No. COP12681067
Neutral Citation Number: [2016] EWCOP 44
IN THE COURT OF PROTECTION

Royal Courts of Justice
Tuesday, 25th October 2016

Before:

MR JUSTICE HOLMAN
(Sitting throughout in public)

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B E T W E E N :

	A local authority	Applicants

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	X	Respondent
	
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Miss P. ETIEBET (instructed by Legal Services) appeared on behalf of the Applicants.

MS. B. DOLAN QC (instructed by the Official Solicitor) appeared on behalf of the Respondent.

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J U D G M E N T
MR JUSTICE HOLMAN: 

1	The background to this case is one of great tragedy.  In 2011 a man, now aged thirty-two, fell off a roof.  The circumstances in which he was on the roof and in which he came to fall from the roof are somewhat obscure and, in any event, are now totally irrelevant.  The only point is that, as I understand it, no third party was involved or implicated, and so this is not a situation in which he was subsequently able to recover any, let alone substantial, damages for his injuries.  

2	His injuries were profound.  He appears to have banged his head and to have suffered frontal lobe damage.  He severely damaged his spine such that he is now tetraplegic.  Barring some unforeseen development in medical science, he is destined to remain tetraplegic for the rest of his life.  

3	He has been provided with specially adapted accommodation in the area of his home and background.  Whilst he was living there, the rent was paid out of his housing benefit.  Currently it is paid by the local authority.   He is completely unable spontaneously to move the lower part of his body.  He is completely dependent upon others to enable him to get in or out of bed, or in or out of his wheelchair, or to the lavatory or, indeed, to perform any other functions of day to day living.  Further, when in bed, whether awake or asleep, he requires frequently to be turned so as to avoid the development of bedsores.  

4	Unfortunately, and however understandably, this catastrophe appears to have affected his personality and some, at least, of his thought processes.  It is not in issue that he has from time to time resorted not only to considerable consumption of alcohol, but also to the use of hard illegal drugs.  It appears also that, amongst his circle of friends, there are or were a number of drug abusers. 

5	Due to his level of disability, he was only able to live in his own home with very considerable care and support provided by his local authority or other public bodies.  He needed a package of care which involved the permanent presence of at least one carer at any given time in his home, and frequent visits from people such as district nurses.  

6	Unfortunately, the care package began to unravel and break down for reasons connected with his personality and behaviour, which had the effect that those caring for him became increasingly reluctant to attend upon him.  This, in turn, had the effect that his health and wellbeing began to deteriorate and, in particular, that he developed severe bed sores which began to become seriously septic.  The upshot was that in December 2015 he had to be admitted to hospital for serious treatment.  

7	It was obvious to all, and indeed accepted by him at that stage, that he could not in the short run return home.  The local authority arranged for him to move to, and be cared in, a specialist unit within a hospital in South East England, but some travelling distance from his home.  He has not in fact returned home at all since December 2015, now about ten months ago.  

8	Very understandably, he has found this situation deeply frustrating.  He longs to return to live in his own home, where many of his possessions still are, and he frets at not being able to do so.  This has led on to the question being raised whether he lacks mental capacity to make a decision with regard to his residence.  

9	There is, indeed, a subsisting report dating from June 2016 by the jointly instructed independent expert, a consultant psychiatrist, Dr Michael Isaacs.  He says in an “executive summary” at the outset of his report that:

“In my opinion, [the patient] lacks the capacity to decide on his residence and on his residence and care.  He has the capacity to manage his affairs…His lack of capacity is predicated on deficits of cognitive (intellectual) function, caused by a range of factors, including possible mild traumatic brain injury, a history of heavy illicit drug use and probable personality disorder (apparent before his accident in 2011; but exacerbated by the accident and its physical consequences)…Where he lacks capacity, [he] displays an inability to weigh alternative courses of action, especially when his mind is made up, and is not to be able to learn from past experience…”  

The fuller report gives a lot more detail in support of that summary of the conclusion.

10	It was the view also of the treating psychiatrist at the hospital where the patient currently resides, who sees him regularly, that he lacks capacity to make a capacitous decision in relation to where he resides.  

11	There was an interim hearing before myself during July 2016 at which consideration was given to what was described as a “trial of care at his home”.  That particular hearing ended on the formal basis, as declared in the order, that “It is in the best interests of [the patient] that a trial of care at his home for a period of up to one month is considered and explored.”  

12	Pausing there, I wish strongly to underline those words “is considered and explored”.  It was not in any sense at all a conclusion of that last hearing itself that there should necessarily be a trial of care at his home.  All that was agreed by the local authority, and concluded at the hearing, was that such a trial should be considered and explored.  

