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England and Wales Court of Protection Decisions
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Cite as:  EWCOP 25
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Neutral Citation Number:  EWCOP 25
Case No. 12259552
IN THE COURT OF PROTECTION
IN THE MATTER OF THE MENTAL CAPACITY ACT 2005
AND IN THE MATTER OF LC
First Avenue House,
42-49 High Holborn,
London WC1A 9JA
District Judge Eldergill
BEDFORD BOROUGH COUNCIL
- and -
Mrs C (by her litigation friend, the Official Solicitor)
- and -
Heard on 6, 8 and 9 January 2015
Judgment handed down on Friday 13 February 2015 at 4pm
1. The proceedings concern Mrs C’s best interests in relation to residence and her contact with her husband and a deprivation of her liberty.
2. I gave an indication of the decision at the conclusion of the hearing. However, a detailed written decision is appropriate because of the court’s concerns and the need for factual clarity moving forward.
3. There is also in existence a separate application by the local authority for a deputy for property and affairs to be appointed for her.
4. This decision is structured under the following headings:
Structure of this Judgment
Background and Issues in Dispute
Procedure and Hearings
Fact-Finding and Admissions
Mrs C’s Best Interests
Summary and Concluding Remarks
5. The parties to the application are as follows:
Bedford Borough Council
The relevant local authority. Represented by Ms Katie Scott of counsel.
The person concerned (‘P’). Represented by the Official Solicitor as her litigation friend, through solicitors (Bindmans LLP) and counsel (Ms Debra Powell).
The husband of the person concerned. Represented by Mr Andrew Bagchi QC of counsel, instructed by Irwin Mitchell LLP.
6. This case concerns the residence, care, matrimonial contact and liberty of Mrs C who presently resides at S Care Home.
7. Mrs C’s first language is Italian but she understands and speaks English.
8. Mrs C is a 74 year old woman with a diagnosis of dementia, diabetes and stroke-related illness. She suffers from double incontinence and poor mobility. She is said to require 2:1 care for transfers and some personal care. She has difficulties swallowing but can feed herself. Her communication is limited in the main to one word answers.
9. Mr and Mrs C met when he was 11 years old and she was 13½ years old. They had to wait for permission to marry until he was 21. They came to England in 1965 and have lived here since. They have now been married for over 50 years.
10. Until June 2010 Mr and Mrs C lived together in a 3 bedroom property. Mr C still lives in the matrimonial home.
11. In June 2010 Mrs C was receiving 48.5 hours of care at home per week arranged by the Applicant local authority.
12. The Applicant’s case is that it experienced significant difficulties in delivering a care package because of her husband’s conduct. In particular, he was frequently drunk; verbally and physically aggressive to his wife, punching her ‘on at least one occasion’; extremely critical of and aggressive to her carers, ‘both physically and verbally’; prevented them from delivering care; and had unrealistic expectations about what could be delivered.
13. On 16 June 2010 there was an incident in which a carer reported that Mr C punched his wife in the face. It seems that he was angry and frustrated by her failure to eat because as he was being led away by the police he said, ‘She’ll die if she doesn’t eat’. Subsequently, Mr C pleaded guilty to assault and was given a community sentence.
14. Following this incident Mrs C was taken to S Care Home as a place of safety and she has remained there since that time.
15. Mr C’s mother and father both died shortly before the assault. He told me that at this time he was bereaved and exhausted and drinking heavily.
16. Although Mr C disputes it, I am satisfied (on Ms EF’s evidence) that his wife did not wish to see him for some considerable time after the assault. A meeting between them at the care home following the incident was very fraught indeed and Mrs C’s reaction was such that her husband had to be asked to leave. She was frightened and it was clear that she did not want any contact.
17. It was some 8½ months before Mrs C wished to see her husband. Their first meeting after this lengthy separation was also a difficult one. Mr C became angry when his wife said that she did not wish to return home with him. He expressed this by saying that he was going to hang himself.
18. Gradually the couple have been able to rebuild their old relationship and now greatly enjoy their time together.
19. The current arrangements are that Mrs C goes to the matrimonial home twice a week for up to four hours and her husband is able to visit S Care Home whenever he likes.
20. The couple have ‘supported rather than supervised’ telephone contact at Mr C’s instigation. Mrs C does not have the capacity to initiate a telephone call.
The issues in dispute and decisions to be made
21. The parties agree that Mrs C lacks the capacity to make her own decisions about her place of residence, care, marital contact and liberty.
22. In addition, it is common ground that she lacks capacity to manage her property and affairs and the local authority has applied for a financial deputy to be appointed.
23. The court must determine Mrs C’s best interests in relation to these disputed matters.
24. The decisions which the court may make on Mrs C’s behalf are constrained by what are called ‘public law considerations’. It is for local and other public authorities, not judges, to decide how to allocate limited resources between competing claimants, provided they do not act so irrationally that it constitutes acting unlawfully, etc.
25. In this case the local authority cannot afford or will not fund a package of care at home which costs more than £700 per week. More particularly, the local authority will not fund 24 hour care in the matrimonial home.
26. This court does not have the power to review the lawfulness of this financial needs assessment and it has not been challenged by any of the parties by way of judicial review.
27. I must proceed on the basis that the local authority’s financial needs assessment in this respect is lawful and binding on me unless and until it is set aside by the appropriate court or modified by the local authority, if ever.
28. Having regard to the level of funding and services available to her and the parties’ submissions concerning her best interests, I must decide which one of the following three options is now in her best interests with regard to her place of residence:
a) To return to the matrimonial home with a personal budget of £700 per week, sufficient to buy approximately 50 hours of care per week or 25 hours of double-handed care.
b) To continue residing at S Care Home.
c) To reside at a different, yet to be identified, care home. (Prior to the hearing, this was Mr C’s preferred option if he was unsuccessful in obtaining his wife’s return home).
29. If I decide that it is in Mrs C’s best interests to continue to reside at S Care Home then in addition I must consider whether it is in her best interests that she continues to be deprived of her liberty there under a standard authorisation issued by the local authority.
30. If it is, I may attach or vary conditions to the authorisation if it is in her best interests to do so. More particularly, I must consider the issue of contact with her husband. The only dispute between the parties has been whether the contact needs to be supervised or just supported.
31. Finally, as soon as practicable, I must make a decision on the local authority’s application to be appointed as Mrs C’s deputy for property and affairs.
32. The following additional matters may be highlighted by way of introduction:
a) It may be possible to supplement what the local authority is willing to provide in three ways:
i) By additional services purchased privately from Mr and/or Mrs C’s own funds.
At the hearing I was told that the matrimonial home is worth £185,000, is in joint names and is not subject to a mortgage.
Mr C receives a state pension of £72 per week and income support of £200 per month. He has no other assets and has ‘personal liabilities’ to friends and family members of at least £17,000, possibly significantly more.
Mrs C has no other assets apart from a recent damages award of £8,000. If she returned home, she would continue to be entitled to Disability Living Allowance at the higher rate (although over the age of 65 she has preserved rights). Potentially there would be a Carer’s Allowance of up to £61.35 for her husband and some other undetermined state benefits.
ii) By support from the National Health Service in the form of services from general practitioners, district nurses, community matrons and so forth.
iii) By free or subsidised care or support from charities and voluntary organisations and from her network of family and friends.
b) Although no professional suggested that Mrs C is entitled to NHS Continuing Healthcare funding, it was unfortunate that the local authority did not establish what support the NHS could provide for Mrs C prior to the hearing.
c) Nor did the local authority seek to establish the availability and cost of day centre services for Mrs C if living at home, the additional sums which could be available for care through DLA and a carer’s allowance, or Mrs C’s prognosis and life expectancy. The latter is relevant to assessments of her future needs and their management and the extent to which drawing down private funds is likely to be sustainable.
d) Although Mrs C was admitted to S Care Home in June 2010, there was no court order or standard authorization in place making lawful a deprivation of her liberty at S Care Home until 14 August 2013.
The Applicant’s position
33. The local authority invited the court to conclude that it is in not in Mrs C’s best interests to return home. Furthermore, it is in her best interests for all contact with her husband to be supervised ‘due to Mr C’s lack of insight into Mrs C’s needs’.
34. The local authority submits that the reasons why it is in her best interests to continue to live at S Care Home include the following:
a) Her need for 2:1 care is unpredictable and she requires access to 2:1 care 24 hours a day. A return home with a £700 per week personal budget will leave her with significant periods of time with Mr C as her only carer. Such a care package would not meet her needs even if there were no concerns about the care which Mr C has provided to his wife.
b) The care package Mrs C could buy with a personal budget of £700 would be almost the exactly the same amount of care as she received in June 2010. However, since then Mrs C’s needs had increased and Mr C’s health had declined. He could not cope then and necessarily things would be even more difficult now.
c) Mr C provided inadequate care to his wife in the past. He assaulted her and handled her in such a way as to cause injury to her.
d) Mr C lacks insight into his wife’s needs, is unable to take professional advice and remains unable to work with professionals.
e) Mrs C appears settled and content at S Care Home.
f) She is content to return there after weekly visits home.
g) The unanimous professional view, including that of the jointly-instructed independent experts, is that it in her best interest to continue to reside at S Care Home.
Mr C’s position
35. Mr C indicated that he would prefer more support for his wife at home than that which could be purchased with a £700 per week budget.
36. Notwithstanding that unsatisfactory situation, it was in his wife’s best interests to return to the family home. The benefits of reuniting husband and wife outweighed any risks caused by perceived deficits in local authority provision. He would make necessary arrangements to care for his wife with whatever support was provided.
