UF v X County Council & Ors (No.2) [2014] EWCOP 18

[2014] EWCOP 18Case No 12371457
COURT OF PROTECTION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 31/07/2014
Before
MR JUSTICE COBB
Between
UFApplicantX County CouncilRespondentAFRespondentPKRespondent& othersRespondentRe UF (No.2)Respondent
Nicholas O’Brien (instructed by Official Solicitor) for Applicant (UF)Martin Downs (instructed by County Solicitor) for First Respondent (X County Council)AF in person for in personPK in person for in personNo other respondent was present or representedHearing Hearing dates: 21-22 July 2014
JudgmentMR JUSTICE COBBThis 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.The Honourable Mr. Justice Cobb :Introduction
[1]These proceedings concern UF, a lady of 84 years of age; she has been diagnosed as suffering from vascular dementia of a moderate level, with associated behavioural and psychological symptoms. She is currently residing in a care home which I shall call for present purposes ‘The Elms’. The proceedings were launched by AF, UF’s youngest daughter, in August 2013 as a challenge under section 21AMCA 2005 to the standard authorisation of deprivation of liberty.[2]The remit of my enquiry at this hearing was defined by order of Charles J in May 2014, thus: i) Is it in UF’s best interests to return to her home to live with a contingency plan of maintaining her current placement for a period of time? ii) Should direction be given to the LPA finance about releasing equity from UF’s property to pay for her care? iii) Should the LPA finance be replaced by a Deputy appointed by the Court? iv) Would any care regime at home still represent a deprivation of liberty?[3]Charles J described the issues which have fallen to me to determine in these terms (Re UF [2013] EWCOP 4289 §5):
“At the heart of the dispute, again not unfamiliar to the Court of Protection, is the choice to be made between care in a residential home and care at home with a support package which provides physical safety, and many of the arguments in favour of the support package at UF's home relate to the promotion of the emotional security and happiness of UF. These are very human stories and issues. They present, of course, members of the family with difficult issues and problems. Also, but without the same emotional element, they present employees of the relevant local authority and those from whom members of the family seek advice with practical problems and with problems arising from the technicalities of the MCA and in particular the labyrinthine provisions relating to its DOLS”
[4]At an interlocutory stage of these proceedings, Charles J, delivered a judgment ([2013] EWCOP 4289) which dealt inter alia with: i) The mechanism for challenging a standard authorisation under section 21A; ii) Appointment of AF (a family member) as the litigation friend for UF; Charles J terminated that appointment, not excluding as a matter of principle that a family member could act as P’s litigation friend, but indicating that he would look upon such an application with a considerable degree of caution; iii) Funding issues, given that when AF made the application as UF’s litigation friend, UF was, at that point, eligible for non-means-tested public funding as the subject of a standard authorisation; the Legal Aid Agency, implementing an approach set down in Regulation 5(1)(g) of the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 (which came into force on 1 April 2013), took the view that, as UF was no longer the subject of a standard authorisation, she was no longer entitled to non-means-tested public funding.[5]There is no issue at this hearing that UF lacks capacity to litigate, to make decisions about her residence or her package of care. At an earlier hearing before Holman J (January 2014), this aspect was considered and final declarations made.[6]At this hearing, I heard oral evidence from Mr. Jonathan Watkins, Independent Social Worker, from PN the social worker at X County Council, from AF and PK. I also received a considerable bundle of relevant documentary evidence, which I read with care.[7]By this judgment, I propose to address the following issues: 1 Introduction (above) 1-6 2 Background history 8-18 3 Position of the parties 19-25 4 The options 26-30 5 §2Q.(i) Best interests: discussion 31• What is meant by ‘home’? 32-43• UF’s wishes 44-50• UF’s daily care needs 51• Managing UF’s behaviours safely and consistently 52-57• Physical comfort 58• Medical care 59• Socialisation 60-61• Cultural heritage 62-63• Financial implications 64-66• Disruption 67-69• Sustainability 70• Measuring success 71-72 6 Recommendation of Jonathan Watkins 73-81 7 Less restrictive option 82-85 8 Best interests decision 86-94 9 §2Q.(ii) Equity release to pay for her care? 95 10 §2Q.(iii) Should the LPA finance be replaced by Deputy? 96 11 §2Q.(iv) Care at home and deprivation of liberty 97-99 12 Conclusion 100