13	Since then there have been a number of developments.  Very significantly, there was a large meeting attended by about nineteen professionals involved in one way or another in the care of the patient during August 2016.  That meeting included staff from the hospital where he currently resides, staff of the local authority, and personnel - including from the ambulance authority and other agencies - who had been earlier involved in his care in the community.  It was in fact the almost unanimous view of all those participating at the meeting who expressed an actual opinion, that a trial of care at home could not realistically be contemplated or undertaken.  However, conspicuously, the current treating psychiatrist felt that such a trial could and should in principle be undertaken.  

14	The next significant development was that the local authority began searching for care agencies who might actually provide the requisite care within the home.  The local authority consider that it would be essential for the safety and wellbeing of the patient, and also for the safety and wellbeing of the carers, that at all times there should be at least two professional carers present within the home, round the clock, twenty-four hours a day.  In part, that is because he requires frequently to be turned, and they consider that two carers are necessary to perform that task.  He certainly needs two carers to assist him when getting out of bed, going to the lavatory, and fulfilling many other daily functions and tasks.  But in parallel, as I understand it, the local authority feel, and/or the possible care agencies feel, that a single carer could not safely be left alone with this patient.  

15	The upshot was, and is, that one care agency has proposed and offered to provide a package of care at a cost of just under £9,000 per week, or around £468,000 per annum.  Currently, the local authority are funding the care of the patient at the hospital where he is living at a cost to them of about £3,000 per week, or £156,000 per annum.  It follows from those figures that there is a vast difference in the cost to the local authority of funding care in the specialist unit within the hospital, and funding a package of care in the patient’s own home.  The latter is about three times more expensive.  

16	It is obvious that the resources of the State and of local authorities are not infinite.  The State and local authorities do have to take very difficult funding decisions regarding the overall allocation of scarce and finite resources.  There is a letter dated 21st October 2016 from the Head of Safeguarding and Learning Disabilities in the local authority in which he records his decision and gives the reasons why the local authority will not agree to fund a care package in the home at the figures I have mentioned.  He says in his letter: 

“The cost of the care package, annualised at a cost of approximately £466,000, constitutes approximately 1.5% of our total annual adult social care budget.  That level of funding is unsustainable in the long term.  I appreciate that the current funding request is for a month’s trial only, but if it is successful and in his best interests to return home, the cost will continue.  It would be unfair to [the patient] to allow the trial in the knowledge that there is a real risk that the care package would not continue to be funded after the trial.”

So there is, as I understand it, a firm and final decision by the local authority that, realistically, within the overall budget available to them, they simply cannot, and will not, provide funding at the levels that I have mentioned.  

17	This, of course, has come as a blow to the patient himself.  There is an attendance note dated yesterday from the very committed solicitor who has been instructed by the Official Solicitor to act as his solicitor in this matter.  The solicitor saw the patient yesterday and explained to him the decision that the local authority have reached.  His own comment was “That’s a bit steep, even I think that’s too much.”  However, he went on to say that the high cost was because there are two carers proposed twenty-four hours a day and he questions whether he needs to have round the clock care by two carers.  He continued: “That aside, I think it’s a bit unfair to leave me in a care home just because of how much it costs.”  

18	The solicitor commented further on in his attendance note that the patient “was not angry with the news that the local authority would not fund care, but he was disappointed…”  He has, I think, suggested that the local authority might consider paying to him the weekly sum that they pay the hospital so that he, with that funding, could organise his own care.  That suggestion is, I am afraid, completely unrealistic.  

19	Today had been listed as a relatively short directions-type hearing to review the progress of any trial of home care if one had, in fact, taken place, and generally to review the progress of this case.  A hearing of four days has already been listed for late November and early December.  The purpose of that hearing was identified in the last order as “…to determine [the patient’s] capacity to decide upon his residence and care, and, if he lacks capacity, his best interests in that respect.”  

20	The reality of the present situation may be that, realistically, there are very few options open.  The local authority have now firmly said that they are unable and unwilling to fund the level of care that they consider would be required in his home so as to ensure his safety there.  They will, however, continue to fund at present levels his care in the unit in the hospital.  The question whether the patient lacks capacity to decide on his residence has, so far, only been determined by the court on an interim basis.  The most recent and still subsisting declaration to that effect was made, I think, by Mr Justice Peter Jackson on 12th January 2016 as follows:

“And it is further declared in the interim that:
Pursuant to s.48 of the Mental Capacity Act 2005, the court has reason to believe that [the patient] lacks capacity to make a decision as to where he should reside.”