37. As to his own conduct, Mr C acknowledged that he used to drink too much. However, he has not drunk at all since shortly after Mrs C left home and this has had a beneficial effect on his ability to control his mood and temper.
38. Notwithstanding his ‘ups and downs’ with his wife’s carers in the years leading up to her removal in June 2010, the local authority’s clear view throughout that period was that it was in Mrs C’s best interests to remain living with him in the family home.
39. He accepted and understood that if Mrs C came home he must:
a) Work co-operatively with care staff;
b) Not act in a rude or abusive way towards them;
c) Take their advice in relation to Mrs C’s personal care, the handling of her, her diet and the mechanics of feeding;
d) If required to do so take a backseat role in the provision of care;
e) Do his utmost to ensure that there is a calm and pleasant atmosphere in the home.
40. If the court did not declare that it is in his wife’s best interests to return home, he maintained that her needs are not being met in her current care home. Therefore, it is in her best interests to explore local alternatives.
41. Contact arrangements should remain broadly the same. However, it would be better for Mrs C to have some privacy with her husband during contact visits, either in the care home garden or in a separate room within the family home.
42. The local authority’s handling of Mrs C’s case was subject to unacceptable delay and the making of procedural applications which were not in her best interests:
a) Mrs C was admitted to S Care Home in June 2010.
b) It was not until 14 December 2012 that the local authority applied for declarations in relation to residence, deprivation of liberty and the other issues raised in these proceedings. (The contention that initially she had capacity to decide her place of residence following her removal to S Care Home is at marked variance with various capacity assessments from 2004 onwards.)
c) On 9 January 2013, the Senior Judge requested a statement from the Applicant.
d) Despite chase-up letters from the court dated 4 February 2013 and 17 April 2013, that statement was not provided until 31 July 2013, by which time Mrs C had been at S Care Home for three years.
e) On 2 August 2013, District Judge Batten gave directions and then heard the matter on 14 August 2013. District Judge England then heard it on 15 October 2013.
f) The matter came before me on 7 March 2014. I was concerned that Mr and Mrs C had been separated for almost four years without a hearing of the issues. Therefore, I directed the filing of final statements and set it down for trial before myself on 7 July 2014.
g) The local authority then triggered the case’s transfer to a High Court judge on the basis that a claim for damages under the Human Rights Act had been made by the Official Solicitor. I did not accept then, and do not accept now, that the trial could not have gone ahead as scheduled and the best interests decisions made, with the Human Rights Act claim being ‘parked’ for consideration at a later date. Nothing I heard at the final hearing indicates the contrary. The delay was contrary to Mrs C’s best interests.
h) The Human Rights Act claim was then settled by way of an ex gratia payment.
i) However, at that point, the local authority then triggered a further referral to a High Court judge, to decide whether the case should be reserved to me (as contended by the Official Solicitor and Mr C’s solicitors) or be placed in the ‘general pool’ of cases. One can only wonder why.
j) The matter then returned to me from the High Court in September 2014 and I set it down for a three-day final hearing at the beginning of January 2015.
k) Shortly before Christmas 2014, the local authority in effect sought to abort the trial on the basis that it was not willing to pay for 24-hour care at home; therefore there was only one option available to the court (continued residence at S Care Home) and so nothing for the court to decide. In my view that application was wholly misconceived. This is a case involving a deprivation of liberty, the separation of a couple who have been married for over fifty years and the contact they have with each other. A proper hearing of issues and her husband’s case was a legal necessity.
l) The result was that the final hearing took place some 4½ years after Mrs C’s removal to S Care Home. Bearing in mind the length of her marriage, any objective view of her best interests should have led a local authority to facilitate an early determination of the issues. That was the overriding procedural consideration.
Documentary Evidence (The Court Bundle)
43. The Court received a 1500-page bundle of documents which included applications and application notices, orders, directions, position statements, capacity assessments, witness statements, exhibits, correspondence, a jointly instructed independent social work report prepared by Mr Keith McKinstrie dated 17 January 2014 [D/21] together with an Appendix dated 19 February 2014 [D/65], a jointly instructed independent SALT report prepared by Ms Adriana Noble dated 14 May 2014, Scott Schedules/Particulars of Allegations and prescribed Deprivation of Liberty forms. In my view, it is fair to say that the bundles were confusing and the court worked from two different bundles.
44. Oral evidence was given by Ms AB (Social Worker, Senior Practitioner); Ms CD (Registered Manager, S Care Home); Ms EF (social worker); Mr Keith McKinstrie (jointly instructed independent social worker); Mr C (husband); and Mr GH (family friend). Counsel then made oral submissions at the conclusion of the oral evidence.
45. The law to be applied in a case such as this was not in dispute and therefore I shall keep this section of the judgment as short as reasonably possible.
European Convention on Human Rights
46. Article 5(1) imposes a positive obligation on the state to protect the liberty of its citizens.
47. Article 5 is engaged where an incapacitated person is deprived of their liberty. A proper authorisation or court order is required, which in this case is the standard authorisation.
48. Article 8 provides a qualified right that everyone has the right to respect for their private and family life, home and correspondence.
49. Any interference with Mrs C’s family or private life must be authorised by law, proportionate ('necessary in a democratic society') and for a permitted purpose, e.g. for the protection of her health. Due weight needs to be given to this when reaching the overall conclusion on best interests and assessing whether any proposed interference with family life is justified and proportionate.
50. The court should consider the nature and strength of the evidence of the risk of harm. There must, as Peter Jackson J observed in Hillingdon LBC v Neary  EWHC 413 (COP) at para 15(3), be a proper, factual basis for concerns.
51. Once this court has completed its analysis of Mrs C’s best interests, it must satisfy itself that any infringement of her Article 5 and/or Article 8 rights which arises from its (provisional) conclusion is necessary and proportionate: see K v LBX  EWCA Civ 79 at .
Mental Capacity Act 2005 — Statutory principles
52. The statutory principles set out in the Mental Capacity Act 2005 are well-known to the parties.
53. Very briefly, section 1 provides that a person must be assumed to have capacity unless it is established that she lacks capacity; a person is not be treated as unable to make a decision unless all practicable steps to help her to do so have been taken without success; a person is not to be treated as unable to make a decision merely because she makes an unwise decision; an act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in her best interests; and before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.
54. The application of the last two principles are relevant to this case.
Determining capacity and the law
55. For the purposes of the Act, a person lacks capacity in relation to a matter ‘if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.’
56. It is common ground that Mrs C suffers from dementia and lacks capacity to make the relevant decisions for herself.
Determining best interests and the law
57. The correct approach to determining questions about what is in Mrs C’s best interests is set out in Section 4 of the Mental Capacity Act 2005:
Section 4 Best interests
(1) In determining for the purposes of this Act what is in a person's best interests, the person making the determination must not make it merely on the basis of—
(a) the person's age or appearance, or
(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.
(2) The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.
(3) He must consider—
(a) whether it is likely that the person will at some time have capacity in relation to the matter in question, and
(b) if it appears likely that he will, when that is likely to be.
(4) He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him ….
(5) Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.
(6) He must consider, so far as is reasonably ascertainable—
(a) the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),
(b) the beliefs and values that would be likely to influence his decision if he had capacity, and
(c) the other factors that he would be likely to consider if he were able to do so.
(7) He must take into account, if it is practicable and appropriate to consult them, the views of—
(a) anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,
(b) anyone engaged in caring for the person or interested in his welfare,
(c) any donee of a lasting power of attorney granted by the person, and
(d) any deputy appointed for the person by the court,
as to what would be in the person's best interests and, in particular, as to the matters mentioned in subsection (6) …
(10) “Relevant circumstances” are those—
(a) of which the person making the determination is aware, and
(b) which it would be reasonable to regard as relevant.’
Balancing the considerations and “magnetic importance”
58. In the case of ITW v Z  EWHC 2525 (Fam) at para. 32, Munby J (as he then was) gave the following guidance with regard to the different considerations listed in section 4 which the decision-maker must have in mind:
i. The first is that the statute lays down no hierarchy as between the various factors ... beyond the overarching principle that what is determinative is the judicial evaluation of what is in P's “best interests”.
ii. The second is that the weight to be attached to the various factors will, inevitably, differ depending upon the individual circumstances of the particular case. A feature or factor which in one case may carry great, possibly even preponderant, weight may in another, superficially similar, case carry much less, or even very little, weight.
iii. The third, following on from the others, is that there may, in the particular case, be one or more features or factors which, as Thorpe LJ has frequently put it, are of “magnetic importance” in influencing or even determining the outcome.
Significance of the person’s own wishes and feelings
59. The weight to be given to an incapacitated person’s own wishes was also dealt with in the case of ITW v Z  EWHC 2525 (Fam) at para. 35:
i. First, P's wishes and feelings will always be a significant factor to which the court must pay close regard: see Re MM; Local Authority X v MM (by the Official Solicitor) and KM  EWHC 2003 (Fam),  1 FLR 443, at paras -.
ii. Secondly, the weight to be attached to P's wishes and feelings will always be case-specific and fact-specific. In some cases, in some situations, they may carry much, even, on occasions, preponderant, weight ... it all depends ... upon the individual circumstances of the particular case [and] ... the weight to be attached to their wishes and feelings must depend upon the particular context ….
iii. Thirdly, in considering the weight and importance to be attached ... the court must ... have regard to all the relevant circumstances. [These] will include [but are not] limited to such matters as:
a. the degree of P's incapacity, for the nearer to the borderline the more weight must in principle be attached to P's wishes and feelings: Re MM; Local Authority X v MM (by the Official Solicitor) and KM  EWHC 2003 (Fam),  1 FLR 443, at para ;
b. the strength and consistency of the views being expressed by P;
c. the possible impact on P of knowledge that her wishes and feelings are not being given effect to: see again Re MM; Local Authority X v MM (by the Official Solicitor) and KM  EWHC 2003 (Fam),  1 FLR 443, at para ;
d. the extent to which P's wishes and feelings are, or are not, rational, sensible, responsible and pragmatically capable of sensible implementation in the particular circumstances; and
e. crucially, the extent to which P's wishes and feelings, if given effect to, can properly be accommodated within the court's overall assessment of what is in her best interests.
