By Celia Kitzinger, 8th September 2022
Mrs H is an Irish national. She moved to England from Ireland about six years ago to live with her daughter. She was subsequently admitted to an assisted living facility in the same city as her daughter’s home, and then (when that broke down) to another care home in England. She “adamantly” wishes to return to her native Ireland.
Mrs H has Alzheimer’s Disease (diagnosed after her move to England), as well as hypertension, heart failure, and hearing loss (she wears hearing aids). She also has a skin condition – and is refusing treatment for it. She’s been assessed as lacking capacity to make her own decisions about residence and care.
The court hearing was to oversee the process of investigating what care home options would be available to her in the Republic of Ireland, so that a best interests decision can be made on her behalf about a potential return.
The hearing (COP 13488785) was before His Honour Judge Paul Mitchell on 30th August 2022.
Transferring P from one country to another
There have been several previous cases covered by bloggers on the Open Justice Court of Protection Project concerning best interests decisions about moving P across national boarders.
Sometimes the wish to return to a country of birth is motivated – wholly or in part – by the desire to return to family.
In the blog post, “Returning P to her family abroad during a global pandemic, aspiring barrister Ravina Bahra reports on a case in the Royal Courts of Justice. 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, her country of origin, to be with her family. This is “a wish on which she has never wavered”. The case was heard at the end of January 2021, when the COVID-19 pandemic was causing major problems for international travel. Mr Justice Hayden approved the application for her to move back to Poland, saying that he had “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”. (The judgment is available as Re UR  EWCOP 10).
In the blog post, “Should P go to live with her family in her country of birth?”, consultant psychologist Claire Martin describes a case concerning an 87 year old woman, living in her own flat following a successful s.21A application. She was articulate in court about her wish to move overseas to be with her family.
In another case there was family dispute: one daughter had moved P to live with her in a European country, and another daughter was contesting this. The hearings were reported over three blog posts (A mother abroad and a family dispute Part 1: A mother abroad and a family dispute – Part 2 ; A mother abroad and a family dispute: Part 3) by social work academic Kirsty Regan and legal blogger Daniel Cloake aka @MouseInTheCourt).
Sometimes a family’s desire to relocate P to a different country is motivated by the “threat” of life-sustaining treatment withdrawal (e.g. “At loggerheads”: Habitual residence, best interests and life-sustaining treatment”). Even in these cases, family members may disagree, as did P’s family of origin and P’s wife in the case I blogged twice: “He’s Polish: Challenging reporting restrictions” and “Faith, Science and the objectivity of expert evidence”.
A transfer from Ireland to England (the reverse of the situation in the current case) lay at the heart of the hearing blogged by (then) PhD researcher Adam Tanner in From Prison in Ireland to Care Home in England.
The fact patterns of these hearings were very different, but each of them raised complex inter-jurisdictional issues and the need for cooperation between health and social care authorities in different countries, as well as complicated arrangements for the actual transfer.
It was intended to hold this hearing by MS Teams but this was stymied by an electricity failure in the judge’s locality about 12 minutes into the video call, before the hearing had really got going. After the judge tried and failed to join the MS Teams hearing b first by video and then by phone, the video-call was ended and a telephone conference call set up. (The hearing proper started about 40 minutes late as a result.)
Counsel for Mrs H gave a useful opening summary, explaining that the case had already been before the judge “on a number of occasions”, and that Mrs H is an Irish national currently deprived of her liberty under a standard authorisation that expires in January 2023. She wishes to return to her native Ireland. Section 21A proceedings began in June 2020 and “over the course of 18 months we have attempted to secure her return to Ireland or look at alternative accommodation options in England”.
In many of the cases we’ve reported on before (see links above), P’s wish to return to their country of origin has been motivated by a desire to be with family. In this case, no relatives were mentioned except for the daughter in England, to whose home Mrs H had moved on relocating from Ireland Ben Conroy said: “The daughter had a successful visit with Mrs H in the last few weeks, but we understand this was the first visit in over 6 months”. So, Mrs H would be leaving family to return to her native land.