21	I readily accept, and wish to make crystal clear, for the purposes of today’s decision and outcome, that there may be a very open and difficult question as to whether or not this patient does lack capacity to make decisions with regard to his residence and care.  That, certainly, was the conclusion of the independently instructed psychiatrist in June, as I have already quoted.  But it is quite clear from other information and material that this patient does have a considerable level of cognition.  He can certainly discuss his situation with apparent rationality, as reported by his solicitor.  So, on his behalf, Ms. Bridget Dolan QC, instructed by the Official Solicitor, submits that there is a continuing necessity for the court to determine on a more informed and less interim basis whether or not the patient does lack capacity to make decisions with regard to his residence and care; and, if he does lack capacity, what his best interests are in that regard.   

22	I am, however, frankly concerned about the potentially abstract nature of such a determination in the context and circumstances of this particular case.  It is necessary to mention and record that already at least £130,000 has been incurred on legal expenditure in the course of these proceedings, all of it funded out of public funds, whether the funds of the local authority, the funds of the Official Solicitor, or the funds of the Legal Aid Agency.  I was told this morning that the local authority have incurred legal costs of about £80,000 and that the Official Solicitor has incurred costs of an uncertain amount, but definitely exceeding £50,000.  So a total of those two figures is £130,000, which is the minimum costs that have been incurred. 

23	I accept that, to date, these proceedings have provided something of a framework for objective consideration of the needs and best interests of this patient, and a framework within which, for instance, the possibility of a home trial was explored.   But I am, frankly, deeply concerned at the prospect of incurring yet further tens of thousands of pounds of expenditure of public funds on some abstract determination of capacity if, realistically, there is no choice in the way forward for this particular patient in his circumstances.  

24	It is said on his behalf that, applying the test of deprivation of liberty as currently explained by the subsisting decision of the Supreme Court in the Cheshire West case, he is being, or may be being, deprived of his liberty.  To ordinary lay people it might seem a little odd to characterise him as being deprived of his liberty when, in fact, he is being provided with a high level of expensive care in a specialist unit after the very serious deterioration in his health that took place in his own home.  

25	The very sad reality of this case and the plight of this person is that, for the rest of his life, he will inevitably be almost totally dependent upon the State for the provision of all his most basic care and needs.  It has to be accepted that that care and those needs can only be provided for within a framework that is realistically financially viable.  

26	Frankly, if the local authority are unwilling or unable to fund a safe package of care within his own home, there is no other person or body who can, or will do so.  Subject only to any possible judicial review of the decision of the local authority, the required safe level of care simply will not be available for him in his home.  Of course, if he does have capacity to decide upon his residence, he could, theoretically, discharge himself from the hospital where he is currently being very well cared for and somehow make his way to his home and try to care for himself there.  Realistically, his health would very rapidly deteriorate and, frankly, unless re-admitted to hospital, he would die.  There is nothing in anything that I have currently heard or read in this case to suggest that he has that sort of “suicidal” ideation, but, rather, he longs to live life to the fullest extent that he can.  

27	The patient needs to be given an opportunity now to reflect upon the realities that face him.  He needs an opportunity to reflect upon this decision of the local authority.  He can fairly ask through the Official Solicitor what minimum and lesser level of care the local authority would be willing to fund if he does have capacity to decide to return home and does, in fact, choose to return home.  I do not know what answer the local authority will give; but one possibility is that they will say that they cannot fund any care on that basis, for the situation would be so unsafe for him that they would not be willing to participate in it.  

28	So I regret to have to say that, from the perspective of today (and subject to any judicial review), the realistic options in this case may be very limited indeed.  If that is so, the question of the capacity of the patient to make decisions with regard to his care may be a very abstract one since, frankly, he may have very little room for capacitous choice.  

29	In all these circumstances, I have expressed today, and continue to have, considerable concern and misgivings at the prospect of a hearing lasting several days in late November, involving evidence from at least two psychiatrists as well probably as other witnesses and, indeed, evidence from the patient himself, when there may be very little practical point or purpose in that hearing.  It seems to me that there is a real risk here of throwing yet more money away in legal expenditure for very little effective purpose.  

30	For those reasons, I have decided to fix a further, relatively short half-day hearing before myself on Monday 21st November 2016.  That will be one week before the listed four day hearing.  I will require that in good time before 21st November the local authority have answered the questions now to be posed to them, and that the patient has had an ample opportunity to reflect upon his situation, and that the two psychiatrists whom I have mentioned, have updated their opinions and reports as to capacity.  I will then decide at that much shorter hearing on 21st November whether it seems that there is any real point or purpose in the projected much longer hearing taking place the following week.