Improving P’s quality of life pending a s.21A change in residence

By Celia Kitzinger, 28th October 2022

The person at the centre of the case (I’ll call him “Peter”) is a 71-year-old man who is held against his will in a care home that is not meeting his needs.  

It’s a Section 21A deprivation of liberty case (COP 13825795) before Her Honour Judge Buckingham, sitting (remotely) on 20^th October 2022.

Peter was in court throughout.  He is “deeply unhappy”.  He conveyed his distress and frustration very articulately

Before moving to the care home,  Peter lived in a guesthouse by the sea, with support from a personal assistant, the (clearly wonderful) “Jennie”, described by the Official Solicitor as “a positive supportive influence to which [Peter] responded positively and willingly”. 

Apparently, the previous placement broke down for reasons associated with his alcohol consumption, which is why he is now in the care home.

A psychiatrist assessed Peter and reported that he had severe cognitive impairment as a result of alcohol damage and in February 2022,  the judge made declarations that Peter lacks capacity to conduct these proceedings, and to decide where he lives or what care he receives.  So he’s now deprived of his liberty in accordance with a Standard Authorisation.

But Peter hates the care home.

Since he’s been there his alcohol consumption has increased and from what I heard it sounds as though there’s been virtually no support available to him with managing his alcohol habit. He’s also smoking 20-40 cigarettes a day, which means nearly £200 every week spent on cigarettes and alcohol.

He is increasingly desperate to leave the care home and to return to the seaside town where he lived before.

There was a litany of complaints and concerns about his current placement, raised both by P in person and by the Official Solicitor on his behalf – all of which the judge took very seriously. They include:

• Peter is not allowed to go out (or “access the community” in DOLS-speak) as often as he would like. His son suggests he’d enjoy museums, art galleries and the cinema, as well as the park, shops and sauna that he is occasionally able to visit. 
• He doesn’t get the opportunity to exercise (“a rabbit in a cage gets more exercise than I do”).  He says he wants to go for brisk walks in the fresh air, do some jogging and swimming.
• In part his lack of access to the community is because he’s assessed as needing 2:1 support – which causes practical problems due to staff availability and is tied up with funding issues.  (Peter tells the judge, “I have to ask permission to go across the road and it’s always ‘oh we’re too busy’ or ‘we’re short-staffed today’”).
• So, Peter is confined to the care home for much of the time and there’s nothing much for him to do there.  Asked by the judge about what activities the care home offers, the social worker volunteers only cooking and baking, watching TV and a garden area to sit out in. As the judge says, “not a wide range”.
• He’s lonely and bored. “Why take Jennie away from me and give me school-leavers, which some of these people are, who are only interested in watching Coronation Street and talking about their last boyfriend? They don’t give tuppance about me or anyone else in that building”, says Peter.
• There’s some dispute as to whether or not Peter is receiving the alcohol allowance authorised by the judge, and how it is paid for.
• Peter says items have gone missing from his room: expensive trainers, pinstripe suits, a watch (“even toothbrushes, would you believe!”).
• Nobody will support him to go to the bank to withdraw money (he has a private pension), but without access to his account, “I’m penniless. I can’t even buy a bar of chocolate”.
• There’s no chair in his room: According to the position statement by the Official Solicitor, “The Care Home refused to provide this stating it was not standard issue and they would not be able to provide one. The [LA] therefore confirmed they would pay for a chair however one has still not been provided”.

Peter uses the language of incarceration (his room is a “cell”; other residents are “inmates”) to underscore how strongly he feels about his deprivation of liberty. 

He asked the judge:  “What am I being charged with and what is the allegation because I’ve not been told.  I’m on an open-ended sentence. I’m now into 12 months and it’s still an open-ended situation and I haven’t been charged with anything.” 

The judge explained:  “As I said last time, this is not a criminal court. I’m not a criminal judge and you are not facing any criminal allegations.  I know it feels like prison to you, but you are not at your current placement because of any criminal charges. […]. I know it feels like a prison to you, and you’ve told me how despondent you are.”

The plan, as the judge explained to Peter, is to investigate whether and how he might be able to return to the town where he lived before, with an appropriate package of support. 

The judge was hopeful that this could include Jennie (and her partner Tony) as “Shared Lives” carers. Assuming it works out, there’s a 2-3 month checking process and some training before Jennie and her partner can become Shared Lives Carers.

At the hearing I watched, the lawyers were: Jill McCurdy of Ramsdens Solicitors, representing Peter (via the Official Solicitor); Simon Batt (the in-house solicitor representing the City Council, the first respondent); and Barbara Green of Spire Barristers representing the County Council, the second respondent). Peter’s social worker was also in court.  

Peter’s son and daughter, the third and fourth respondents, support his wish to move out of the care home. The son was present and spoke on behalf of both of them.

