that he is subject to the Court’s balancing of autonomy and protection) is that he is passionate about his own liberty and ‘independence’ but appears to lack insight into, or the ability to control, the behaviours which threaten his freedom.
Jenny Kitzinger is Professor of Communications Research at Cardiff School of Journalism, Media and Culture. She also co-directs (with Professor Celia Kitzinger) the Coma and Disorders of Consciousness Research Centre and runs online training for healthcare professionals about law and ethics. She tweets @JennyKitzinger
Photo by Joshua Hoehne on Unsplash
Promoting Open Justice in the Court of Protection 
From Eleanor Tallon, Best Interests Assessor (Specialist in MCA & DoLS)
Very similar to a person I worked with (as BIA) who raised a section 21A challenge. P also had Korsikoffs and was very clear about his wishes, he had been assessed to have capacity in relation to some areas of his care plan, though (as I’ve learnt with frontal lobe damage), his capacity to understand risks around his behaviour and the overall scale of his care needs, was lacking on a performative basis.
Overall, his moments of clarity were greatly overshadowed by times when he did not display full insight into the reasons he needed the level of continuous support he had in place.
The DoLS remained authorised, along with the condition I had recommended; that arrangements with the LA were facilitated so he could be supported to regularly go out to the pub (or his place of choice). It’s so hard to strike the right balance of autonomy v protection, particularly in the context of limited resources.
But even if someone is deprived of their liberty (and it’s necessary & proportionate), there are ways in which personal freedoms, choice and autonomy can and should be promoted. So if protecting someone ‘merely makes them miserable’ I guess it’s unpicking how they can experience some happiness in their life, whilst still being subject to the shackles of protection.
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Thanks for commenting Eleanor – interesting to hear of your experiences with a similar situation, and yes, I very much hope the care home can ensure some happiness, although partly it seems that he was in the past complementary about the care home staff – but found the incarceration itself distressing in principle
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