By Celia Kitzinger, 3 June 2020
The quotation in the title of this blog is (as many readers will recognise) from a judgment by Munby J. In full, the relevant passage reads as follows:
A great judge once said, “all life is an experiment,” adding that “every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge” (see Holmes J in Abrams v United States (1919) 250 US 616 at pages 624, 630). The fact is that all life involves risk, and the young, the elderly and the vulnerable, are exposed to additional risks and to risks they are less well equipped than others to cope with. But just as wise parents resist the temptation to keep their children metaphorically wrapped up in cotton wool, so too we must avoid the temptation always to put the physical health and safety of the elderly and the vulnerable before everything else. Often it will be appropriate to do so, but not always. Physical health and safety can sometimes be bought at too high a price in happiness and emotional welfare. 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? I don’t think anyone cited this judgment, or the oft-quoted rhetorical question for which it is frequently remembered, in the course of the Court of Protection hearing I observed (COP 13744224, before DJ Beckley sitting at First Avenue House on 30th May 2022) – but it points to an important principle that lies at the heart of this case.(§ 120 Local Authority X v MM & Anor (No. 1) (2007))
Risk cannot be avoided completely. There are risks in detaining someone against their wishes to keep them safe, including risks to their self-esteem, sense of agency and dignity. And equally, there are risks to making a decision to facilitate a return home – particularly, in many cases, risks to their physical safety (Westminster City Council v Sykes (2014).
It is not uncommon for judges in the Court of Protection to decide that an outcome which presents significant risks to a person’s physical safety is still in their best interests, because it more closely accords with what the person wants.
This turned out to be one of those cases.
A contested hearing
I’d watched an earlier hearing in this case (also before DJ Beckley) on 3rd May 2022 – so just just under a month earlier – and blogged about it (with Anna) here.
T is in her nineties, a national of another European country, who moved to the UK as a young adult, married here but divorced over 20 years ago. Her only child, a son died, and she is not in contact with her daughter-in-law or grandchildren. She has no other family, but does have a core of supportive friends who speak her first language, including M – who she also appointed with Lasting Power of Attorney (both for health and welfare, and for property and affairs).
There is no disagreement that T lacks capacity to make her own decision about where to live. She cannot understand, retain and weigh the relevant information (s.31, Mental Capacity Act 2005) due to Alzheimer’s (“an impairment of, or a disturbance in the functioning of, the mind or brain”, s.2(1) Mental Capacity Act 2005). She also has type 2 diabetes as well as hypertension, osteoarthritis and spinal fractures.
Until August 2020, T lived in her own flat. After hospital treatment, she agreed to be discharged from hospital to a care home to see if she would like it.
It turns out she did not, and she started asking to go home within a few weeks.
Her attorney (M) approached the local authority (London Borough of Hillingdon) on 8th December 2020 to explain that T would like to return home.
Counsel for P
Christine Cooper of Field Court Chambers (instructed by Amy Butler of Atkins & Palmer as T’s Accredited Legal Representative) reported that T has been “clear and consistent in her desire to return to her home” for many months, and is now “extremely unhappy and distressed” about being compelled to live in the care home. There are also “serious concerns about the quality of her care” there, both from T’s legal representatives and from M as her attorney.
Despite it being confirmed more than six months ago that T’s flat is suitable for her to return to, and M having identified a suitable live-in carer, very little has been done to progress a trial return home or to consider any other options for T (said counsel for the applicant). Christine Cooper was very critical of the delays from the local authority, which has a “history of non-compliance” with orders, and had not prepared either the care plan or the transition plan it had been directed to produce for the court by the required deadline. Consequently, “the situation today is that the court does not have all of the evidence that it would normally have when making a decision about a trial return home”. Counsel for the applicant argued that, nonetheless, the court should make a decision today on the evidence it does have. T’s diabetes is stable, her medication regime is not complex and she’s compliant with it, district nurses will visit her home twice a day to administer insulin and can be alerted to any issues by M or by the live-in carer.
Counsel was mindful of the risks but submitted that “the court should not adopt an overly risk-averse attitude” and should say, today, that the trial of living at home should go ahead.
Counsel for Clinical Commissioning group
The Clinical Commissioning Group (represented by David Muana) also took the view that T “can be managed safely in the community… This is not a complex or unpredictable presentation that can’t be managed in the community”.