Importance of long-established family life
60. In the Neary case (The London Borough of Hillingdon v Steven Neary and Mark Neary and Others  EWHC 1377 (COP)) at para 24, Peter Jackson J reminded local authorities, the courts and others of the importance of family life and the significance to be attached to it:
‘Decisions about incapacitated people must always be determined by their best interests, but the starting point is their right to respect for family life where it exists. The burden is always on the State to show that an incapacitated person’s welfare cannot be sustained by living and being looked after by his or her family, with or without outside support.’
 … As I said in Re S, at para :
'I am not saying that there is in law any presumption that mentally incapacitated adults are better off with their families: often they will be; sometimes they will not be. But respect for our human condition, regard for the realities of our society and the common sense to which Lord Oliver of Aylmerton referred in In re KD …, surely indicate that the starting point should be the normal assumption that mentally incapacitated adults will be better off if they live with a family rather than in an institution – however benign and enlightened the institution may be, and however well integrated into the community – and that mentally incapacitated adults who have been looked after within their family will be better off if they continue to be looked after within the family rather than by the State.
 We have to be conscious of the limited ability of public authorities to improve on nature. We need to be careful not to embark upon 'social engineering'. And we should not lightly interfere with family life. If the State – typically, as here, in the guise of a local authority – is to say that it is the more appropriate person to look after a mentally incapacitated adult than her own partner or family, it assumes, as it seems to me, the burden – not the legal burden but the practical and evidential burden – of establishing that this is indeed so. And common sense surely indicates that the longer a vulnerable adult's partner, family or carer have looked after her without the State having perceived the need for its intervention, the more carefully must any proposals for intervention be scrutinised and the more cautious the court should be before accepting too readily the assertion that the State can do better than the partner, family or carer.
 At the end of the day, the simple point, surely, is this: the quality of public care must be at least as good as that from which the child or vulnerable adult has been rescued. Indeed that sets the requirement too low. If the State is to justify removing children from their parents or vulnerable adults from their relatives, partners, friends or carers it can only be on the basis that the State is going to provide a better quality of care than that which they have hitherto been receiving: see Re F, F v Lambeth London Borough Council  1 FLR 217 at para .
 The fact is that in this type of case the court is exercising an essentially protective jurisdiction. The court should intervene only where there is a need to protect a vulnerable adult from abuse or the real possibility of abuse: see Re K, A Local Authority v N and others  EWHC 2956 (Fam),  1 FLR 399, at paras -, and X City Council v MB, NB and MAB (by his litigation friend the Official Solicitor)  EWHC 168 (Fam),  2 FLR 968, at para . The jurisdiction is to be invoked if, but only if, there is a demonstrated need to protect a vulnerable adult. And the court must be careful to ensure that in rescuing a vulnerable adult from one type of abuse it does not expose her to the risk of treatment at the hands of the State which, however well intentioned, can itself end up being abusive of her dignity, her happiness and indeed of her human rights. That said, the law must always be astute to protect the weak and helpless, not least in circumstances where, as often happens in such cases, the very people they need to be protected from are their own relatives, partners or friends: NS v MI  EWHC 1646 (Fam),  1 FLR 444, at para .
 There is one final point to be made. The court, as I have said, is entitled to intervene to protect a vulnerable adult from the risk of future harm – the risk of future abuse or future exploitation – so long as there is a real possibility, rather than a merely fanciful risk, of such harm. But the court must adopt a pragmatic, common sense and robust approach to the identification, evaluation and management of perceived risk.”
Trials at home
62. In Re: GC  EWHC 3402 (Fam), Hedley J considered whether to allow an elderly man to be discharged from hospital to the home where he had lived for many years with his nephew KS, notwithstanding that there were serious though entirely unintentional shortcomings in the care provided by KS. Hedley J commented:
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? Secondly I have approached this case on the basis that his primary need is for emotional warmth, emotional security and the commitment of human relationship. That has been a huge feature of his life to date and one that is not readily to be set aside. 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 physical place but also the relational structure that is associated with a place ...
63. In connection with the issue of a trial placement, the Judge commented at paragraph 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 that has been advanced, and this is another factor that has weighed with me in this case ….
64. The best interests test is concerned with the best interests of Mrs C and not the best interests of another person. The need for a balance-sheet approach is set out in the case of Re S (Adult’s lack of capacity: carer and residence)  FLR 1235.
Codes of Practice
65. The relevant codes of practice are the Mental Capacity Act 2005: Code of Practice (Department for Constitutional Affairs, London: TSO, 2007) and the Deprivation of liberty safeguards: Code of Practice to supplement the main Mental Capacity Act 2005 Code of Practice (Ministry of Justice, London: TSO, 2008). The codes do not have statutory force but professionals and some carers must have regard to their provisions, and the courts must take them into account where relevant: see section 42.
Public law considerations
66. I accept that this court cannot direct the local authority or the NHS to provide services which they have assessed that Mrs C does not require or which, having regard to their resources and the claims of other citizens, they have decided at their reasonable discretion not to provide.
Deprivation of Liberty provisions
67. The relevant Mental Capacity Act provisions can be found in sections 4A, 21A, Schedule A1 and Schedule 1A.
68. The underlying rationale of the legislative framework is that it is a protective scheme.
69. Schedule A1 to the 2005 Act provides that a person may only be deprived of their liberty under a standard authorisation if they meet six statutory requirements: age, mental health, mental capacity, best interests, no refusals, eligibility.
70. The requirement in issue here is the best interests requirement.
71. This is in reality four requirements masquerading as one. It is satisfied only if all of the following four conditions are satisfied:
1. Mrs C is being detained in the care home for the purpose of being given care or treatment in circumstances which amount to a deprivation of her liberty;
2. This is in her best interests;
3. This is necessary in order to prevent harm to her; and
4. Her detention in the care home for the purpose of being given care or treatment in circumstances which amount to a deprivation of her liberty is a proportionate response to the likelihood of her suffering harm, and the seriousness of that harm (if she were not so detained).
72. The applicant’s case was that professional carers had experienced significant difficulties in delivering the care package as a result of Mr C’s conduct.
Mr C’s formal admissions
73. Mr C made the following admissions in his position statement, in essence pursuant to rule 94 of the Court of Protection Rules 2007:
a) Mr C accepts that he cannot realistically challenge the criminal conviction in this court relating to the assault of 10 June 2010.
b) Mr C accepts that from time to time when Mrs C was in his care prior to her removal he is likely to have handled her in such a way as to give rise to bruises and marks. He would point out, however, that Mrs C was prone to falling, does bruise very easily and that had more, or more appropriate, support been provided to him by the local authority he would not have been left to handle Mrs C manually.
c) Mr C accepts that from time to time he would become angry and frustrated with Mrs C’s carers. He has very high standards for Mrs C’s care and sometimes his anxiety would overcome him and he accepts that regrettably he has been rude to staff.
d) Mr C accepts that he used to drink too much and that this would affect his behaviour.
e) Mr C accepts that in the past there have been disagreements between him and care staff including staff at the care home in relation to the food given to Mrs C.
74. Mr C did not accept that he has assaulted or deliberately harmed Mrs C other than on the occasion resulting in his conviction.
The court’s findings of fact
75. With regard to the findings sought by the local authority at the beginning of the trial, some of which were subsequently abandoned for want of supporting evidence, the court makes the following findings and observations:
Mr C’s Response
ASSAULT, BATTERY, CRIMINAL CONDUCT
1. That on 16 June 2010 at the matrimonial home Mr C committed battery on his wife which included punching her in the fact [E/1].
1. Admitted. Mr C accepts that he was convicted.
2. That on 18 November 2009 at the matrimonial home Mr C attempted to strike his wife with his fist, in the presence of former carer F [E/1].
2. Denied. Mr C does not accept that he has assaulted or deliberately harmed Mrs C other than on the occasion resulting in his conviction.
The court’s finding of fact
The incident is referred to by the social worker Ms AB in her statement dated 4 October 2014 [C/13, para. 6xi). The contemporaneous record is a SOVA referral form SV1 dated 18 November 2009 [E/8-E/11].
The court observes that the SOVA allegation was made anonymously and is marked ‘Unsubstantiated’. Ms AB is able only to produce this record marked ‘unsubstantiated’; nothing more. The fact that Mr C was convicted of battery in 2010 is insufficient to substantiate this separate allegation.
The court finds the allegation not proven and gives it an evidential value of 0.
3. That on 1 July 2008 Mr C was witnessed by LP ‘holding [his wife] by the hair as he was moving her’ [E/1]
3. Denied. Mr C does not accept that he has assaulted or deliberately harmed Mrs C other than on the occasion resulting in his conviction.
The court’s finding of fact
According to the local authority [E/1], ‘This incident is believed to have taken place at [the matrimonial home] and is recorded in Profile Notes p.424’ [E/12].