Background history

[8]UF was born in Germany in 1929, but has lived in England since she was in her early 20s. She was married twice; by her first husband she had two children, a son (“PK”) and a daughter. By her second marriage she had three daughters, including “TT” and “AF”. In spite of spending the majority of her life in England, she is said to have retained her interest in German life, enjoyed watching German television, and continued to eat German food. Even now, she retains the facility to speak German, and has German friends.[9]From about 1971 until March 2013 UF lived in a small three-bedroom property (which I shall call, for the purposes of this judgment, “Ridgeways”) in the area of X County Council. In or about 2007 or 2008, UF was formally diagnosed with dementia, which had superimposed upon a longer-term anxiety. In the years which followed that diagnosis, UF received a home care package which comprised four visits per day, with carers preparing her meals, prompting her with medication, and doing household tasks. In 2011, she was assessed by her GP as suffering moderate vascular dementia, but still retaining sufficient competence to grant a Lasting Power of Attorney (LPA). In the following summer (2012), and following a further assessment by her GP who was concerned about a deterioration in her condition, TT moved in to care for UF and assist her in her daily life. This arrangement was not altogether successful, and by the end UF was verbally and physically aggressive towards TT.[10]In September 2012, UF entered into a LPA concerning her property and affairs, appointing two local solicitors as her attorneys; this was certified by her GP in October 2012 and registered in January 2013. In the meantime, and during the last weeks of November 2012 concerns were raised by adult social services about the deterioration of UF’s mental health. She was said to be verbally (and even physically) aggressive to TT and her carers. An enhanced care package involving daily visits from a care agency was implemented. On 23 December 2012, the local mental health team assessed the situation; they understood that the family were expressing concerns about their ability to cope with UF, and as a result UF was admitted to the local hospital under section 2 of the Mental Health Act 1983 (admission for assessment). There remains some controversy within the family, and between family members and the local authority, about the appropriateness and/or need for this admission; it is not necessary for me to determine the issue. The admission was short-lived, and she was discharged back to her home in early January 2013.[11]There followed a period of about four weeks in which UF was cared for at home with the resumed care package: two support visits per day, visits to the day centre, and regular CPN visits; TT remained in the home. In early February, the family (though not AF) indicated that they could no longer cope with UF and she was placed at The Elms, a residential care home (with approximately 18 residents) in the same town as Ridgeways; The Elms specialises in the care of older people with dementia. UF was placed initially in a ‘crisis’ bed but has now been there for 17 months. PK and his full sister also live in the town.[12]There is controversy within the family about the circumstances in which UF was admitted to The Elms in February 2013; AF considers that this was done without proper consultation with her – a view which she regards as validated by TT’s comment to Mr. Watkins that she “tricked” her mother into making the journey there.[13]Periodically in the early days of the placement, UF was admitted to the local NHS hospital with back pain, and was prescribed morphine. AF is unhappy about the dosage of pain relief, believing it to have had an adverse effect on UF’s mental capacity.[14]UF receives regular visits from AF, PK, and PK’s sister. From time to time, PK takes his mother back to his house. Over Christmas 2013, UF spent four days with AF and her partner at AF’s home. This was a successful visit; AF described how her mother was able to complete physical activities (such as walking distances) which were not regarded as achievable in The Elms. The care manager reported that UF returned from the Christmas break “in a happy state and not anxious”.[15]Since being in The Elms, UF has been the subject of urgent and then standard authorisations; since August 2013, the authorisations have been granted by the court in accordance with the guidance in Re HA [2012] EWHC 1068 (§8-10), and then extended in accordance with Charles J’s decision in Re UF.[16]On 28 March 2014, Theis J directed that it would be lawful for the parties to make arrangements on UF’s behalf for her to have a trial period of being cared for in her own home, and to make arrangements so that all necessary care is delivered. That has not in fact happened, awaiting this fuller enquiry on the evidence.[17]UF is described as a feisty person, “independent, capable and forthright” (per AF). AF described her mother as “steely” and in her oral evidence to me referred to her mother as “cellular” (by which I understand she means self-contained):
“she is a very strong individual person; she likes her own home; doing her own thing; she has never been into things like the W.I.”
. The care manager at The Elms, by contrast, described UF as sociable, rarely spending time in her own room. PK agreed with AF in describing his mother as “strong and had her own views on everything”; he also described her (to Mr. Watkins) as a “very proud” woman. UF is said to have a “good sense of humour” (PK’s sister), although could be “angry, bitter and destructive” (per TT, who cared for her mother for 6 months); UF’s GP reported that she had been “unpleasant and demanding” for many years, responding “aggressively” to visits from the GP; she had been removed from at least one GP register. TT described UF as a “fashionable” person, and proud of her house; the provider of the care package when UF was last living at Ridgeways described her as “lovely … all the carers loved her”.[18]UF’s children are bitterly divided about the arrangements for UF’s care now, and in the future. PK, his sister, and two of his half-sisters consider that UF is well placed at The Elms and firmly believe that she should remain there. AF (the youngest of the sibship and believed by her, and others, to have been UF’s most trusted child) strongly believes that this is not in her interests. This dispute thinly veils a linked dispute about the historic alleged mismanagement &/or disappearance of funds and property owned by UF, and the future management of UF’s finances (see on this point, the second quote from the oral evidence in §22). Position of the parties.[19]The Official Solicitor as applicant, on UF’s behalf, advocates that it is in UF’s best interests that she should be permitted to return to Ridgeways, as this is: i) In accordance with her wishes; ii) The least restrictive option; and iii) Feasible, both practically and financially. The Official Solicitor nonetheless recognises that(a) UF may not in fact respond positively to a return (it is acknowledged that there would need to be a trial period of perhaps a month, during which her place at The Elms would be kept open) and that(b) it may not last more than 12-14 months or so in any event, given that UF’s financial resources would by then have expired.[20]The Official Solicitor commissioned a report from Mr. Jonathan Watkins, Independent Social Worker. He is an experienced social worker, who has prepared many reports in Court of Protection cases. He marginally favours UF returning home, describing this as “positive risk taking”.[21]The Official Solicitor is supported in this application by AF (who appeared in person at this hearing), an undoubtedly devoted and loving daughter, and a passionate advocate for her mother, UF. She is an articulate woman who expressed her point of view with vehemence. Her opinions (expressed both in writing and in oral evidence to me) tend to be dogmatic; she has a confident and unshakeable belief in the correctness of her own opinions, and believes that she has a particular and unique ability to assess the situation concerning her mother. She told me, when cross-examined by PK, that “I feel I know her (i.e. UF) better than anyone. We have a closeness which is envied by everyone. It is unrivalled…”. AF is unrepentantly critical of X County Council, and separately (and in similar measure) of the care regime at The Elms. Her evidence on some key issues lacked a degree of objectivity or nuance; this was not at all surprising given her understandable emotional investment in the issue and the outcome; however, I was left by the end of the hearing considering that I should treat her opinions with a little caution.[22]Although not an expert in the field, AF appeared to cast doubt on the diagnosis of vascular dementia in her mother (acknowledging nonetheless that she “has dementia type problems and symptoms”), and believes that the drug treatment regime has caused or contributed to her mother’s current condition (“I also believe that she has been taking drugs incompatible with her condition which have exacerbated the effects”). She went further in questioning (albeit not formally challenging) the capacity declarations made by Holman J. at a hearing earlier this year. On that particular issue, I note a potential inconsistency in her evidence: in her statement filed in November 2013 she stated, in terms, that she believed that UF had capacity to make decisions as to her future residence, yet in a subsequent statement (May 2014) she indicated that she believed her mother had lacked capacity (fourteen months earlier) to enter the LPA in September 2012. AF has maintained that her mother is agoraphobic; no other person with whom Mr. Watkins consulted (family, medical or other professional) has verified this opinion/diagnosis. I wondered whether she had invented or exaggerated this in order to lend weight to her argument that UF should be living in her own home. She spoke in disparaging terms about The Elms, believing that her mother has been “completely suppressed in almost every way” while residing there (she has, as it happens, separately made a number of formal complaints about the care offered to her mother). In a witness statement filed for this application, AF said this:
“my mother, at 83 years old, is not gifted with copious amounts of years left to live and I ask the court to return her to her home to put right what has clearly been possibly one of the most odious and gross miscarriages of justice, largely executed by persons suffering from personal agenda, which has in turn allowed incompetence and a complete disregard for an individual’s liberty to flourish and a quality of life that has been allowed to be overlooked.”
(emphasis added) This attack is targeted primarily at her siblings and half-siblings, but also at X County Council. She further stated, in the same document:
“I believe that my mother should be returned to her home with immediate effect with a care package that befits the condition that she now finds herself in following all of these events, this care package should be funded entirely by [X County Council] by way of compensation in order to put right the wrong that they have supported/allowed/promoted since 2012. I absolutely insist that no actual financial compensation be awarded to my mother as I would not want siblings to benefit from an enlarged estate in the event of my mother’s demise.”
(emphasis added).[23]I felt that AF had an unrealistically positive view of her mother’s capabilities; she is reported to have told Mr. Watkins (an account which I accept) that “UF would manage (i.e. at Ridgeways) if arrangements were made that were the same before TT moved in” (i.e. reverting to the care regime available two years ago); such a package would involve no night care; on further reflection she felt that night care was important. It is evident from all that I have read that this level of care would be wholly inadequate to care for UF.[24]X County Council has known UF for some time; its experienced social worker spoke with considerable knowledge and empathy for UF and the family. The authority advocates strongly that it is in UF’s best interests that she remains at The Elms, where she is being well cared for and where she has now settled. They invite me to consider that, when the evidence is taken as a whole, it is not possible to reach a confident conclusion on UF’s expressed views (which are heavily relied on by the Official Solicitor, Mr. Watkins, and AF) and/or they invite me to ascribe these views less weight.[25]The view of X County Council is shared by PK (who appeared in person at this hearing), and UF’s three other children (who did not). PK struck me as a caring man, with a genuine wish to do the right thing for his mother. I carefully considered whether PK’s stance was motivated to any extent by a fear that he would become drawn into the day-to-day dramas of his mother if she were living back in her home nearby (this was a characteristic of her earlier life there: PK would receive multiple telephone calls in the day and night). I did not think that this was so. I found him to be genuine in his view that UF was indeed better placed at The Elms. I reject any suggestion, implied by AF if not express, that he was taking this stance in order to benefit sooner rather than later from the sale of Ridgeways.

