Where shall P live?

By Celia Kitzinger, 16th March 2023

The person at the centre of this case, JF, is a woman in her early 70s with dementia and a delusional disorder. She’s living in a care home and she’s very unhappy there and would like to leave. This application was brought around nine months ago and the court needs to decide whether it’s going to work for her to go home, and if not, would she be better off in some other care home; and if not, can something be done to improve her lot where she is. These cases are very common in the Court of Protection. Questions like these are hugely important tasks for the judges of this Court, especially in relation to older people.  One issue in this case is whether she needs care in a specialist nursing home given (especially) her mental health needs.[i] (Ben McCormack, counsel for JF)

The applicant in this case is Mrs F herself, via her litigation friend, represented by Ben McCormack of Garden Court North – and this was his summary of the case at the beginning of the hearing.  

It is thanks to this lawyer’s keen awareness of, and commitment to, the needs of transparency that I’m able to quote this introductory summary, since the judge didn’t invite one. When Ben McCormack suggested “spending a few minutes sketching out the background”,  the judge simply said (rather discouragingly) “you must do as you wish”.  For any judges reading this – please realise that transparency means more than simply letting observers into the courtroom: we need to be able to understand what we’re observing, and without an opening summary that’s often difficult.

The judge, HHJ Simon Burrows, was hearing the case from home because he’s tested positive for COVID-19.  He apologised for the “slightly odd backdrop”: instead of a courtroom, he’s seated in what looks like maybe a spare bedroom, with deep blue floral wallpaper. He doesn’t show any signs of not feeling well.

The two respondents are Cumbria County Council represented by Judith Nailer and Mrs F’s sister who is a litigant in person.

The case (COP 13948314 on 9th March 2023) is a s.21A challenge brought by Mrs F against her deprivation of liberty in the care home.

Issues before the court today

This is a ‘case management’ hearing.  The court won’t decide today where it’s in Mrs F’s best interests to live.  What’s happening today is (mostly) making sure that the necessary information is obtained in order to make that decision in the future – including what Mrs F’s options are. 

Nobody is arguing that it would be in Mrs F’s best interests to return home – she simply couldn’t be safe there.  The question is whether it’s in her best interests to stay in the familiar environment of her current care home, or whether she would be happier in another care home – although “one of the problems in Cumbria – and in other areas of the country too – is lack of availability of care homes” (says her counsel).

And there’s another problem too.  The Trust (Cumbria, Northumberland, Tyne and Ware NHS Foundation Trust) is not a party to the case, but they are are jointly responsible, along with the local authority, for Mrs F’s accommodation and support package.  They have provided a statement to the court saying that Mrs F needs to be in a nursing home (i.e. a residential care facility that has on-site nursing care available). 

Mrs F’s representatives don’t agree that she needs a nursing home. Although she’s currently on the nursing floor of the care home she’s living in, her needs are much lower and less complex.  She’s able to do many things for herself and is physically very well.  She recently walked with her sister for about a mile (unaided) on a trip to a local beauty spot.  Her solicitor has reviewed her day-to-day records and can’t see any reason for requiring her to live in a nursing home.  Her legal team wants further information about why the Trust is saying that she needs nursing care – and the Trust (which would prefer not to be joined as a party) has said they will provide information within 14 days about that.  

Counsel for Mrs F is concerned that limiting the search for an alternative residence to nursing homes will greatly restrict what’s available.

You might think ‘what’s the benefit to Mrs F of moving to another care home when she’d like to live at home?’ She’s not interested in living in another care home. But if she can’t go home, her sisters think if she lived in a more rural area, with a garden she could help to tend, she would be happier.  In not quite such an urban landscape as her current home, where she’s confined to the upper floor of a care home, with another resident who – as a result of his own mental impairments –  make a  lot of noise that she finds disturbing and upsetting.  At the moment, her sister says, she has “no quality of life”.  This is a woman who led walking groups for much of her adult life, loved the outdoors, loves gardening and has found great-   what in modern parlance we’d call ‘well-being’ in those things, but really they are things she enjoys doing and has found in them great joy and solace.  So, even if at the minute she can’t see the benefit of a different nursing home – she’s fixated on ‘I’d just like to be back in my own home please’ (no disrespect to her),  but parties are agreed it’s definitely worth a try. To do that, we need to see if there’s somewhere else available and it  would greatly assist to be able to interrogate the Trust more and ask them ‘what are P’s needs that require a nursing home?’.  And the Trust answer will be what it is. That will be their professional opinion.”

Mrs F’s sister has identified two potential homes on the Cumbrian coast that she thinks would suit her.  There are often difficulties when moving patients with dementia from one care home to another, but Mrs F’s sister said in court that if she can move some of Mrs F’s furniture and possessions into her room before she moves into the new placement, she may settle in much better, perhaps believing it to be her own home.  (She’s refused to have her own belongings brought into the current care home because she doesn’t wish to stay there.)  But it seems the new placement possibilities won’t work if a nursing home (rather than a care home without a nurse on site) is what the Trust says is required.

Meanwhile, her legal team is asking for steps to improve her lot where she is – for  help to get her out and about, gardening, walking, “breathing in a bit of fresh air”. Counsel reported that Mrs F has not been offered any outside activity recently and, when asked about this, a member of staff at the care home said ““we might do that when the weather improves”.  This demonstrates, said counsel, “a poverty of ambition” for Mrs F.  “People who like to go walking don’t wait ‘til the weather is nice – they put their boots and coats on and go out in it!”.  And Mrs F has some money of her own that her deputy can put towards one-to-one support for trips out into the community.

The next hearing is listed for 3rd May 2023.

Celia Kitzinger is co-director of the Open Justice Court of Protection Project.  She has observed more than 400 hearings and is a frequent blogger.  She’s on LinkedIn and tweets as @KitzingerCelia

[i] The court is making decisions about JF’s best interests because it has already been declared (I see from the position statements) that she lacks capacity to make this decision for herself.  She does not understand that she has dementia, nor the risks that her dementia causes her, nor how her current residence and care arrangements help to keep her safe.  This quotation from the court hearing is, like others in this post, as accurate as I can make it given that we are not allowed to audio-record hearings.  

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