The court observes that at best the evidence given to the court concerning the incident is third-degree hearsay. The context is unknown. The allegation dates to July 2008, is now 6½ years old, relates to an unspecified location and was not considered serious enough to warrant investigation at the time by the person reporting it: ‘… note that you did not feel it appropriate to move to any SOVA [Safeguarding of Vulnerable Adults] process at this time’. The court further notes that Mrs C looked very well, was brighter than usual and did not seem afraid of Mr C.
The court finds that the allegation is ill-defined. If it is being asserted that the court should find that it is an example of physical abuse, the court finds the allegation not proven and gives it an evidential value of 0.
4. That on 23 March 2006 Mr C made a threat to Ms BH that ‘he has had enough and will burn the house down with them in it’ [E/2].
4. No formal response.
According to the local authority [E/1], the incident is recorded in social care records [at E/13].
The court observes that the note at E/13 records as follows: ‘Outcome. Significant event? No’.
The court finds that the event was considered not to be significant at the time. Mr C admits that from time to time he became frustrated and angry with carers. This incident simply illustrates that fact and, as the contemporaneous note itself records, has no greater evidential significance.
injuries allegedly sustained by Mrs C under Mr C’s care
5. Injuries sustained by Mrs C while living at home with her husband between 16 February 2006 and 20 November 2009.
5. Admission, position statement: Mr C accepts that from time to time when Mrs C was in his care prior to her removal he is likely to have handled her in such a way as to give rise to bruises and marks. He would point out, however, that Mrs C was prone to falling, does bruise very easily and that had more, or more appropriate, support been provided to him by the local authority he would not have been left to handle Mrs C manually.
6. Evidence of misuse of alcohol between 17 March 2006 and 10 May 2010
6. Admission, position statement: Mr C accepts that he used to drink too much and that this would affect his behaviour.
Verbal and physical abuse to carers
7. In addition BBC seeks finding against Mr C that he has been verbally and physically abusive to carers, as set out in the Schedule at C121 – 122.
7. Partial admission, position statement: Mr C accepts that from time to time he would become angry and frustrated with Mrs C’s carers. He has very high standards for Mrs C’s care and sometimes his anxiety would overcome him and he accepts that regrettably he has been rude to staff. Mr C accepts that in the past there have been disagreements between him and care staff including staff at the care home in relation to the food given to Mrs C.
Alleged Lack of insight into Mrs C’s care needs
8. Diabetes: BBC alleges that Mr C lacks insight into her diabetes in that he provides her with unsuitable food and is unable to take professional advice.
8. Mr C has admitted there have been disagreements between himself and the care home staff about food. BBC do not understand this to be an admission and so will pursue this allegation.
According to the local authority, it relied on the statement of Ms AB in the core bundle at C15 paragraph 9 and information from CD manager of S care home recorded in a capacity assessment, core bundle C98; the incident on 1 March 2014, core bundle C110; the incident on 16 March 2014 (exhibited to Ms AB’s statement in the separate LA bundle of evidence C113); the incident on the 2 June 2014 (exhibited to Ms AB’s statement in the separate LA bundle of evidence C200).
The court observes that the oral evidence in support of the local authority’s position, and the records produced during the trial at the court’s request, were unsatisfactory. The evidence that he lacks an understanding of his wife’s dietary needs was poor and, perhaps in recognition of this, as the hearing proceeded the local authority’s case focused increasingly on the quantity of food he serves her. In fact, I find that he provides her with an exceptionally good diet, in keeping with her long-standing wishes and reasonably tempered by dietary advice, and only rarely gives her too much of it. His wife simply has type 2 diabetes and must be careful about her diet. On one occasion at the care home the GP was asked for telephone advice about her high blood-sugar level. When the blood-sugar readings were produced at the court’s request there was no obvious pattern to them. Contrary to Ms CD’s initial contention, they were not noticeably or consistently higher or lower following time spent with her husband. Her blood-sugar levels have been well-maintained since June 2014.
The court finds that Mr C has generally ensured that his wife has a good diet and usually he complies with guidelines about the management of her diabetes. Any lapses on his part were relatively infrequent and in keeping with ordinary human imperfection.
9. Swallowing difficulties: That he lacks insight into her swallowing difficulties.
9. No formal response.
According to the local authority, Mr C ‘lacks insight into her swallowing difficulties in that he attempts to feed her with a spoon even though at risk of choking (this is dealt with in Ms AB’s statement at C15 of the core bundle) and on 2 June 2014 he provided her with a drink without using thickeners which caused her to cough (exhibited to Ms AB’s statement in the separate LA bundle of evidence C200).’
The court observes that Mr C accepted that he made a mistake with the thickener on one or two occasions.
The court finds that Mr C has generally been careful to ensure that his wife has suitable liquids. Any lapses on his part were relatively infrequent and in keeping with ordinary human imperfection.
10. Mobility issues: That he lacks insight into her mobility difficulties, in that he does not accept the physiotherapy guidelines in place for Mrs C and thinks she should mobilise more.
10. No formal response.
According to the local authority, it relied on information from CD manager of S Care Home as recorded in a capacity assessment, core bundle C98, and the statement of Ms AB in the core bundle at C15 paragraph 9. On 16 May 2013 Mr C stated at the Annual Review Meeting that he wants to get her up walking and that ‘she needs to learn to walk and move’, and that he has learned how to achieve this from the physios (exhibited to Ms AB’s statement in the separate LA bundle of evidence C178 -9).
The court finds that Mr C does find it very difficult to accept his wife’s increasing immobility. He does think she should mobilise more and that this will improve her mobility skills. Unfortunately the evidence indicates that her immobility is part of a progressive condition and that these well-meant interventions are not in her best interests. It is likely that they cause her some distress because they require action from her which goes beyond her capabilities. There is also a risk of falling.
76. Having regard to the above, and by way of summary, the following conduct on Mr C’s part is either formally admitted or found by the court on the balance of probabilities:
a) Mr C was convicted of the assault of 10 June 2010.
b) Mr C accepts that from time to time when Mrs C was in his care prior to her removal he is likely to have handled her in such a way as to give rise to bruises and marks. He points out, however, that Mrs C was prone to falling, does bruise very easily and that had more, or more appropriate, support been provided to him by the local authority he would not have been left to handle Mrs C manually.
c) Mr C accepts that from time to time he would become angry and frustrated with Mrs C’s carers. He has very high standards for Mrs C’s care and sometimes his anxiety would overcome him and he accepts that regrettably he has been rude to staff.
d) Mr C accepts that he used to drink too much and that this would affect his behaviour.
e) Mr C accepts that in the past there have been disagreements between him and care staff including staff at the care home in relation to the food given to Mrs C.
f) Mr C has generally ensured that his wife has a good diet and usually he complies with guidelines about the management of her diabetes. Any lapses on his part were relatively infrequent and in keeping with ordinary human imperfection.
g) Mr C has generally been careful to ensure that his wife has suitable liquids. Any lapses on his part were relatively infrequent and in keeping with ordinary human imperfection.
h) Mr C does find it very difficult to accept his wife’s increasing immobility. He does think she should mobilise more and that this will improve her mobility skills. Unfortunately the evidence indicates that her immobility is part of a progressive condition and that these well-meant interventions are not in her best interests. It is likely that they cause her some distress because they require action from her which goes beyond her capabilities. There is also a risk of falling.
77. Having summarised the legal framework and made relevant findings, I must consider Mrs C’s best interests.
Participation of Mrs C in the decision-making
78. So far as reasonably practicable, Mrs C has been permitted and encouraged to participate as fully as possible in the decision-making process. She has had opportunities to express her wishes and preferences and has done so.
Whether a recovery of capacity is likely
79. I find that it is unlikely that Mrs C’s capacity will improve so as to enable her to make this particular decision for herself. Her condition is progressive. Therefore, a decision must be made for her now, by me, in her best interests.
Mrs C’s wishes and feelings
80. It is Mrs C’s best interests in the context of her wishes, feelings, beliefs and values that is important.
81. In taking her wishes and feelings into account, I have considered the case of ITW v Z, the degree of incapacity, the strength and consistency of her views, the likely impact of knowing that her wishes and feelings are being overridden (if my decision is contrary to her wishes), the extent to which her wishes and feelings are rational, sensible, responsible and pragmatically capable of sensible implementation, and the extent to which her wishes and feelings can properly be accommodated within the court's overall assessment of her best interests.
Past wishes and feelings
82. There is no dispute that prior to her move to the S Care Home in June 2010, and during the many years she had capacity to decide where to live, Mrs C consistently expressed the view that she wished to live with her husband in the matrimonial home.
83. I find that Mrs C did not wish to see her husband after the assault for a period of up to 8½ months.
Present wishes and feelings
84. The local authority submitted that Mrs C’s dementia has progressed to a level which means that her responses are not reliable. As a result it is difficult ‘to ascertain a concluded view’ about her wishes and feelings on the issue of residence.
85. When Mr McKinstrie interviewed her at S Care Home in December 2013 he concluded that it was difficult to be confident about her wishes with regard to her future residence and care. The evidence of her wishes since then is, I think, somewhat clearer.
86. In my view, far too much was made by local authority professionals of perceived past displays of anxiety and distress on Mrs C’s part when her husband’s name was mentioned. Her current social worker opined that it should not be assumed that Mrs C wants to live with him ‘because of records I’ve gathered. I can’t substantiate it but there are situations where people who have been abused cannot get out of it’.
87. The same social worker told me that there was no indication that his wife wished to remain at the end of her visits home and she is happy with the current arrangement. Furthermore, according to the care home manager, in the past she was not obviously distressed by not visiting home.
88. In fact, as counsel for the Official Solicitor noted, she is appropriately downcast at the end of her visits home. She now enjoys a good relationship with her husband whereas previously there had been a lot of tension in the house.