The options

[26]The two options have been carefully scrutinised by the court; the professional parties (the Official Solicitor and local authority) have each been supported by one side of the family dispute.[27]It is in a sense easier to assess the continuation of UF’s care at The Elms; the care arrangement has been in place for seventeen months and it is proposed that this be continued more or less as it is. It is accepted by all but AF that the care regime at The Elms has broadly met UF’s needs well.[28]If UF were to return home to Ridgeways, an independent care agency would have to be engaged to provide a reasonably intense package of care, involving initially the engagement of at least two carers.[29]X County Council would play a part in the arrangements under either option, more directly involved if UF remains at The Elms. PN advised me that the local authority would offer a degree of support/intervention even if UF were placed at home:
“My role is to liaise with the family and the agency and discuss how it is going and how we need to make referrals to agencies elsewhere; my responsibility is not to manage the staff team; my role as a social worker is to supervise the package of care. Plus reviewing to see how it is going. Once done a 12 week review, we would then close the case if there were no concerns; we would conduct an annual review if there were no concerns.”
In a document filed with the court following the hearing, the local authority has indicated that they would offer the following package of support in the event of UF returning to Ridgeways: i) X County Council would look at re-allocating this case to the mental health team; ii) A social worker would visit UF at The Elms in advance of any move; iii) A social worker would visit UF twice within the first four weeks of placement to see UF and to observe care in the home as well as to consider the care plan for UF and would be in regular contact on the telephone with all the interested parties; iv) Approximately 12 weeks after UF moves home, X County Council would seek to convene a review meeting of all interested parties; v) It is highly probably that X County Council would decide that UF’s situation should be kept under review thereafter – particularly as concerns an assessment of risks and levels of potential risk/harm; vi) It is likely that X County Council would also review UF’s situation again at the point at which she had been at home for one year; vii) X County Council Adult Services SW would not be a formal care co-ordinator; viii) The CPN would take on the role of the mental health care co-ordinator; and ix) It is understood that the independent care provider will be providing a manager who will provide off-site management for their carers.[30]The cost of The Elms is c.£2,200 per month, which is largely paid by UF. The cost of the arrangement by which UF were placed at home would be significantly more (£7,583 per month is suggested). It is proposed that the cost of care could be met under a deferred payment agreement set up by the LPA finance, using her capital: this is in accordance with the type of arrangement authorised by DJ Eldergill earlier this year in Westminster City Council v Sykes [2014] EWHC B9 (COP).