The Local Authority
The local authority considered the proposal for an imminent trial at home to be premature.
In the words of counsel for the local authority, Thomas Boden, it is “reckless for a move to take place” because“it may leave some of T’s basic needs unmet”.
The local authority raised a series of (what Christine Cooper called) “new hurdles” to T’s return home – including a request for a second carer to be identified in case of the illness of the nominated live-in carer, and “assurance of the competence and reliability of both M and the wider network of friends that it’s envisaged would step in to help T”. They also raised an “artificially obstructive requirement” (Christine Cooper’s words) relating to the administration of direct payment. With evident frustration, Christine Cooper said “it’s time for these obstructions – which have been a feature of the last six months – to stop getting in the way of T going home”.
For counsel for the local authority, a trial at home was, he said, “too great a risk to be borne”. The local authority wanted more time to ensure that T’s blood glucose monitoring would be done correctly at home, and that carers would have appropriate training and experience.
The judge reflected: “I’ve got a close friend – we went on holiday last week, a group of us – he’s diabetic and he tested his blood sugar four times a day and it seemed quite simple. Have I got that wrong?”
Thomas Boden reiterated that the issue was not just how to take readings, but also knowing when action was needed on the basis of those readings – which might include offering T juice with sugar, or tea with sugar (“it’s those things the carer needs to be mindful of”).
T’s close friend and attorney, M, was asked about her experience of testing T’s blood sugar levels and said: “T has suffered from diabetes for a long time. I’ve been helping her, and the district nurse trained me to do the testing and it is not very difficult. You prick the finger and put the blood in a small machine and measure it to see it if is down or up. When she was unstable with the sugar, we would call the district nurses or call 111. We approached it that way. It’s not difficult really”.
“Can’t they [M and the nominated paid carer] just tell the district nurse, who is going to be there twice a day?”, the judge asked Thomas Boden,
The local authority was also concerned about T’s ability to move around her home – not just steps in and out of her flat, but also “transfer” between seating and standing positions and using the toilet. But Christine Cooper drew attention to the fact that a test with stairs at the care home had shown that T could walk up a flight of 8 steps, without support, rest for five minutes on a chair at the top, and then walk back down again.
Counsel for the local authority said that he noted what had been said about “the need for this to keep moving” but that the local authority “cannot give firm timescales” – and they remained concerned that the direct payments had not been set up (so carers would not be paid), that “an ad hoc approach” was being take to T’s care being provided (in part) by her friends, that there was insufficient evidence that T’s blood sugar monitoring would be done correctly and remaining concerns about her mobility (citing an occasion when T needed support to get up from a chair, he said “a plan of care at home needs to be able to deal with T at her worst, not her best”). The local authority remained of the view that more time was needed to prepare for a trial return home safely.
In her submission to the judge, Christine Cooper said: “I strongly urge you to resist the temptation from the local authority to kick the can further down the road”. As she put it in her position statement, for someone in their nineties, time is of the essence.
DJ Beckley said he was “very disappointed that rather than providing a care plan and transition plan for me to consider and hopefully endorse, instead we’ve had this hearing this afternoon”.
Referring to s.4 of the Mental Capacity Act 2005, he said that any decision he made must be in T’s best interests. In so doing, “the magnetic fact in this case is T’s past and present wishes and feelings”. Her wishes, said the judge “are very clear, and have been clear for a considerable period of time, that she wants to return home”.
The judge recognised that a return home “will carry with it some risks” but considered these manageable and acceptable when weighed against T’s consistent wish to return home.
This reasoning has strong resonances with Munby’s judgment, quoted at the beginning of this blog:
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.(§ 120 Local Authority X v MM & Anor (No. 1) (2007))
Finally, DJ Beckley recognised the huge contribution made by T’s friend and attorney, saying he was “convinced that M is deserving of very great praise for the support she has provided for her friend” and is “confident that she and her friends will be able to provide cover” for any periods when the paid live-in carer is unavailable.
He made the order in terms of the draft order filed by Christine Cooper, ruling that T will return to her property on 17th June 2022, and at the next hearing the next hearing, just short of three weeks later, he will “consider everyone’s views on how successful that’s been”.
I hope to attend the next hearing, at 9.30am on 7th July 2022, and will report back.
Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She tweets @KitzingerCelia