89. The fact that Mrs C may find it distressing to talk about emotional subjects such as her husband and her home does not mean that any distress is a manifestation of fear or anxiety caused by the thought of returning to live with him. Although her social worker sought to make this connection, the cause of her distress could be some other reason, such as unhappiness at being separated from him and her home. Her social worker was unable to give a coherent answer when questioned about this possibility despite the question being repeated by counsel for the Official Solicitor.
90. I find this to be the more likely explanation. Mrs C appeared to be happy and content at the matrimonial home during the visits undertaken with Mr McKinstrie and Ms Noble; she is more animated and verbally responsive when at home; she often expresses a wish to have telephone or face-to-face contact with her husband; she is generally responsive to Mr C and initiates affectionate contact towards him; she consistently stated to Ms Noble that she wished to live with her husband; and she consistently stated to her solicitor in January 2014 that she wished to live with her husband (she said ‘no’ twice when asked if she wanted to stay at S Care Home and on one occasion when asked where she would like to live responded ‘somewhere else’). Mr GH (an impressive witness) also told me that she is much more responsive at home than in the care home. He had three very good conversations with her during lucid moments between mid-November and mid-December 2014. He asked her if she was happy at S Care Home and she said, ‘Not really’ and indicated that she wanted to go home. He was told by S Care Home not to ‘badger her with such questions.’
91. Mrs C’s social worker told me that Mrs C is similarly affectionate with her as with her husband: ‘I’ve read that and she does that to me’.
92. I am afraid that I find that Mrs C’s social worker’s view has become rather entrenched. Her eighth witness statement (sic) of 23 December 2014 includes passages such as:
‘… I exhibit the … report of a carer … which appears to somewhat contradict the glowing exposition of Mr C…’
‘Mr C is disingenuous regarding Mrs C’s care needs …’
‘I would again high-light that his complaint … followed his agreement to installation of equipment, at the review on the 15th instance! This was precisely the sort of behaviour he displayed previously to professionals — i.e. contradictory …’
‘However, he promptly contradicted himself on this point as evidenced in paragraph 5!’
‘I do not see that there are any disadvantages to Mrs C being at [S Care Home] …’
‘It is my opinion that all contact needs to be supervised. This is because of the risks Mr C poses to Mrs C.’
93. The use of exclamation marks in a social work witness statement, and terminology such as ‘disingenuous’, ‘glowing exposition of Mr C and ‘promptly contradicted himself’, together with a failure to see any disadvantages to the separation of a couple who have been married for 50 years, and the submission of eight lengthy statements, is a concern for me.
94. It seems to demonstrate a fixed view of Mr C and the rightness of the local authority’s view which is not open to alternative explanations and strategies and allows little to no space for exploring home-based care in any meaningful way. I was also concerned by the social worker’s apparent confusion as to the difference between supervised and supported contact. For all these reasons I have given relatively little weight to the allocated social worker’s interpretation of Mrs C’s wishes and feelings.
95. On the balance of probabilities I am satisfied that Mrs C’s present wishes and feelings are that she would prefer to live at her own home with her husband. I accept of course, and it is not disputed, that she is unable to understand, retain and weigh highly relevant information about how this might be organised (if at all), the risks involved in a return home in terms of the sustainability of a home care package, who would provide care there, the likely living and care arrangements and the financial implications for her and her husband. Nor, in my view, can she weigh the more refined issues associated with whether she might prefer increased time at home rather than a complete return home.
96. I find that Mrs C is settled at S Care Home and is fairly contented there in the sense that she is suitably cared for and physically comfortable. The home has the benefit for her of a number of Italian-speaking staff and residents. She sees her husband often.
Any written statements made by Mrs C when she had capacity
97. None to my knowledge other than marriage contract and the purchase of a family home jointly with her husband.
Relevant beliefs and values
98. Mrs C’s marriage vows and her long commitment to her marriage are evidence of her beliefs and values. Mr and Mrs C take a traditional view of marriage and their vows, and have never regarded it as a provisional and reviewable arrangement which could and might be brought to an end by divorce or voluntary separation. A marriage such as theirs is ‘creates a relationship of mutual and reciprocal obligations, typically involving the sharing of a common home and a common domestic life and the right to enjoy each other’s society, comfort and assistance.’
Views of her husband, friends and non-professional carers
99. Mr C and Mr GH gave oral evidence.
Mr C’s oral evidence
100. Mr C told me ‘I couldn’t bear to live without my wife’ and his devotion was clear.
101. He is not able to survive on his own pension at home. The combined income from both their pensions and benefits is needed to make ends at home meet. He has light and heat on in only two rooms. He is now in significant (and increasing) debt. The matrimonial home will have to be sold if his wife does not return home. Indeed, with the debts increasing, he tried to sell it in order to buy a bungalow but was unable to do so as it is in joint names. A bungalow would also be better given his wife’s mobility issues.
102. Despite the formal admissions made on Mr C’s behalf, he denied some of the formally admitted matters when questioned.
103. With regard to the assault, he said that he got upset when his wife did not want to eat; she needed to eat. ‘I did not touch my wife. I banged the table with my fists. I can’t remember if I pushed her with my hands. I pushed the wheelchair.’ He pleaded guilty in order to be able to go home. He ‘didn’t know’ if the carer witness had been making up what she claimed to have seen him do.
104. With regard to his conduct towards carers, he had not lost his temper with a social worker or carer in the past four years. He denied that at home he became angry and upset when challenged: ‘Never, I was never angry with them’. ‘I would not call them arguments …’ But, later, ‘If things are not done in the way I expect I lose my temper. I want what is best for my wife’. Then, there had been ‘misunderstandings’ with staff, for example when they said that they not him had to wash her. He had only prevented one carer from coming as far as he remembered. He had never been told that agencies did not work with him. ‘All I can say is that I’ve never been aggressive to anyone at all … maybe words … perhaps my voice is loud’. He had not sworn, shouted or slammed the phone down. ‘I’m always nice and kind to everyone. I can improve but I cannot change the way I am.’
105. With regard to his willingness to allow other carers to provide certain types of care, he was equivocal: ‘My wife is only to be touched by me … I’m willing to do it, I don’t want anyone to do it’. Then, later in his evidence: ‘I am willing to accept a carer touching my wife, not a problem’. At one stage he said that his wife had not wanted professional carers to touch her and would become upset if they tried to toilet her. ‘I never told them to stop’. Now his wife would accept someone else changing her. He would ‘need help’ changing and toileting her, implying perhaps that he and a carer would jointly do it.
106. On the other hand, he accepted that his wife’s condition had deteriorated since her admission to S Care Home and his own health is now such that he cannot provide much personal care. Although he takes tramadol for a shoulder injury and has a belt to support his back, this injury does not affect the care he gives his wife. He wears a belt to support his back.
107. Mr C denied that he had ever been stressed by looking after his wife at home. He had never shouted at his wife or got upset with her. Caring for his wife at home ‘would not be challenging for me’.
108. He has stopped drinking and now ‘I have more insight’. ‘I have more control than in the past, I am a different person’. He would accept professional advice and would allow professional carers to provide care. He would co-operate ‘100%’.
109. He told me that he believes that his wife’s condition would improve if she came home although she would not be the same person as before. She ‘can improve a lot’. As to her mobility, ‘I’d make her walk more’.
110. He never believed that his wife did not want to see him during the 8½ months following the assault.
111. He suggested using family and friends to provide care if his wife comes home, each of whom would stay for up to three months at a time. He mentioned three sisters and sister-in-laws, ‘Mr GH’s wife’ in an emergency and ‘a lady called Ms M (he had not discussed with her how much help she could provide). D had not seen Mrs C since she was last at home. None of the Italian relatives he proposed speak any English.
112. He denied that he had called Ms M ‘the most selfish person’ when she would not cancel a medical appointment she had been waiting six months for in order to assist his wife. He had not asked the three sisters to provide letters for the court. ‘If my wife comes home I could ask around for more people … and spread the word around.’ He would pay for carers’ food and consider the costs of flights for relatives to come over from Italy.
113. I thought that Mr C generally did very well under quite a long period of questioning. His devotion, his sense of marital duty and his desire to care for his wife were extremely impressive. However, much of his evidence about recorded (and formally admitted) past problems was equivocal at best. When faced with having to admit or deny a well-evidenced event, I thought that he tended to panic and to resort to bare denial in preference to conceding a point which he felt risked weakening the case for having his wife home.
114. On balance, I think that he realises the truth of much of what is well-evidenced with regard to his past conduct — otherwise why say, ‘I have more control than in the past, I am a different person, ’ ‘I have stopped drinking,’ ‘I have more insight’ and why sometimes acknowledge it — but emotionally he will find it very difficult indeed to keep his sincerely-meant promises with regard to his future conduct.
Mr GH’s oral evidence
115. Mr GH has worked in the field of welfare advice since 1996. He has known the C family since long before then. He has given Mr C a huge of amount of advice and help in his own time, including financial help. He was a very impressive witness, compassionate, practical, measured in his assessments.
116. Mr C had contacted him in the past about home carers who were unreliable attenders. He wanted help to get new carers in. The social workers at that time were all very good and understanding; ‘I don’t have a bad word to say about any of them’.
117. Mr C was fiery, he barked a lot, but did not bite. He had ‘mellowed down a little’ in recent years and probably realised the errors of some of what he did. He would do anything to get his wife home, including giving up drinking at the end of 2010.
118. Mr GH told me that Mr C has probably understated his debts. Currently Mr C had a shortfall of around £200-300 per month in terms of outgoings and receipts. The sale of the family home fell through in July because the June hearing did not take place (upon the case’s transfer to the High Court, see above).
