UR, Re (Rev 1) [2021] EWCOP 10

‘Where a standard authorisation has been given, the court may determine any question relating to any of the following matters – (a) whether the relevant person meets one or more of the qualifying requirements (b) the period during which the standard authorisation is to be in force(c) the purpose for which the standard authorisation is given (d) the conditions subject to which the standard authorisation is given’

‘If the court determines any question under subsection (2), the court may make an order – (a) varying or terminating the standard authorisation, or (b) directing the supervisory body to vary or terminate the standard authorisation’

‘(1)The relevant person meets the best interests requirement if all of the following conditions are met. (2)The first condition is that the relevant person is, or is to be, a detained resident. (3)The second condition is that it is in the best interests of the relevant person for him to be a detained resident. (4)The third condition is that, in order to prevent harm to the relevant person, it is necessary for him to be a detained resident. (5)The fourth condition is that it is a proportionate response to— (a)the likelihood of the relevant person suffering harm, and (b)the seriousness of that harm, for him to be a detained resident’

‘(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 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. 6 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 sub-section (6). ...’

‘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’

‘The purpose of the best interests test is to consider matters from the patient's point of view. That is not to say that his wishes must prevail, any more than those of a fully capable patient must prevail. We cannot always have what we want. Nor will it always be possible to ascertain what an incapable patient's wishes are. .... But insofar as it is possible to ascertain the patient's wishes and feelings, his beliefs and values or the things which were important to him, it is those which should be taken into account because they are a component in making the choice which is right for him as an individual human being’

‘A great judge once said, ‘all life is an experiment’, adding that ‘every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge’ (see Holmes J in Abrams v United States (1919) 250 US 616 at 630). The fact is that all life involves risk, and the young, the elderly and the vulnerable, are exposed to additional risks and to risks they are less well equipped than others to cope with. But just as wise parents resist the temptation to keep their children metaphorically wrapped up in cotton wool, so too we must avoid the temptation always to put the physical health and safety of the elderly and the vulnerable before everything else. Often it will be appropriate to do so, but not always. Physical health and safety can sometimes be brought at too high a price in happiness and emotional welfare. The emphasis must be on sensible risk appraisal, not striving to avoid all risk, whatever the price, but instead seeking a proper balance and being willing to tolerate manageable or acceptable risks as the price appropriately to be paid in order to achieve some other good – in particular to achieve the vital good of the elderly or vulnerable person’s happiness. What good is it making someone safer if it merely makes them miserable?’

‘GC is a man in the 83rd year of his life and my concern is to ask myself: how will he most comfortably and happily spend the last years that are available to him? ….. Next it seems to me that for the elderly there is often an importance in place which is not generally recognised by others; not only the physical place but also the relational structure that is associated with a place ...’

‘several last months of freedom in one's own home at the end of one's life is worth having for many people with serious progressive illnesses, even if it comes at a cost of some distress’, and that ‘although there is a significant risk that a home care package at home will ‘fail’, there is also a significant risk that institutional care will 'fail' in this sense (that it, produces an outcome that is less than ideal and does not resolve all significant existing concerns)’

‘there will undoubtedly be many cases in this context where Article 8 considerations will be a very important factor. Where (as here) Article 8 is engaged and where (as here) there will be a potential interference with the right to family life which has to be respected then the interference has to be justified: that is fundamental. … Where (as here) the family life is long standing, is existing and is of high quality, due weight needs to be given to that in assessing whether the proposed interference with the family life is justified and proportionate and in reaching the overall conclusion on best interests’

‘Exceptions: leaving home’

‘Schedule 3 – a) gives effect in England and Wales to the Convention on the International Protection of Adults signed at the Hague on 13th January 2020 (Cm. 5881) (insofar as this act does not otherwise do so), and b) makes related provision as to the private international law of England and Wales’