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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> GA, Re (Challenge to Standard Authorisation) [2020] EWFC B67 (18 December 2020) URL: https://www.bailii.org/ew/cases/EWFC/OJ/2020/B67.html Cite as: [2020] EWFC B67 |
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AND IN THE MATTER OF GA
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B e f o r e :
____________________
AA |
Applicant |
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- and - |
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GA (by her litigation friend, the Official Solicitor) -and- An NHS Clinical Commissioning Group |
Respondents |
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Mr Benjamin Harrison (instructed by Cartwright King Solicitors) for the First Respondent
Mr Parishil Patel QC (instructed by Browne Jacobson) for the Second Respondent
Hearing: 8-10 December 2020
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Crown Copyright ©
HHJ Pemberton
i. conduct these proceedings.
ii. make decisions as to her residence; and
iii. make decisions as to her care and support.
Background
Legal framework
(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.
…
(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).
…
(11)"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.
'The most that can be said, therefore, is that in considering the best interests of this particular patient at this particular time, decision-makers must look at his welfare in the widest sense, not just medical but social and psychological ……. they must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would be likely to be; and they must consult others who are looking after him or interested in his welfare, in particular for their view of what his attitude would be.'
'i) The first is that the statute lays down no hierarchy as between the various factors which have to be borne in mind, 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: see, for example, Crossley v Crossley [2007] EWCA Civ 1491, [2008] 1 FLR 1467 , at para [15] (contrasting "the peripheral factors in the case" with the "factor of magnetic importance") and White v White [1999] Fam 304 (affirmed, [2001] 1 AC 596) where at page 314 he said "Although there is no ranking of the criteria to be found in the statute, there is as it were a magnetism that draws the individual case to attach to one, two, or several factors as having decisive influence on its determination."…'
"People with mental capacity do not expect perfect solutions in life, and the requirement in Section 1(5) of the 2005 Act that '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 his best interests' calls for a sensible decision, not the pursuit of perfection"
Application of the law to the evidence in this case
and the need for the Staff team to understand and facilitate rapid change/turnover in activities.
'GA requires a high level of support and supervision throughout the day to maintain her safety when engaging within day to day tasks. She has little danger awareness and within her current environment kitchen facilities are locked to ensure her safety. She will often throw items with little awareness of danger to self, others, or property. Throwing items does not appear to be in aggression but rather a play based, cause and effect seeking response for her. She requires support with her antiepileptic medication (potentially lifesaving) and with her complex sensory processing which in turn result in functional difficulties. She also needs support throughout the night to encourage a good sleep hygiene and monitor potential seizure activity. GA has Behavioural Dysphagia and this means that she is at risk of choking and aspiration by overfilling her mouth with food and drink, eating and drinking at a fast pace, vocalising with food and drink in her mouth and walking with food and drink in her mouth.'
'We remain of the view that a family home would struggle to meet the recommended environmental features and, furthermore, a family cannot possibly provide the level of attention and interactions described above, what would lead to an increase in the frequency and intensity of problem behaviours. This would in turn result in increased risks to both herself and to family members, particularly children. It is very likely that her medication would be increased if her environmental and relational needs were not met appropriately at the family home. A specialist home is able to provide a highly structured environment and teams of experienced staff who can provide the level of intensive interaction she requires whereas this would be exhausting and unattainable for a family unit.'
That is my judgment.
HHJ Pemberton
17 December 2020