Two potential nursing care homes have been identified – but neither is in the county to which Mrs H has specifically said she wishes to return, and where she used to live. There are no dementia-specialist units in that county. The social worker is extending her search to see what can be located.
There’s also a difficulty with the Irish authorities. According to counsel for the Local Authorities: “The Irish Authorities appear to have viewed any suggestion that [Mrs H] return to Ireland negatively” (from position statement). In court, counsel for Mrs H said that their approaches to care homes in Ireland “have fallen rather flat. We need to- and I don’t mean this in a derogatory way – we need to ‘sell’ [Mrs H] to care homes. We’re working on a ‘pen portrait’ to do this, which we can sent to referrals identified as potentially meeting her needs.” The judge subsequently referred to the pen portrait as “an attempt to (to use your phrase) ‘sell’ [Mrs H] as positively as one can to the care home”.
As I understand it, the problem is that Mrs H can be aggressive and resistant to care. There have been “difficulties in managing her behaviour”. She often feels “frustrated or upset” resulting in “verbal distress and threats of or actual harm to others”. She’s been hitting members of staff with her walking stick (“a recurrent event”) – and the Occupational Therapist is looking into the possibility of a wheeler-walker to replace it. I think I also heard reference to her having been banned from bars, pubs and shops. A couple of months ago the current care home served notice terminating her residence because of her behaviour, perceived as “detrimental to staff and other residents”. They’ve not enforced the notice.
There’s been a focus on her problems, and her behaviour towards staff, which make it “extremely difficult to convince another home to take her”.. Four potential care homes in the county to which Mrs H wishes to move “very clearly came back and said they could not meet her needs” (Counsel for Mrs H). “Actually”, he added, “she’s an extremely likeable, cheerful, happy, chirpy lady”. Moreover, “her wish to return to Ireland hasn’t waned in any shape or form”.
Counsel for Mrs H also reported having “approached the Irish ambassador in the UK and there was no response – on five occasions, including sending hard copies in the post. Nonetheless, I will approach the ambassador again to see what assistance can be offered, and invite him to the referral meeting”
The judge said, “If you’re getting no joy from the Embassy, I wonder about approaching the Irish equivalent of the Health Board, and also the local services – bodies that would be intimately involved if a referral to Ireland is made […]. If Mrs H is an Irish citizen, she’s got a right to return. The issue is what support she needs, and what services need to be in place when she’s there.”
The judge also suggested that “there’s a bit of a hint here, and I may be misunderstanding the problem, but of Ireland washing their hands of the situation. I may be being harsh”.
“You’ve hit the nail on the head”, said counsel for Mrs H.
There was some discussion as to whether or not there is any equivalent of DOLS in the Republic of Ireland, which would provide a legal framework requiring Mrs H to remain in any Irish care home to which she might be transferred. I understood not, and that a court order would be required, and also that Mrs H’s daughter would be likely to challenge any return of her mother to Ireland unless there is a provision equivalent to DOLS.
Counsel for the local authorities described it as “a surprisingly difficult situation”, adding “you’d think it would be relatively easy for someone to return to their native country”.
I’m not sure what order the judge approved since I didn’t have sight of it, but I think it included an ongoing search for Irish care homes suitable for Mrs H, an in depth review of support provided at the current care home (because she is likely to remain there for some time), and also a search for supported living options in England (although there is some concern about whether that will work, or be in her best interests). It seemed that, at the moment, a range of possible options are being explored in parallel.
It was agreed that the next hearing, with an update on all these matters, would be in mid-November – preferably as a video-hearing, assuming that works out next time!
As is so often the case with Court of Protection hearings, I’m impressed by the care and attention given to ascertaining and promoting the protected party’s wishes and feelings – and by the sheer amount of hard work that this entails from all the professionals involved.
Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She tweets @KitzingerCelia