I’m not sure why Jennie wasn’t in court – or whether she’d been offered the opportunity to be present.  Given her past relationship with Peter as his personal assistant, and her possible future relationship as his Shared Lives carer, her involvement in court might have helped with sorting out the miscommunication and disputed facts of the case. 

The judge patiently worked through all the concerns, trying to untangle what the problems were on the ground and work out how to ensure things moved forward more smoothly. 

The hearing took nearly three hours – in part because a fire alarm went off in one of the advocates’ buildings, which meant the hearing was forced to adjourn for about half an hour. It continued until 4.50pm, with the judge reassuring Peter at one point that she had “plenty of time” to hear him out.

Supporting Jennie’s involvement with Peter

“Let’s start with the positives”, said the judge, turning to the fact that the assessment process for Jennie and Tony had begun.  She wanted to know if the organisation assessing them had experience “in assessing people for supporting those with a chronic alcohol habit” and emphasised that Jennie and Tony would need external support.  It shouldn’t be allowed to fail for lack of external support.

Pending the completion of the assessment and possible move, Jennie is willing to visit Peter on a weekly basis for four hours, subject to funding being agreed for her to make such visits on an hourly personal assistant rate, together with travel expenses.  The local authority has agreed to fund this. 

The Official Solicitor supports visits from Jennie and Tony:  “such an arrangement would not only enhance [Peter’s] happiness and day to day living arrangements but would also serve to test out the potential placement by contributing to the assessment giving valuable insight into the viability of them as Shared Lives Carers”. (Official Solicitor)

But it emerged that, a few days earlier, Jennie had travelled from her home to the care home (some distance by train) to see Peter, “only to find she wasn’t allowed to go out into the community with him, despite the role she’s played in his life previously. How did that happen?”, asked the judge.

The social worker responded by saying that it hadn’t been agreed that Jennie’s visits to Peter should begin yet: “The discussion we had was about exploring the option, not about it actually being implemented at that moment in time. We have to follow the process.  We have a process.”   

There was disagreement about whether it had, or had not, been agreed, and who had informed whom – and the judge emphasised the importance of “better communication”.

“Can that be done quickly,” she added, “because every day that Peter is left feeling, as his son says, ‘aimless and drifting every day’, it’s a vicious spiral in terms of him becoming less receptive to advice.”

There was also some uncertainty about the duration of the visits.  The son said that Jennie and Tony were willing to “spend six or seven hours on a quality day out” with Peter, even if they were only paid for four hours – but the judge made clear that these visits should be limited to  four hours for now “to allow that to bed down”, and the duration would be increased if the visits were successful.

Issues that need to be resolved and understood between everyone include: what time Peter will be collected, how much alcohol he’s already consumed by that point and how much he’s allowed to consume during the visit, how long he will be out of the care home for (a maximum of 4 hours), and what time he will return.

“I’m disappointed that hasn’t happened already”, said counsel for Peter via the Official Solicitor.  “It’s what the previous order provided for, for a Contract of Expectations to be prepared.  I would ask [the social worker] to ensure that her communications are clear…. I invite a Contract of Expectations as a document everyone can share, including Peter himself”.

Alcohol consumption

At a previous hearing the judge had authorised alcohol consumption for Peter.  He was to receive 30ml of whisky (with lemonade) at one-hourly intervals, on twelve occasions, from 7am onwards each day – which amounts to between 84 and 90 units of alcohol per week (the recommended maximum is 14 units).

There was some confusion and disagreement about whether or not the local authority was responsible for buying Peter’s whisky.  Peter’s son thought that was so, on the grounds that alcohol was “medically required”. 

The judge explained the current situation to Peter’s son like this: “I was very reluctant to authorise this.  It’s a ticking time bomb to continue to provide alcohol at this level and it’s storing up problems in terms of liver sclerosis, heart disease, stroke etcetera.  But given the costs of care, your father would literally have no money to buy alcohol at all, which would put him at risk of seizures. On that basis I authorised the plan, and it was agreed that the costs of your father having that level of alcohol would be disregarded for the purposes of care. So, the local authority is indirectly funding it.  Their position is ‘we will not provide the funds for it, but we will not enforce our right to take funding from his assets when we would ordinarily be entitled to do so’.”

There has still been “no proper medical information” about Peter’s alcohol use.  The judge said: “A GP appointment hasn’t happened, and I don’t know why. There are mixed accounts of why it hasn’t happened.”  A referral to an organisation that supports people with drug and alcohol issues also hasn’t progressed.

There was also a disagreement about whether in fact Peter was receiving alcohol in accordance with the plan the judge had authorised. The care home says he is.  Jennie and Tony had reported he wasn’t – although their version likely comes from what Peter tells them and is not an independent account.  Peter’s son cited the Care Quality Commission report about the care home  from a couple of years ago and said he was concerned that the care home records are unreliable and inaccurate. Although the son was generally measured in how he spoke, he was very critical of the care home (and the social worker) – and the judge pointed to “a great deal of mistrust here between the family and the care home”. 