Best interests

[31]In reaching a view about UF’s best interests, I take into account (per section 4(2)) “all the relevant circumstances” surrounding UF’s circumstances and plans for her future care, including: i) UF’s wishes (section 4(6)); ii) UF’s daily needs; iii) Managing UF’s behaviours safely and consistently; iv) Medical care; v) Socialisation; vi) Cultural heritage; vii) Financial implications; viii) Disruption; ix) Sustainability; x) Measuring success of the arrangement.[32]What is meant by ‘home’? Critical to my appreciation of UF’s wishes, and her perception of her current life, I have sought to gain some insight into what UF means when she talks of ‘home’. A competent, capacitous, person can generally easily identify his or her home, defined by the place he or she lives, or lives for most of the time; or the place a person keeps his/her treasured and personal possessions. If ‘home’ is not readily defined by those characteristics, it may be the place which represents familiarity and emotional security – the place where a person feels most settled. Given the significance attaching to UF’s wishes in this debate (i.e. that she wishes to be at ‘home’), it has been necessary to examine with a little care UF’s reported comments about being ‘at home’ or wanting to ‘go home’, specifically: i) When talking about ‘home’ is UF specifically referring to the properties, The Elms or Ridgeways? ii) Is UF referring to her emotional state of feeling settled in a place? iii) Does she, in fact, erroneously believe that she is at Ridgeways when she is in fact in The Elms? And when she says that she wants to ‘go home’: iv) Is she describing a return to a previous life which she enjoyed some time ago, living alone, with independence? v) Is she describing a quest to find another place to live which has more emotional significance? vi) Is she specifically referring to returning to the property Ridgeways?[33]The evidence, taken as a whole, does not provide easy answers to these questions.[34]AF is confident that UF is able to distinguish between the respective ‘homes’, and that she is adamant that UF wishes to leave The Elms, to return to Ridgeways. AF maintains that UF is consistent in this regard.[35]By contrast, PK told me that UF “does not know where she is most of the time”; PK gave an example of taking UF to sit in her garden at Ridgeways relatively recently. UF had asked PK: “is it my house?” In his written statement to the court, PK made this observation: “Mum does not know if she is at home, and in fact calls [The Elms] her home, and when she visits our house for lunch or afternoon tea says that our house is her house; she has no concept of place or time”.[36]This view is shared by PK’s sister who stated that UF is very settled at The Elms “and thinks it is her own home”; this comment in itself highlights the ambiguity of language, leaving me unclear (as elsewhere in the evidence) as to whether UF now regards The Elms as her ‘home’ or whether UF thinks she is at ‘Ridgeway’.[37]Much store was placed by the Official Solicitor and AF on the interview conducted of AF by Jonathan Watkins (see further discussion of ‘wishes’ elicited in this conversation at §46-47 below). I have read the short narrative of that interview with care. UF was initially apparently vague as to where she physically was at the time: she asked Mr. Watkins “where are we now”? Later in the interview, UF told him that she wished to live “in my own home” and named the street on which it is situated. When asked to describe the house at Ridgeways she could not remember it, but thought that it had three or four bedrooms (it has three). Interestingly, in the same conversation, UF told Mr. Watkins that she had not been to AF’s house, and that she had spent Christmas “at home” with her children. In fact she had spent Christmas at AF’s house with AF; was AF’s house therefore ‘home’ to UF? Was ‘home’ somewhere where she could see or be with one of her children (as PK’s comment might suggest in §35 above)?[38]UF’s Relevant Person’s Representative (RPR) reported that UF made wholly contradictory statements concerning her wishes – that she wants to “go home”, that “her home is where she currently resides in [The Elms], and that she wants to remain where she is in [The Elms]”. The RPR told Mr. Watkins that:
“UF did not realise that [The Elms] was not her home until she was told where she was … UF no longer says she wants to leave, but does say she wants to get home to care for her children.”
The RPR described UF as “very settled” at The Elms, although acknowledged that she could be more settled at home. The RPR described a conversation a year ago:
“When I visited UF at The Elms in July 2013, and asked her where she wanted to be, she said she wanted to be at her home. When asked where home was she said “here at [Ridgeways]”
. When I explained that UF was not at [Ridgeways], she asked me where she was. I told her that she was at [The Elms]… UF seemed surprised at this … UF said she wanted to “stay here, at home””. In the following month, UF had told the RPR that she wanted to go to live at Ridgeways:
“I have a very nice home waiting for me”
. The RPR added:
“on all other occasions, UF has not expressed a wish to return to her home, and mainly has not been aware that she is not at home until she is told this…”
I mention at this stage, while looking at the RPR’s evidence, that she goes on to recommend that if a sustainable package of care could be put in place which would meet UF’s needs and sufficiently safeguard her at home, then it “may be” in UF’s interests, and the least restrictive option to have at least a trial period at home.[39]UF’s Best Interests Assessor was “clear” that UF “thinks that [The Elms] is her own home…” a view echoed by the Community Mental Health Nurse. The reverse side of the same coin is provided by PN, the adult social worker, who told me that before UF came to The Elms, and was living at Ridgeways that:
“there were times when she did not know that she was in her own home”; PN later added that:- “Like [UF’s GP] and UF’s carers from [The Elms] I am not sure that UF will recognise her home abode consistently – UF is disorientated in place and this is evident in that ‘home’ can often represent different places for her.”
[40]PN, the social worker, went on to tell me (in oral evidence) that:
“There have been times when she has spoken about [Ridgeway]; “home”– sometimes she thinks that she is in her own home, sometimes she thinks of it as Germany. Sometimes she looks at the houses opposite [The Elms] and says that that is her home. She was not clear about where she was…. Sometimes she says that [The Elms] is her home. She knows [Ridgeway]; it carries meaning…”