119. Mr GH was willing to make inquiries of the local Italian community to see if people would sit with Mrs C at home.
120. A full-time return home for Mrs C would probably be difficult now. ‘Perhaps a whole weekend at home would be feasible and slowly increasing the time there.’ ‘I think she would welcome more time at home.’
Views of non-professional carers
121. I heard oral evidence from Ms EF (a social worker involved in Mrs C’s case during the period of home care leading up to her removal to S Care Home), Ms AB and Ms CD, who managed S Care Home.
122. I also heard oral evidence from the jointly-instructed independent social worker, Mr McKinistrie.
Ms EF‘s evidence
123. I was very impressed by Ms EF’s evidence. She had a thorough grasp of the history and relevant facts, was analytical and concise but also warm and very compassionate towards both Mr and Mrs C and their predicament.
124. When they were at home she approached what was a difficult, high-risk, situation by trying to support them as a couple through identifying ways of reducing the stress on the carer Mr C, such as day care, carer breaks, respite, building in sleep time and so forth.
125. Unfortunately Mr C never agreed to day care because he did not trust paid carers to look after his wife properly (‘This is my wife. I need to look after her’). He had been with her for many decades and felt that he was the only one who knew how she liked things to be done.
126. A number of care packages broke down, broadly speaking for the same reasons. ‘Paid carers were late sometimes or on holiday or did not come into work. Panic and frustration led to aggression which most care agencies will not tolerate.’ It became difficult to find carers who were willing to go in.
127. Attempts to resolve the problem by utilising direct payments with a view to constructing a more personalised care package did not work for the same reasons (arriving late, going on holiday, not coming in). It was distressing for Mr C.
128. Attempts to identify family or people in his community to support him did not lead to anyone being identified or coming forward.
129. Mr C could be quite controlling. He attempted to take over virtually all aspects of his wife’s daily care and this included personal care which she could have provided herself with if encouraged to do so. Her demeanour and presentation changed markedly on admission to S Care Home. At home she had fallen out of bed and required a lot of personal care. At the care home she did not require cot sides, was able to walk throughout the care home and to toilet and feed herself. It was ‘amazing to see her engaging with other people’.
130. After his wife’s removal, Mr C blamed Ms EF for taking Mrs C to a care home (‘You took my wife’). Ms EF did not take that personally (‘He slammed his fist on the table and was swearing. I don’t blame him for that’) and took steps to try to ensure that Mr and Mrs C enjoyed regular good-quality contact.
Other oral evidence of the local authority
132. Ms EF aside, I have several concerns about the way in which the local authority prepared its case and about the quality of some of its evidence:
· Allegations were made in the Scott Schedule which could not be substantiated and which ought not to have been part of its case.
· There was a tendency to hold, or look to hold, Mr C responsible for all care difficulties (see e.g. the ARJO piece of equipment, C/191).
· His social worker was unable to give me an example of when a spouse is entitled not to follow professional advice in their own home.
· There was inflexibility at times. When Mrs C was in hospital NHS staff did not take the same view on the issue of Mr C helping with handling and feeding.
· There was a tendency amongst some workers to pick up on every small deviation from the professionals’ authorised care plan (see e.g. the supposed yoghurt issue at C/191).
· There was also an over-recording of every supposed failing on Mr C’s part for use at a subsequent time or in proceedings.
· There was a lack of balance to some of the oral evidence. His wife’s current social worker was unable to think of any strengths which Mr C has to offer, any insights into his wife’s needs which he has contributed or any good points to his application. She communicates with him by email through a third-party and in essence the relationship has broken down.
· Mr C was described as ‘lacking insight’ when sometimes he simply took a different view to that of the professionals.
· After 4½ years to prepare, some of the local authority’s witnesses were unable to help the court with quite basic care planning information. His social worker told me, ‘I have no evidence whether he has any family around to help’. She was ‘unclear’ whether Mrs C had needed night-time care before her removal from home. The care home manager had ‘no idea’ about Mrs C’s life expectancy or prognosis. There was no evidence in the bundle about Mr and Mrs C’s entitlement to benefits at home which might be utilised to provide for extra paid care. Nor was there any information about the family finances and the availability of private funds to supplement the local authority’s allocated budget. None of the professionals had requested an NHS Healthcare assessment of Mrs C in the past four years or investigated the availability of NHS services if she went home.
133. As the Official Solicitor submitted, it was clear that the local authority had seen the case as an open-and-shut situation. From the start they thought it was obvious that Mrs C could not return home. The local authority had prepared only the most sketchy alternative to residential care which placed the court in a difficult position.
134. The written views of the independent social worker, Mr Keith McKinstrie, were set out in his report dated 17 January 2014 [D21-64], supplemented by an addendum dated 19 February 2014 [D65-70]):
a. 7.7.1 and 7.8.4 Mrs C would require a significant support package, including a paid carer being present in the house at all times, day and night, to enable her to return to the matrimonial home;
b. 7.8.1 and 7.8.2 A major risk to Mrs C being appropriately supported in the matrimonial home is that there continue to be different views between Mr C and others responsible for caring for Mrs C as to what is in her best interests. It is uncertain whether Mr C would be able to sufficiently compromise his strongly-held views on these issues to enable the support plan to be effective;
c. 7.11.1 It is in Mrs C’s best interests to continue to reside at the S Care Home;
d. 7.11.3 It is not in Mrs C’s best interests to return to live in the matrimonial home, even with a package of care and support.
135. Mr McKinistrie confirmed that the opinions set out in his main report and addendum report (D/21-64 and D/69) were his opinions at the time they were given. However, almost a year had elapsed since then.
136. He emphasised the importance of having a single support plan in place rather than a ‘patchwork of care’. Any proposal to use family members and volunteers only made this more necessary. The more people contributing to a care plan the greater the need for a clear care plan which carers must adhere to before they contribute to care. The local authority would be the natural care manager.
137. Mr C’s strongly held views meant there was a significant risk that any attempt to construct a single joint informal care/paid care plan would fail because of significant differences of opinion about the appropriate way to deliver care to Mrs C.
138. Because of Mrs C’s medical condition consistent and understandable care was fundamental. If people toileted her in different ways she would be confused and unable to co-operate with the steps and procedures. Not being able to understand what was expected of her would lead to more incontinence ‘accidents’ and her confusion would also further reduce her residual self-care skills.
139. In Mr McKinistrie’s experience having informal carers working with and alongside paid carers tended not to work very well in practice. The agency employing the paid carers had duties to them under health and safety regulations which placed the agency at risk where a paid carer undertook tasks such as transfers with a family member. These regulations were ‘well-based’ rather than mere bureaucracy.
140. It was ‘very rare’ that informal care networks of family members, friends and volunteers were sustained. Providing free continence and personal care over a sustained period was a significant burden. Unpaid carers had other personal, family and work commitments which were likely to cut across Mrs C’s care. Unpaid carers would need to be trained in key areas such as handling, transfers, feeding, skin integrity, diabetes. Moving and handling could be two days training. The cost of training would need to be met.
141. On the issue of whether two carers at home were required day and night, Mr McKinistrie had not seen a thorough risk assessment dealing with how Mrs C’s care needs could be met at home. At S Care Home two carers were available all of the time but not providing care all of the time.
142. It was important to have a multi-disciplinary risk assessment (social worker, OT, SALT, physiotherapist, nurse, GP if involved) which clearly set out what care Mrs C requires, the likely consequences if she does not have that care, how these risks can be mitigated, why Mrs C needs two carers, when she needs them and the risks to her if she does not have that level of carer input. Mr C’s views needed to be included.
143. It would be easier for Mrs C to move back home, which was a familiar environment, than to move to another care home unfamiliar to her. The transition plan was the important thing. A trial period at home should not be dismissed out of hand but was only possible if a full risk assessment demonstrated that adequate care at home could be provided and the risks were acceptable. An increase in the duration and frequency of her visits home might be the starting point.
144. Mr McKinistrie was asked to consider the possibility of a home care package based on professional care first thing in the morning; attendance at a day centre between say 9am and 5pm; professional care during the early evening; one or two visits at night for toileting; and the balance of care at weekends (including nights) being provided by family and friends. It was worth considering, he said, but whether it was ‘doable was the problem’. It would have to be properly risk-assessed by a multi-disciplinary team and demonstrated to be practicable or impracticable. While reuniting her with her husband was an important principle that could not be at the expense of her safety, which was the other key principle: ‘The goal is safety — if that coincides with Mrs C being at home, that’s good’. Mr McKinistrie was not aware of any agencies that provided a change pad service at night.
145. Mr McKinistrie was questioned closely about whether he had modified or softened his opinion concerning the possibility of a return home since he wrote his two reports.
146. I found him to be an impressive witness for the same reasons as Mr GH and Ms EF. He was right to refer the court to the continued absence of a thorough multi-disciplinary risk assessment. Extra evidence is available since he wrote his report, partly because of the delays. Because he swears to give true evidence, he is also entitled to reflect on, review and modify his opinion as he thinks fit.
Possible alternatives/ways of dealing with care issues
147. Given Mrs C’s wish to spend more time with her husband and her attachment to her home, the court considered possible ways of enabling this. The court raised and explored various alternatives with the parties some of which are not often available given the state of public finances. These included:
· The possibility of Mr C living with his wife, as a privately-paying resident, in a residential placement so that they can continue to live together and share a room. Mr C himself was not willing to go down this path for very understandable reasons. He enjoys and values his home and his independence.
