Celia Kitzinger, 5th December 2022
This is the fifth Court of Protection case I’ve observed about someone with hoarding disorder. (Take a look at my previous blog post: “A case of hoarding” which describes plans to return a person home with safeguards in place to keep her safe.)
The woman at the centre of the case I’m reporting on today is 82 years old, with both dementia and a hoarding disorder,
She’s now in a care home under an urgent order which expires in two days’ time, and she wants to return home.
The case (COP 14017786) was heard remotely before Mrs Justice Morgan, sitting in the Royal Courts of Justice on 22nd November 2022.
Until October 2022 she’d lived in a care home, but then decided to return to her home – which was “dilapidated and in a dangerous state”.
She was thought to have the capacity to make this (clearly unwise) decision, and the local authority worked with her to try to keep her as safe as possible.
Everything came to a crescendo last Thursday with a (third) forced entry into her home, due to a smell of gas. She’s been using a butane gas cylinder to cook on.
She was admitted to hospital to be assessed for gas poisoning and made it clear that when she was discharged she would return home.
The local authority made an urgent out-of-hours application to convey her to a care home on discharge. That was approved and she was discharged from hospital last Friday to a care home where she is reported to be “relatively settled, but is clear that she would like to return home”. It turns out that’s not going to happen (if it happens at all) before the end of January 2023.
Both lawyers (one for the protected party, one for the local authority) emphasised that she is “very articulate” and that “the capacity issue is not straightforward”.
What’s needed now is a capacity assessment from an independent expert to determine whether or not she has capacity to make this decision for herself. Counsel had hoped to appoint Professor Paul Salkovskis from Oxford Health NHS Foundation Trust who runs a national specialist clinic for hoarding and had been instructed in another case of hoarding earlier this year, Re: AC and GC (Capacity: Hoarding: Best Interests) [2022] EWCOP 39. But it seems as though he’s not available and they hadn’t yet located another expert
The case in which Professor Salkovskis was instructed earlier this year had some very similar features. it concerned a 92-year-old woman referred to as “AC”, also with both dementia and hoarding disorder. She had been moved to a respite placement whilst the poor sanitary conditions and other hazards identified by professionals (including electricians and the fire services) were dealt with and she clearly and consistently expressed the wish to return home. The judge in that case authorised a trial for AC to try living at home. I don’t know how it worked out – but it was clear from the agreed statement of legal principles in that case law is very much on the side of honouring, where possible, a protected party’s wishes to live at home. This extract is from Appendix 3 of Re AC)
In Re GC [2008] EWHC 3402 (Fam), Hedley J considered whether it was in the best interests of an elderly man to be discharged from hospital to the home where he had lived for many years and commented at para 21:
‘GC is a man in the 83rd year of his life and my concern is to ask myself: how will he most comfortably and happily spend the last years that are available to him?…. Next it seems to me that for the elderly there is often an importance in place which is not generally recognised by others; not only the physical place but also the relational structure that is associated with a place …’
In connection with the issue of a ‘trial’ placement, Hedley J commented at para 24:
‘It seems to me that it would be wrong not to try, even with a degree of pessimism, a placement with a package of support’
The decision of District Judge Eldergill in Westminster City Council v Manuela Sykes [2014] EWCOP B9 is of relevance:
‘several last months of freedom in one’s own home at the end of one’s life is worth having for many people with serious progressive illnesses, even if it comes at a cost of some distress. If a trial is not attempted now the reality is that she will never again have the opportunity to live in her own home’
and that
‘although there is a significant risk that a home care package at home will ‘fail’, there is also a significant risk that institutional care will ‘fail’ in this sense (that is, produce an outcome that is less than ideal and does not resolve all significant existing concerns)’
Mr Justice Hedley held in P v M (Vulnerable Adult) [2011] 2 F.L.R. 1375, at para [34]:
“I am very influenced, rightly or wrongly, but it is only right everyone should know it, by the timescales in the case. I am very influenced by the desire to allow people where it is at all possible to spend their end time within the family rather than in an institution, even if there are shortcomings in terms of care which an institution could address.”
Where (as here) there are serious risks attached to returning home, the court has:
“…confirmed that its function in challenges such as this can be to take decisions on behalf of P that public authorities feel are too risky for them properly to be able to take themselves, and that it is perfectly appropriate that responsibility for the outcome should fall on the shoulders of the court (Re M (Best Interests: Deprivation of Liberty) [2013] EWCOP 3456, Peter Jackson J (as he was then) at para 41)”. (Appendix 3, Agreed Statement of Legal Principles, Re. AC & GC)
I hope the 82-year-old in this case will have the opportunity to try living at home again, with the right support in place. It may be, of course, that she has capacity to make that decision for herself.
The next hearing – at which these matters will be decided – will be on (or around) 30th January 2023 at First Avenue House, London.
Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She tweets @kitzingercelia
Note: The facts of this case are as accurate as I could make them on the basis of the hearing (which included a helpful opening summary). However I have not received Position Statements from either party, nor have I received a Transparency Order, despite my requests.
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