[41]The summary above reveals evidence that UF views The Elms as her emotional ‘home’ aswell as her physical home (Dr. Pace (Consultant in Community Geriatric Medicine) appears to support this view). PK further told me (when cross-examined by Mr. Downs) that “she feels emotionally at home at [The Elms]”. The care manager at The Elms told Mr. Watkins that UF never thinks that she is in a care home.[42]At a ‘round table’ meeting helpfully convened by the Official Solicitor earlier this month (2 July 2014), the following information was shared between he family and the professionals from the acting manager and senior staff at The Elms: i) “UF questions whether she is in England and asks about whether her mother is alive”; ii) “UF believes that she has left her young children at home and needs to return to them”; iii) “UF does think that [The Elms] is her home”; iv) “Two carers are required to manage UF’s needs around the clock”.[43]It is against this background of considerable uncertainty about how UF views her ‘home’ or ‘homes’ that I must now consider UF’s wishes.[44]UF’s wishes: By section 4(6) of the MCA 2005 I am required to take into account UF’s “past and present wishes and feelings” together with “the beliefs and values that would be likely to influence [her] decision if [she] had capacity” and “the other factors that [she] would be likely to consider if [she] were able to do so”.[45]There is really no doubt, and PK and AF confirmed this for me at court, that UF would not have wanted to live out the final period of her life in a care home, and would have wanted to live and die at Ridgeways. In wanting to remain at home until one’s dying day, UF’s views are likely to coincide, I suspect, with the majority of the population.[46]Jonathan Watkins ascertained UF’s views directly when he met her at The Elms. He reports: “UF told me without hesitation that she does not live here [The Elms]. She said “I live alone at [Ridgeways]. She said that she had lived alone since her husband went off with another woman. I asked UF where she was going to sleep tonight and how long she had been at [The Elms]. She did not know. She said she wants to go home”.[47]Later she added:
“I asked UF how she would manage to look after herself if she went home and whether she would need any special help. She seemed surprised at this question and said she could do all the cooking, cleaning and washing and would cook German food.”
(emphasis added)[48]The quotes in the paragraphs above are, in my judgment, significant; they reveal that UF recalls living at Ridgeway “alone” (in fact for the last 6-7 months prior to her admission to The Elms she did not), and that she would not require help in the future (for many years before she left, she received considerable community based care support). As PK told me “Mum has never wanted anyone living in her home with her … even when any family members came to visit this would distress Mum that someone was upstairs.” All parties are agreed that if UF is to live at Ridgeway she will need the 24-hour care of two support workers, living in full-time initially, possibly reducing to one carer. Mr. Watkins told me that he did not discuss, or even raise, with UF the reality that she would be sharing her home with carers, when he spoke with UF. This leaves open the real question whether, when she talks of a wish to ‘go home’, she has in mind something quite different from that which is planned for her.[49]The range of ‘wishes’ extends from the evidence of AF at one end of the scale who contends that UF said that she wished to “top herself” rather than return there after a day out (this was over a year ago) to the views of UF’s German friend, who had recently seen UF, who told Mr. Watkins that “UF …was happy in the care home and heard that the food was good, and UF praised the staff members.”[50]The manager of the care home reported that about once a month UF displays disturbed behaviour (this does not appear to be linked necessarily to a wish to leave); about two-three times per week UF asks to go home “or states that she is at home and says the other residents should leave her home” (emphasis added). She sometimes says that she “wants to get home to be with her husband and children” (emphasis added). These comments underline the confusion surrounding UF’s wishes.[51]UF’s daily care needs: Dr. Jacqueline Pace (Geriatrician) is broadly supportive of UF’s current care, but advises that if UF is to move, she would require care from a team with specific mental health skills with specialist support from psychiatric services. Dr. Pace comments that UF’s daily needs are for: i) 24 hour attendance with assistance with all basic personal care tasks, including dressing: “she is agitated or anxious at least once a day on most days…”; ii) She will sometimes refuse care from one staff member and need to have her carer changed before basic care needs are met. If a change of carer is not made within minutes she becomes increasingly distressed to the point of crying inconsolably… “at times she can be aggressive”; iii) She usually eats well as long as she is seated in a sociable setting. She has clear views on whom she chooses to sit with and shares a table with the same people at lunch and tea; iv) She likes to sit with others during the day. She chooses to sit in the lounge with people around her; v) She can only sometimes use the toilet independently; vi) She sleeps erratically. She may be up until 3a.m. (the current care manager reports that she may be up at night four nights per week); vii) She sometimes refuses outings even with her family; as such her care needs could not reliably be met in the daytime by attendance at a day centre; viii) She needs assistance to take her medication, which includes pain relief for chronic musco-skeletal pain.[52]Managing UF’s behaviours safely and consistently: Mr. Watkins opines, and I accept and so find, that UF receives good personal care at The Elms. Mr. Watkins opines that UF would in fact be physically safer there (at The Elms) than she would be at home given the institutional safeguards.[53]The Official Solicitor and AF propose that a named independent private agency should be engaged to provide the care for UF in her own home. Mr. A, Manager and Director of that care agency, has prepared a statement to the court summarising what his agency can offer. In commenting on the proposed arrangements, he made this comment:
“UF’s behaviour as reported by [The Elms] is not aggressive and does not manifest in hallucinations. Patients with these two types of symptoms, particularly if severe, can be problematic to care for in the community”
. As indicated above (§17) it is apparent to me, having received evidence from a wider source, that UF can be and has been aggressive, verbally and physically; further, and significantly, it is Mr. Watkins view that going forward:
“UF may be verbally, and very rarely physically, abusive to her carers. She may demand to be let out of her house and she may order her carers out of the house…”
(emphasis added).[54]Two of UF’s daughters (PK’s sister and TT) referred in their discussions with Mr. Watkins to their mother suffering from ‘hallucinations’ about her husbands (aswell as referring to UF’s displays of aggression). PK’s sister also described how her mother would complain about “strange men entering her house” while living at home – not confirmed when investigated. For some time before she left Ridgeways in 2013 she would phone PK and ask him to come and remove her ex-husband (who was not there); she would take time to calm down. She continues to express fears about her ex-husband; PN told me that on a visit last week (July 2014), UF was: “anxious that her husband was coming to see her; she was asking ‘where does he live?’; ‘am I divorced from him?’; She talked about the fact that she would have children with him; she was looking for reassurance that she was divorced from him; she had had a bad night; they thought that she may be having a dream; and was looking in the toilet as she thought she had given birth there”.[55]I am not sure that Mr. A had really understood the nature of the challenges presented by UF.[56]There is a risk that UF will try to wander at night, although her increasing frailty makes this less likely; Mr. Watkins was concerned that UF would try to resist having her personal care needs met, as this was an established pattern when she last lived at home.[57]There is a real risk that UF will not tolerate being cared for by two live-in carers, and will ‘fall out’ with them, or as the care manager put it “wear [them] down”. She is, as mentioned, a ‘feisty’ woman, who had fallen out with her GP; Mr. Watkins advised that “it is likely, perhaps very likely” that UF would ask her carers to leave. PK told me that he feared that “whoever goes into my mother’s house, she will treat them the same” as she treated TT:
“she threatened to stab my sister (i.e. TT) and set the house on fire”
. PN commented that at times of heightened anxiety, agitation and confusion, UF can be verbally aggressive and/or tearful and can require intensive 1:1 attention and reassurance; this occurs most late afternoons/early evenings (at these times “she may say ‘get out of my house’, ‘why are you moving my [swear word] furniture’, ‘I’m going to call the police’, ‘get out and don’t come back’”. PN is understandably concerned that this could be quite challenging and intensive for one carer to deal with over a sustained period, and a second carer will need to be available to take over. There have also been occasions when UF has “become suspicious of a carer or has not liked their support”; PN expresses a concern that:
“lone working in these situations places the carer at risk of allegations being made in relation to their conduct, support from a second or different carer is then needed… UF will sometimes refuse care from one staff member at [The Elms] and then needs support from a different carer in order for her basic needs to be met. If a change of carer is not made within minutes she can become increasingly distressed and tearful…”
She goes on:
“the availability of a mixed staff team at [The Elms] who are able to respond immediately to supporting her pr providing 2:1 care has been an essential component in successfully meeting UF’s needs. ”
[58]Physical comfort: The property is said (per Mr. Watkins) to be in a reasonable state of repair; AF has financed and arranged some of the necessary works in order to put it into a reasonable state. PK nonetheless told me that “everything is threadbare. The settees are totally shot…”; Mr. Watkins described the conservatory as dilapidated – I note that it is said to be unsafe, and needing to be demolished. Overall, I do not regard the state of the property as a reason not to contemplate UF’s return.[59]Medical care: There is a dispute between AF on the one hand, and her siblings and professionals on the other, as to the quality of the medical care which UF has received while at The Elms. UF has had chronic back pain, for which she has required intensive treatment over the years, Mr. Watkins was asked to comment on the considerable reduction in the number of medical appointments which UF has had since being in The Elms; she has not required a hospital visit for over a year. He observed that it was “remarkable” that she had been so well physically since being in The Elms.[60]Socialisation: In The Elms, there is considerable opportunity for socialisation among the residents, which UF appears to enjoy. The care home manager told Mr. Watkins that UF values the company of others, likes people around her, never chooses to sit in her own room, takes part in singing and dancing activities, and has a “wicked sense of humour”. Mr. Watkins told me (oral evidence) that:- “In the care home, she has socialisation including group activities, with people who she sometimes chooses to share activities with, and a wider range of people at hand. At home; she would have a more personalised and individually tailored social and pattern of events…” Mr. Watkins commented that if living at home, UF would be able to socialise by making visits to the shops, escorted by her children or carers. Having heard the evidence as a whole, I am satisfied she would be unable to achieve trips to the shops now, given her state of physical frailty.[61]Mr. Watkins opined that it would be a “serious matter if UF were socially isolated and lonely” if living at Ridgeways. There is a real risk, in my judgment, that she would become so.[62]Cultural heritage It appears that during her life in England UF has maintained a strong identity with her German heritage (see §8 above). AF contends that while at The Elms this aspect of UF’s life has been neglected, and that if she were living at Ridgeways, this aspect could be better nurtured. On my review of the evidence, it appears to me that opportunities have been offered for UF to connect with her German heritage, but that she has not always shown an interest in this. AF brings German food for UF; the care home manager told Mr Watkins that “UF does not always eat it.” She is reported to have taught some German phrases to the staff at The Elms.[63]That all said, I agree with Mr. Watkins’ view that more could be done wherever UF lives to promote her German culture, with German food, and a CD player with German CDs, possibly even accessing German television in The Elms.[64]Financial implications: UF has executed a Lasting Power of Attorney in favour of two partners in a firm of local solicitors; a legal executive in the firm has the day-to-day management of her financial affairs; it remains the view of that executive and of others that she does not have the capacity herself to deal with those affairs.[65]Under the current arrangements, UF pays £2,200 per month for her place at The Elms, with X County Council paying the majority on a deferred payment scheme. The cost of the care package in the event of her returning to Ridgeways would be in the region of £7,500-£8,400 per month[66]If the placement at Ridgeways came to an end after the period of one month, or the money began to run out, there is no clarity about how an alternative care home would be identified, and indeed whether The Elms could be considered. There is such a low level of co-operation between the family members that as things stand there is no prospect of negotiation and compromise. Engagement of professionals to assist them to resolve any dispute will be financially costly and time-consuming.[67]Disruption: In considering UF’s future placement arrangements, I have to take into account the inevitable disruption to UF in moving her from The Elms to Ridgeway, and the likelihood that she will find it difficult to adjust. There is the further real possibility that the move will not work out within the first month, necessitating her return to The Elms. If the placement fails after one month, she will probably have to move to another home altogether. When the funding of care in her own home expires, there is the real possibility of a move.[68]PK considered that Jonathan Watkins had paid insufficient regard to the element of disruption if UF is moved from The Elms; he told me in oral evidence that “he does nottake into account the distress of going home. This will stress my mother out”. I agree that UF would find it difficult to tolerate repeated moves in the event that a placement at home does not work.[69]Although AF has proposed that UF may be able to remain at Ridgeways after the equity released from the property has been exhausted, there is no clear confirmation of this, and the LPA finance may well need to put the property on the market for sale in that situation.[70]Sustainability: UF’s care is self-financing. It is predicted that care at home could be afforded for only approximately 14 months. It is agreed (Mr. Watkins certainly opines) that it is more likely that UF would have a more sustainable placement at The Elms.[71]Measuring the success of placement: It remains unclear by what criteria the success or failure of any placement of UF back at Ridgeways would be measured. It may be obvious; the carers may simply leave. It may be less obvious, with professionals and family members trying to interpret changes in UF’s behaviours. It is proposed by all parties that Jonathan Watkins should contribute to any evaluation of UF’s presentation, but it is rightly acknowledged that if any party wishes to maintain that the placement is not successful the best interests decision should be reserved to the court.[72]Similar uncertainty surrounds the mechanism and criteria by which any reduction in staff numbers in the home (from 2 to 1) could be decided.