· The possibility of Mr C being one of two carers at home for the purposes of transfers and personal care activities. The care agency would need to consent to this and health and safety regulations, the need for training, Mr C’s own health problems and the history of conflict and disagreement with carers made this unlikely or unlikely to be sustainable.
· The cost of a six-week trial period at home. The local authority would not be willing to pay to keep her current care home place open, leading to further upheaval for her in the event that such a trial was unsuccessful. The cost of the care home is £560 per week and therefore this might, with some irony, be overcome by using £3,360 of her £8000 ex gratia payment in order to keep her place open.
· The possibility of NHS services consisting of GP, district nursing, occupational therapy and SALTs as required. Local services have not yet implemented NHS budget holding.
· Mrs C’s attendance at a day centre between say 9-10am and 4-5pm. On enquiry this would cost £32.60 with transport and £18.17 without transport. That would take up £163 of the £700 per week, leaving enough for 38 hours of care per week/19 hours of double-handed care outside of these hours. (Mrs C refused to go to a day centre in the past but, according to S Care Home, ‘likes people watching and enjoys the bustle’). 19 hours of double-handed care would allow for morning and evening visits Monday to Friday, leaving the weekend unsupported.
· Night-time paid care at home. Unfortunately there are no care agencies locally that provide a visiting night-time service.
· Increased visiting time at home.
· Older Persons CMHT support: her case is not open to a psychiatrist or the CMHT.
· Direct payments: these were tried but broke down for the same reason as other care packages: carers would not turn up or be late or on holiday, etc.
· Supplementing paid carer hours with family members, friends and supporters in the Italian community.
Other relevant considerations
The following considerations seem to me to be relevant considerations.
The risk of harm
148. If Mrs C returns home her husband’s views about the benefits of trying to help her to mobilise mean that there is a risk of injury to her. This is a significant present risk (although it may be that he can demonstrate over time that he is able to follow mobility guidelines which he disagrees with).
149. There are always some risks associated with swallowing and feeding in the case of people who have dementia, both in and outside care homes, but the evidence that such risks are significant and attributable to Mr C’s conduct was poor.
Mr C’s age and health
150. Mr C is himself in his 70s and has had some significant health problems of his own.
151. Mr C has capacity to accept risks to his own health.
152. Therefore, my only concern in relation to his health is how long he would be able to continue to provide the care for her that he will have to provide if she returns home, including night-time continence care.
153. Given the lack of local authority financial support relative to his wife’s assessed care needs, I think that it is unlikely that he could sustain this for very long without his own health and conduct being compromised. It would be gruelling for him and growing frustration and anger at the lack of local authority support would be a natural, indeed almost inevitable, consequence.
Medical condition, prognosis and life expectancy
154. There has been no assessment of Mrs C’s entitlement to NHS Continuing Healthcare. I can only proceed on the basis that the nature, intensity, unpredictability and complexity of her needs are not of a level which indicates a primary need for healthcare.
155. Despite having had a long time to obtain it, there was no evidence on life expectancy or prognosis, in terms of rapidity of decline and future care needs.
The benefits of a move to an alternative care home
156. As the hearing progressed I felt that the ‘third option’ of a move to another care home was not really pressed.
157. Mr C did tell me that he was not very satisfied with the quality of care at S Care Home. In particular, he sometimes finds that his wife is wet. However, overall, I was satisfied that S Care Home provides Mrs C with a reasonable and acceptable level of personal care. Given the well-known risks of moving people with dementia to unfamiliar settings, a move to another care home because of this unparticularised concern would not be in her best interests.
158. The care home numbers Italian speakers amongst its staff and residents and is on a bus route to the matrimonial home. Mrs C is settled there and a different care home would not be likely to have significant advantages.
Quality of paid care at home
159. In one very legitimate sense, Mr C has every right to expect paid carers to be reliable and professional and to adhere to agreed care plans, visiting times, etc. Unfortunately, as he himself knows, this is often not the case. That is consistent with what I hear in this court on a regular basis. It is very unlikely that he would not have to experience and cope with similar frustrations if his wife returns home.
Balance sheet analysis
160. I accept the following findings as being in favour of continued residence at S Care Home:
a) Because of Mrs C’s medical condition the provision of consistent and understandable care is fundamental.
b) The present evidence is that Mrs C requires 24-hour care. Furthermore, she requires two carers for several care tasks such as the use of a standing hoist, sliding sheets, etc. While in reality many private carers do provide such care without incident on a single-handed basis, health and safety regulations and the duty of care of agencies towards paid care staff mean that two carers will be necessary and the budget does not enable this. It is unlikely that Mr C can be one of them.
c) The local authority cannot or will not fund more care at home than in 2010. Only £700 per week of public funding is available. However, Mrs C’s needs have increased since then and her husband’s health is worse.
d) The proposal that one can get round this limitation by supplementing professional care with a network of carers consisting of family members from Italy, friends and volunteers was an idea rather than a practical proposal. A combined care package consisting of paid carers and volunteers would be extremely complicated and compromised by difficulties of language and communication. No family members wrote to the court or provided witness statements stating that they are able and willing to do this or to do it as part of a sustainable rota. There is no evidence that they can afford to spend three months at a time in England or that Mr C can afford to house and feed them or to pay their fares. Indeed, he is quite heavily in debt. Volunteer carers would not ‘stick around’ if Mr C makes remarks of the kind that he made to Ms M when she had a medical appointment. It is difficult to see it working.
e) Unpaid carers would need to be trained in key areas such as handling, transfers, feeding, skin integrity, diabetes. Many of those whose names were suggested do not speak English. There would be communication/language issues in terms of co-working and summoning help in an emergency.
f) No one knew of an agency which provides a simple ‘change pad’ service at night.
g) At present there is no workable proposal for providing night-time care to Mrs C if she returns home. Mr C could try to see to her needs himself and from time to time a family member might be there to help. However, that is speculation.
h) It is likely that Mr C will be tempted to encourage his wife to mobilise at home and that this carries with it a risk of bruising.
i) On Mr C’s own evidence, conduct issues since the end of 2010 cannot be attributed to alcohol consumption. Problems have continued albeit at a lower level. Emotionally Mr C will find it very difficult indeed to keep his sincerely-meant promises with regard to his future conduct. He finds it very difficult to cope with inconsistency and unplanned deviations from the care place. Given the lack of local authority financial support relative to his wife’s assessed needs, I find that it is unlikely that he could sustain providing significant care, including night-time continence care, for very long without his own health and conduct being compromised. It would be gruelling for him and growing frustration and anger at the lack of local authority support would be a natural, indeed almost inevitable, consequence. As one witness put it, ‘temper and anger are his downfall’.
j) Relationships between Mr C and professional carers are already extremely strained. That is not a solid foundation on which to construct the return home of a vulnerable adult based on a care package of co-operative family-professional working. It is optimistic, indeed unrealistic, to expect that the local authority and Mr C will be able to suddenly forge a healthy working relationship based on mutual self-respect of the kind necessary to support Mrs C.
k) Relatively few carers have been willing to accompany Mrs C to the family home and Mr C’s attempts to utilise the direct payments scheme were not successful.
l) Mrs C is settled at S Care Home, her personal care is attended to and she is comfortable. The home has the benefit for her of a number of Italian-speaking staff and residents. She sees her husband often and has a reasonable quality of life.
161. I accept the following findings as being in favour of a return home:
a) The couple have been married for over 50 years. Very good reasons indeed are required in order to separate a couple who have lived together for that length of time and who chose in a legal ceremony to rely on each other for their future needs.
b) Mrs C’s present wishes and feelings are that she would prefer to live at home with her husband.
c) Prior to Mrs C’s removal from the family home in June 2010, the local authority took the view that whatever the care difficulties, concerns and risks it was in Mrs C’s best interests to live at and be cared for at the family home.
d) Mrs C will be able to sustain her relationship with her husband, family and friends in a better way than at S Care Home.
e) There is something of a lack of social stimulation for Mrs C in the care home. She has not been taken out of the care home for ‘quite a few months’ other than to visit her husband. Over the winter months the manager ‘probably could not recall’ her being taken out into the garden.
f) A residential placement carries with it certain deficiencies because the interests of the individual need to yield to the interests of the group, for example in relation to being changed. A person’s personal care can be more likely to be attended to promptly at home.
g) Despite his own ill-health, Mr C has demonstrated a clear and laudable commitment to ensuring that his wife receives good quality care.
h) While the assault cannot be condoned, it has to be understood in context. That context is that there is no known previous conduct of that kind during 50 years of marriage; he had recently lost both of his parents, was bereaved and drinking to excess; he was struggling to cope with his wife’s needs; he feared that she would die if she would not eat; he became angry and frustrated and lost his temper. That he did so once and assaulted her raises real issues about how he would cope now, given that her care needs have increased, but does not of itself make him unsuitable to be her principal carer. One has to look at what, if anything, has changed and what support is available to the couple.
i) Mr C has not drunk alcohol for some years. He has therefore demonstrated an ability to modify his conduct in a key area. 2015 is different from 2010 and Mr C asks for a second chance to prove that he had moved on.
j) Mr C would be very motivated to comply with any conditions concerning his future conduct.
k) There are relatively few benefits to living at home if one is not free sometimes to ignore professional opinion.
l) The force of the contention that Mrs C requires 24-hour care for reasons of personal dignity is somewhat reduced by the fact that she may be changed by male care home staff.
m) Mr C does not bear sole responsibility for the lack of a working relationship with local authority. Too often, the local authority’s focus has been on Mr C, not assessing Mrs C. According to his counsel, ‘the approach to Mr C had been a type of institutional complacency. Following his conviction, there was a perception that he was an awkward man and premature conclusions were drawn ruling him out of being a carer for his wife. For this reason a great deal of the local authority’s evidence had been concerned with 2010 not 2015 and the local authority had not applied to the court until some 2½ years had elapsed following Mrs C’s admission to residential care.’
n) The court should take the opportunity to test Mrs C’s ability to live at home.