Peter’s son suggested that his father should be invited to sign and date the care home records: “it would give them more credibility”. The judge agreed that Peter could be invited (but not required) to participate in the care home records – and also that if there is any disruption in dispensing the alcohol that they should contact the social worker immediately.

There was also some discussion of obtaining an expert report on the matter of Peter’s drinking – and of addressing his back pain because “that means he uses alcohol as a mitigator”. It seemed agreed that “Jennie is the best chance of that engagement being successful”.

Money

The Official Solicitor reported that Peter is “preoccupied with the worry that he is owed money and he does not know where his money is going or how it is being spent. It does not appear that the [Local Authority] or the Care Home are acting in a way consistent with the ethos of the Mental Capacity Act by supporting [Peter] in a way which empowers him to access his own financial arrangements and have as much control as possible in respect of the same.”  It appears, said the Official Solicitor, that Peter’s efforts to engage with his own financial concerns have been “thwarted”. Not being able to access his funds “causes him daily distress and agitation”.

The social worker’s view was that he didn’t need to access his funds:  “I believe he fails to understand and appreciate there is no reason for him to do this given that [the LA] have been appointed as DWP benefit appointee”.  

The Official Solicitor says “this represents a significant misunderstanding of the situation”, since Peter has a private pension in addition to his state pension.

The judge asked how quickly Peter’s bank statements could be made available to him and there was a discussion about mini-statements from a hole in the wall, or bank statements online, and whether paper statements are still available and how to get them.

There was also talk of a capacity assessment for Peter’s ability to manage his own money, and the possibility of appointing his son (and maybe also his daughter) as Finance Deputies.

A chair for Peter’s room

It’s been promised. It’s on order.

Missing Items 

“It’s important when someone raises a complaint that even if it is a misunderstanding on their part that it is fully investigated.  When Peter moved in there will be an itinerary of his possessions and it will, or it won’t, include expensive trainers, pinstripe suits and a watch.  And if they were on that list, what has happened to them?” (Judge)

Exercise and activities in and from the current care home

One way of enabling Peter to get out more, go for walks, swim etc is for him to be permitted to go out of the care home with 1:1 staff ratio, rather than the requirement that he has two members of staff with him at all times, as at present.  Another way is to leave the 2:1 in place but for the local authority to increase Peter’s entitlement to staff time.

Judge:  What power do I have if the care home say they are not prepared to let their staff go out one-to-one?

Counsel for the LA: The court has no jurisdiction.

Judge: So I could say 2:1 is not proportionate or necessary but then the care home would give notice.

Counsel for the LA: That’s the reality.

Judge: And then they’d say ‘good luck to you, if we give notice, finding somewhere else’!

Having explored the activities available to Peter inside the care home the judge said: “There aren’t many opportunities available for him here – cooking, baking, sitting in the garden, watching TV. There’s not much mileage in it.  It’s very much to Peter’s credit that he wants to exercise, when the rest of us are all encouraged to exercise more than we do.  It must be a priority. … Are there Personal Trainers who work with elderly people with cognitive impairments?”  Nobody seemed sure. 

Counsel for the LA suggested looking for alternative placements other than in the coastal area to which Peter wants to move.  But the judge wanted something done now. She asked the LA to “think urgently and laterally about how [Peter’s] circumstances can be improved.”

A new placement

The search for a new placement is ongoing

Peter:  If it ran smoothly and to course, what time scale are we looking at?  I’ve served 12 months now […] I’m working my time now. I could have put a brick through a shop window and I’d be home by now.”

The next hearing is in April 2023.

Reflections

Until I started watching Court of Protection hearings two-and-a-half years ago, I had no idea that hearings like this happened.  But they’re quite common.  

This hearing was labelled “CMH” on the listings: it stands for “Case Management Hearing”. Their purpose is to review the case, and check things are moving along towards what’s needed for the final hearing.  In case like Peter’s, where the protected party is unhappy in their place of residence, judges often use the opportunity to try to improve P’s circumstances in the interim.  

Case management hearings generally seem to involve less by way of complex law and legal argument, and more by way of judicial application of common-sense and  leadership skills. They try to get people to talk to each other, to try to get health and social services working together, to explore what needs to be done next, and generally to provide oversight of the way individual cases are being managed.  I wish it didn’t need a court hearing to do this, but the brutal reality is that it does.  The prospect of being in court and accountable to a judge seems to focus practitioners’ minds.  A lot of activity seems to take place in the day or two before a hearing to move the case along.

HHJ Buckingham did her very best to ensure that Peter’s quality of life improves over the next few months before the next hearing.

Given the lack of progress between the last hearing and this one, I don’t know how successful her efforts will turn out to have been.

Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project.  She tweets @kitzingercelia