Recommendations of the Independent Social Worker, Jonathan Watkins

[73]Mr. Watkins has prepared two thorough reports, carefully recording the discussions with the wide range of family members and professionals who have experience of UF. Overall, I felt that he prepared a balanced review of the relevant factors; that I do not agree with his ultimate conclusion does not reflect any criticism of his industry or thoroughness.[74]He has provided a useful table setting out the pros and cons of the options to which I have had regard, and from which I have quoted (where relevant above). He considered that UF would remember her home “and that she feels a strong attachment to her home”. In light of my review of the evidence as a whole I do not wholly agree with Mr. Watkins’ assessment in this regard. UF has displayed conflicting information about her awareness of her home and is meaning for her.[75]The balances in relation to UF’s capability, and orientation seem to be equally struck whether she is at Ridgeways or The Elms (he opined that UF would feel both orientation and disorientation if moved to reside at home; he felt that “any beneficial effects of greater orientation at home might be negated if UF were more isolated at home and were exposed to unregulated contact with her children”). There is a risk, identified by Mr. Watkins that if UF’s contact with her family is not regulated at Ridgeways as it is at The Elms, a return home “would not work”. I am concerned that the family, who all feel deeply about the issues here, may not co-operate and would fall out; the provider of care when UF was last at home described dealing with the family as “horrendous”; I do not believe that she was exaggerating.[76]Mr. Watkins opined that it was “not very clear” that UF would be happier at home, “and it does not follow that returning home to an environment of long-standing familiarity would equate to more happiness … it is also possible that UF would be more volatile at home and this may adversely affect her happiness”.[77]Mr. Watkins concluded that UF would be happier at Ridgeways because “of the principle of being at home”. I do not find it easy to accept that UF would respond, or necessarily respond, in such a predictable and logical way; he is right to qualify his view by suggesting that “there will be limits to this emotional satisfaction” by virtue of the different memories (positive and negative) evoked by being at home and in any event, in my judgment, by the fact that she is not well orientated in any event.[78]Unlike Mr. Watkins I find that UF would be more likely to benefit from the more immediate opportunities for social interaction at The Elms than at Ridgeway (he finds this point fairly equally balanced); I consider that with increasing physical frailty, and very variable levels of willingness her opportunities to venture outside Ridgeways are likely to be negligible. At The Elms, her social life is readily on hand.[79]Mr. Watkins accepted that there was “a generally higher level of risk associated with going home”. He identified, as key to the decision, four factors, of which UF’s currently expressed wishes and feelings were first listed, and attracted the most significance; he summarised the views which UF had expressed to him and concluded that “This points strongly to a higher level of risk taking”. In reviewing this evidence, he described UF’s views as being that “she continues to say she wants to go home”; for the reasons set out above, I do not believe that the picture has been nearly so consistent or so clear.[80]Mr. Watkins, in his addendum report supports his recommendation by relying on “the high value UF places on ‘home’…”; he does not qualify this comment by adverting to the multiple illustrations (above – see §31 to §43) when UF’s concept of ‘home’ seems to have encompassed a wide range of physical and emotional settings.[81]His recommendation appears to be made “on balance”; he accepted in oral evidence that this was finely poised.

Less restrictive option

[82]In reviewing the options, I have had regard to whether the delivery of care to UF (i.e. “the act” or “purpose”) can be as effectively achieved in a way that is “less restrictive” of the person’s rights and freedom of action (per section 1(6)) than another. In this instance, the issue arises as to whether delivery of care at Ridgeways is likely to be ‘less restrictive’ than delivery of care at The Elms.[83]While the difference between living at home and living in a care home is one which vividly engages the ‘best interests’ arguments, I am not sure that it engages the provisions of section 1(6) to the same degree, if at all; while it may well be (and is likely to be in many cases) that care at home is less restrictive, it is necessary, in my judgment, to analyse the specific care regime in place in each setting to decide which is the less restrictive on the facts of the case.[84]On the instant facts, there are many features of the care package which would be consistently applied whether UF were living at Ridgeways or at The Elms (i.e. it is proposed that she will not be allowed out of either establishment on her own). It is proposed that if UF is living at Ridgeways: i) she will have 2:1 staff:UF ratio, which is arguably higher (certainly on a constant basis) than at The Elms; and ii) any contact with the family would be supervised. In these respects, the regime imposed at Ridgeways would be more restrictive than the one imposed at The Elms.[85]Even if I were to conclude that the simple fact of living at home is less restrictive than living in a care home, such a consideration would have to yield to a wider ‘best interests’ principles discussed more fully above: see London Borough of Havering v LD & KD [2010] EWHC 3876 (COP) at [9]:
“The "best interests" principle takes priority - that is to say, the option which is in the person's best interests must be chosen - which may not necessarily be the least restrictive alternative”
.