162. In my view, there is merit to many of these points. However, it remains the case that:
a) Mrs C’s care needs are higher now, and harder to meet, than in 2010. For example, her mobility, continence and expressive speech have decreased, she requires more equipment and often the assistance of two carers.
b) Only £700 per week is available.
c) Even if a day centre is utilised, there is no sustainable night-time care or weekend care package in place and there is no budget for it. Nor do we yet know whether Mrs C would be willing to spend time at a day centre.
d) Mrs C is doubly incontinent and it is important that she does not go without personal care for significant periods of time at night.
e) The proposal that the number of available paid-carer hours be supplemented by family members, friends and supporters in the Italian community is little more than an idea or hope. There is no sustainable, solid, proposal in existence.
f) No one was able to identify or provide details of charities or voluntary organisations which could help.
g) The significant efforts made by Ms EF to support Mrs C at home up to June 2010 were unsuccessful.
h) Relationships between Mr C and professional carers are extremely strained. That is not an solid foundation on which to construct the return home of a vulnerable adult based on a care package of co-operative family-professional working.
i) Mr C can be easily irritated and angered by any care shortcomings or perceived shortcomings and, as Ms EF told me, ‘when things are out of control he cannot cope’. That is relevant given that previously his inability to cope expressed itself in the form of an assault.
j) Moving in one go from weekly visits home to (say) a six-week trial living at home is too big a leap given the risks and the lack of a support package, let alone a sustainable support package. The more so given that the marital home may need to be sold in the near future because of sizeable increasing debts. That will be a highly stressful period for Mr C who will also be trying to modify his conduct and to comply with the requirements of a trial. It is not known how much money will be left over after debts are paid and what it would buy.
The standard authorisation and the best interests requirement
163. Turning to the deprivation of liberty best interests requirement, I find that the four conditions relevant to that requirement are satisfied:
Is Mrs C being detained in the care home for the purpose of being given care or treatment in circumstances which amount to a deprivation of her liberty?
164. It was common ground that she is and the court agrees. She is subject to complete and effective control over her care and movements and is not free to leave.
Is this in her best interests?
165. I have already explained why I find that it is. At home Mrs C would not receive the care which she requires as matters presently stand. There are four main reasons for this: the local authority’s funding decision (which I am bound to accept); the lack of a working relationship between Mr C and professional care providers which I can rely on to deliver care at home from week to week; the fact that Mr C has not been able to construct a realistic alternative care package; significant concern about whether Mr C will be able to cope with the stresses of being a significant carer for his wife and the possible effect of such stresses on his conduct.
Is this necessary in order to prevent harm to her?
166. I find that it is because at present a return home would entail real risks to Mrs C’s physical health (continence care and skin integrity; risk of bruising due to impaired mobility and/or attempts to deliver single-handed care) and mental health.
167. The risk to her mental health is that home life will be stressful and punctuated by frustration and disagreements about her care. At this time the best quality of contact with her husband would not, in my view, be achieved by a return home. Their contact at home during the period leading up to the assault was fraught with difficulty and stress. They have a better relationship once more now that contact is less intense and their time together is not by undermined by frustration.
Is this is a proportionate response given the likelihood of her suffering harm and the seriousness of that harm?
168. A continuance of residential care at S Care Home is proportionate in my view having regard to the risks which I have mentioned.
169. I would be surprised if circumstances change sufficiently in future for me to be able to decide that it is in Mrs C’s best interests to return home. At the same time, it is likely that more can be done to explore ways of increasing the amount of time that she can spend at home with her husband.
170. In my view, the following steps would be in her best interests:
Appointment of a deputy for property and affairs
171. An application has been made by Mr Rakesh Mattu of Premier Solicitors, Bedford, to be appointed as Mrs C’s deputy. He describes his relationship with Mrs C as ‘Solicitor appointed by the local authority’. Mrs C’s social worker provided the capacity assessment.
172. I assume that this means that this local authority does not take on deputyship orders and has an arrangement with a local firm or firms of solicitors. There is no indication of whether Mr C was considered.
173. I do not consider that it is likely to be in Mrs C’s best interests to have as deputy a ‘solicitor appointed by the local authority’. While no doubt Mr Mattu understands his professional obligations, the probable need to sell the matrimonial home, the use or investment of the proceeds of sale and care funding issues may well give rise to a conflict of interest. I can be more specific if required.
174. While generally a spouse with capacity would be the preferred deputy, I think there is much to be said in this case for appointing an independent deputy, at least for the time being. It seems to be the case from the oral evidence that Mr C has incurred significant debts maintaining the family home and providing food for his wife’s visits, etc, which in essence are actually joint liabilities. If so it may be appropriate and in Mrs C’s best interests to settle them from the proceeds of sale of the matrimonial home. An independent deputy can assess this and advise the court. The deputy can also make the necessary application under section 36(9) of the Trustee Act 1925 with regard to the sale of the matrimonial home.
175. Once debts have been paid off and a bungalow purchased (if that remains the plan) there will be some certainty as to where home will be in the future and some reduction of the great stress that Mr C is under. It will also be clear what resources are left, in terms of capital and income, to supplement home visiting and home care. Knowing that is really a starting point for any sustainable arrangement moving forward. One also needs to know how much benefit Mrs C will get from visits to a new home: it will not be the home to which she has long been attached but it will have many familiar things in it. Realistically this will take between 6 and 12 months.
176. In my view, and as indicated, it is not realistic to consider a return home at present given the lack of local authority funding, the lack of a sustainable alternative care package, the uncertainties regarding the sale of the family home, the poor working relationships and doubts about how Mr C can deal with future frustrations.
177. There is reason to believe that Mrs C would enjoy more frequent visits home if these can be arranged. One problem, which the deputy will need to address, is that Mr C cannot easily afford increased visits because his benefits do not stretch to financing food and similar basic expenditure. It seemed to me that he is living in poverty. There is Mrs C’s ex gratia payment which can be utilised.
178. If, and it is if, a programme of visits to the new home increasing to three times a week is successful in the sense that (a) Mrs C is enjoying this increased time at home and (b) Mr C is able to demonstrate that he can comply with reasonable and agreed professional guidelines without significant incident, then in my view it would be in Mrs C’s best interests to consider a trial period at home in the unlikely event that a package of care can be constructed by Mr C or on his behalf which is affordable and likely to be sustainable. Such a care package would need to make suitable provision for night-time and weekend care and be risk-assessed by a multi-disciplinary team, in the way envisaged by Mr McKinistrie.
179. It is premature to say that no significant progress can be made in terms of the time Mrs C spends at home and to take a definitive view that her husband’s conduct cannot further improve. It will, I think, be possible to come to such a view once the stresses of poverty and a pending move are taken care of and one can see how he now copies with increased carer contact at home. Given my reservations about the local authority’s approach, it is appropriate for the court to keep the matter under review until it is satisfied that no further significant progress is possible.
180. In my view, moving forward it is not in Mrs C’s best interests that her social worker’s working relationship with her husband is so strained.
Conditions of the standard authorisation
181. The two primary purposes of attaching conditions to a standard authorisation are to limit the deprivation of liberty to the minimum necessary and where possible to ensure that a care package is in place which may allow or enable their deprivation of liberty to end at a later date.
182. With that in mind, I intend to attach the following conditions to the standard authorisation:
a) The managing authority and the supervisory body are to ensure that within available resources (including her own financial resources) all reasonable steps are taken to seek to arrange an increase in the number of Mrs C’s visits to the marital home to three visits per week.
b) If this is not practicable because it is asserted by the managing authority and the supervisory body that her husband’s conduct makes it impracticable then the matter shall be returned to court for a review.
c) The matter shall in any event be referred to the court for a review within 12 months, with a time estimate of half-a-day unless the parties agree a paper review.
d) Contact with her husband is not to be supervised (but may be supported provided that carers are first given clear instructions as to the difference).
Whether the relevant purpose can be achieved in a less restrictive way
183. In reaching my view, I have had regard to section 1 and the need for me to consider whether the purpose for which the act is needed can be as effectively achieved in a way that is less restrictive of Mrs C’s rights and freedom of action. For the reasons given above I do not believe so.
Compliance with the European Convention on Human Rights
184. Implicit in the best interest analysis is a consideration of Mrs C’s Convention rights and those of her husband.
185. I accept that not permitting a person to live at home, and any limitation of family contact and the usual right of spouses to live together, are interferences with Article 8 rights and that they must be proportionate and for a permitted purpose.
186. In my opinion, the interference is prescribed by law, proportionate (to the identified risks) and for a permitted purpose (his health). The arrangements outlined will protect and promote Mrs C’s health and well-being and hopefully also allow contact with her husband at home to increase in a sustainable way that brings her enjoyment and is in her best interests.
187. The proceedings have been bruising. I would ask all of the parties to work together over the coming 12 months to see what further progress can be made to improve Mrs C’s contact with her husband. If everyone commits themselves to that it will, I think, become clear what final arrangement is in Mrs C’s best interests.
District Judge Eldergill
188. After handing down the above judgment, I received submissions on the issue of whether it should be published. Mr C and the Official Solicitor (on behalf of Mrs C) requested publication. The local authority opposed publication. My decision was that it be published and I gave the parties my reasons for that decision.
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the incapacitated person and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
 Sir James Hannen in Durham v. Durham  10 PD 10; 1 TLR 338.