Best interests decision

[86]Having reviewed all of the material with care, I have reached the conclusion that it is in UF’s best interests that she remain resident at the care home, which I have referred to throughout this judgment as The Elms.[87]I do not wish it to be thought that I underestimate the value to those with or without capacity living out their lives in their own homes. I recognise the emotional, social and psychological benefits of being surrounded by all that is familiar and comforting. I accept the unanimous evidence of the family that UF would not have wanted to be in a care home for this chapter of her life.[88]The case for UF to return, after 17 months in a care home, to her home is mounted very substantially on UF’s expressed wishes to ‘go home’. For the reasons which I have rehearsed extensively above, I am far from satisfied that she has a sufficient or consistent understanding of what is meant by ‘going home’, what this would mean in real terms, or that she necessarily means what we believe she is saying. Insofar as she appears to follow through her bald statement of desire to be at Ridgeways, ancillary comments suggest that she may believe that this would involve living at Ridgeways alone, and without support; it may involve her going to live with her children there or any of them, or indeed even with a husband. And all that assumes that she means ‘Ridgeways’ when she refers to going home: some evidence suggests that she means a home in Germany, or AF’s home, or PK’s home. As my rehearsal of the evidence (above) demonstrates, UF’s view has been neither consistent, nor clear; she seems to be very confused about where she is, or what Ridgeways really means to her.[89]I do not believe that Mr. Watkins’ discussion with UF yielded any more reliable a view of UF’s true wishes than any other conversation referred to in his report, or this judgment. His discussion may in fact have been distorted by the fact that immediately prior to his discussion, AF had been visiting UF. It is reported by the care home staff, that discussion of home (Ridgeways) is often triggered by a visit from one of the family, or when UF is taken out on an outing and recognised familiar places in the town.[90]It would therefore be quite wrong for me to take UF’s comment to Mr. Watkins in isolation and/or as a reliable or solid indicator of her wishes; I therefore do not accept his conclusion that her view as stated to him (i.e. that she wished to return to Ridgeways) “points strongly to a higher level of positive risk taking”. In any event, Ridgeways is likely to have positive and negative memories for UF; as Dr. Pace commented “Everything was not lovely at home before, so home is not a place of orientation and safety”.[91]Mr. Watkins’ report is predicated on the basis that UF “would be living in the environment of her choice with the result that she would experience greater happiness, autonomy, and may be better orientated”; she may, as he indicates elsewhere, not be so well orientated. In light of my discussion of ‘what is meant by ‘home’?’ I do not accept the basis for Mr. Watkins’s opinion that Ridgeways is her “environment of choice”.[92]Mr. Watkins’ opinion is qualified by the essential requirement for a ‘robust care package’, but there is real cause for concern that the author of the care plan (Mr. A) has underestimated the challenges posed by UF, specifically her capacity for aggression and hallucination. The assessment by Mr. A of the care package was predicated on the basis that UF currently shows no aggression or signs of hallucination; reports from The Elms, and from the family make clear that she does show aggression (see §54 above), and there is evidence of hallucination; the care package is, in the circumstances, more “problematic” (§53 above) than Mr. A had contemplated. It seems to me that the success of a care regime which depends on two carers, is vulnerable to breakdown when UF may not tolerate their interventions.[93]I am satisfied that UF has settled increasingly at The Elms over the months since she arrived. She is physically well cared for. She is safer there than she would be at home, even on Mr. Watkins’ view. It would in my judgment, be enormously disruptive to move her back to Ridgeways, and only – as it now transpires – for a relatively short time measured in months. There would then follow further disruption when she moves to another care home; the management of these events will doubtless be complicated by the internecine arguments.[94]Mr. Watkins is right to describe a plan to move UF to Ridgeways as ‘risk-taking’; I agree that it would be. Where he and I differ is that I do not regard this as ‘positive risk-taking’.

Q.(ii) Equity release to pay for her care?

[95]No equity release scheme comes into play in the immediate future if UF remains at The Elms. Indeed, there seems to be no dispute between the parties that if UF is to remain, as in my judgment she should, at The Elms then Ridgeways would have to be sold.

Q.(iii) Should the LPA finance be replaced by Deputy?

[96]Although AF has variously indicated that she is unhappy with the performance of the LPA finance, she was not advocating at this hearing that he should be replaced by a Court Appointed Deputy. However, ominously she seemed to me to stop short of acknowledging, when invited by Mr. Downs to do so, that she would not challenge him.

Q.(iv) Care at home and deprivation of liberty

[97]I received extensive and helpful submissions from counsel on the issue of deprivation of liberty in the home. In the final analysis, I do not believe that the parties were apart as to the conclusion which I should draw – namely that as a matter of fact UF would have been deprived of her liberty had I authorised her placement at home. I would have been likely to agree.[98]This would have then led to consideration of a court authorised order; unless specifically asked to do so (it not being necessary for the purposes of my order), I decline to express a view.[99]The standard authorisation may be extended at The Elms until 30 September 2014 to allow for the normal process of renewing standard authorisation to take place (see Re UF §42-44).

Conclusion

[100]That is my judgment.

Cited in 2 later judgments