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England and Wales Court of Protection Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Protection Decisions >> Lincolnshire County Council v JK (Capacity) [2016] EWCOP 59 (17 November 2016) URL: http://www.bailii.org/ew/cases/EWCOP/2016/59.html Cite as: [2016] EWCOP 59 |
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IN THE REGIONAL COURT AT NOTTINGHAM
60 Canal Street, Nottingham, NG1 7EJ. |
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B e f o r e :
(sitting as a Nominated Judge of the Court of Protection)
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LINCOLNSHIRE COUNTY COUNCIL | Applicants | |
and | ||
J K | Respondent |
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Newland, Lincoln LN1 1YS) appeared for the Applicants.
MR BEN McCORMACK (instructed by Irwin Mitchell, Leeds LS1 4BZ)
appeared for the Respondent.
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John Larking Verbatim Reporters
(Verbatim Reporters and Tape Transcribers)
Suite 305 Temple Chambers, 3-7 Temple Avenue, London EC4Y 0HP.
Tel: 020 7404 7464 DX: 13 Chancery Lane LDE
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Crown Copyright ©
Thursday, 17th November 2016.
'J continues to require prompts to attend to her personal hygiene. If left to her own devices she would not have a shower without encouragement. She is also reluctant to let the home do her laundry. By way of example she washes her underwear in her room and leaves them to dry on the lampshade which has prompted the home to warn her about fire risks. In August 2016 she was noted to have sore skin under her breasts which may be an indication of her not attending to her personal care. She was prescribed a barrier cream. Mrs K is sleeping well, maintaining her weight and adheres to a gluten free diet. She enjoys lying-in in the morning which has caused her to miss her GP appointment on one occasion as she could not be persuaded to get up.'
'Myself and RS visited Mrs K at AB House on 6th September and again on the 8th. The reason for the two visits was that on the first occasion it was felt she was being given a lot of information and another visit was therefore necessary to ensure her understanding. The purpose of the first visit was to ascertain her views on the state of S Street and to explain the bankruptcy proceedings in relation to T Street with a view to her understanding that T Street was to be repossessed with a Legal Charge. We wrote down the latest debt figure.'
'On the first visit Mrs K was asked about the state of the property and how she would address this. She stated that all it required was a couple of slates on the roof and that it just needs some packing doing. She acknowledged that she was bankrupt but blamed this on her husband not paying for the costs of the windows. She did not acknowledge any personal responsibility for the debts. We discussed that the property was very cluttered and was not suitable to reside in due to risks involved. She appeared to minimise these risks by stating that she has been unwell when she went to AB House but now she was better would be able to get on top of things. At the end of the first visit it was felt that J had not retained the information provided. She was still of the view that both properties would have to be sold. She has not retained any details of the plan for her properties and in my view minimised the extent of the clutter in S Street.'
'We accompanied J on a visit to S Street. We again discussed the position of the property and perceived risks in returning. We wanted to gauge her reaction to the state of the property during the visit. When we entered the property she appeared completely unfazed by the state of it. We looked at the kitchen, which is not currently accessible [and she refers to photographs]. When asked how she would cook or prepare any food she simply said she would manage and would deal with it. She showed no understanding as to how she would do so. She was very keen to go upstairs and collect clothing and we were able to find many items of new clothing still in delivery bags which had not been opened. We entered her bedroom and again her reaction was unexpected given the extreme clutter. She did not acknowledge the state of the room, choosing instead to focus on whether a discarded light bulb on the floor would still work. We collected clothes and came back to AB willingly. The Care Home record show that she remained settled and spent the afternoon with other residents in the lounge. My reaction to the visit was that she did not show any recognition of the obvious risks associated with the state of her home even when she was in that environment.'
'It is my opinion that Mrs K has capacity to make decisions as to her treatment with medications and also from care staff.'
Only in relation to the question of the finances was he equivocal. He simply came to the conclusion that he was unable to form a definite view. But therefore by way of conclusion at G17 after setting out the background he says:
'She remains free from depression and also that her dementia is treated as effectively as possible. I believe she should continue her present medication. She should have an Occupational Therapy assessment to determine her future care needs and I believe she will cooperate with that assessment and also the provision of support in the future. I do not know whether it is possible for her debts to be settled through the sale of one or other of the properties nor do I know to what extent the properties can be restored to a habitable state but it is important in supporting Mrs K for these facts to be known.'
'She was aware of a continuing case in the Court of Protection and she consented to my visit and interview in preparation for the Court. She told me that she hoped the Court would decide that she could go back to living independently and her preference would be to return to live at Stamford Street. When she looked back at the circumstances of her admission to AB House she said she has not been able to return there because of a leak in her roof. "All I needed was a couple of slates in the roof." She did not believe that there were any other major problems in the house. I asked her directly about the issues of cluttering and hoarding and I quoted to her statements from records regarding risks that had been identified. She said "I had brought some boxes in and it was untidy." She denied that it represented a risk. She was not shown the photographs but disagreed strongly with the evidence that the house had been unsafe, insisting it was liveable in, and she disagreed with the written evidence.'
'Mrs K believed that she would be able to manage independently in the community provided her accommodation was cleared and safe. She thought she would be able to manage her own shopping, cooking and being able to remember to take medication. She recalled that she was taking medication "for my nerves and migraine.'" With regard to medication for her nerves she said "I think they gave me something to calm me down." She said that she had been very distressed after her admission. "I blew my top when I came in. The tablet calmed me down." She did not recall she was taking any medication for memory problems but when I discussed these in detail with her she said that she would take those tablets.'
'I found that Mrs K was aware that there were proceedings in the Court of Protection. However, she could not recall the likely date of the next hearing. She understood that the Court had a formal process. She recognised she needed legal advice but she did not know who her legal advisers might be. She was capable of understanding questions put to her and also was able to express her opinion. Although she has impairment in memory that might affect her ability to retain the information during a hearing, she is capable of understanding relevant information.'
'In contrast to my previous assessment the fact that Mrs K so clearly did not appreciate the degree of concern about her circumstances before admission to AB House and her certainty about her ability to manage in the future has led me to believe she does not have capacity to enter into proceedings in the Court of Protection.'
'I found that she would not accept the written evidence. Her belief was that the problem was quite minor and that she could manage independently.'
He says that is out of keeping with the available evidence:
'I found that although she understood the content of the evidence she did not agree it was true and her own views about the risks at home.'
'When considering her place of residence Mrs K agreed with me the list of issues that should be taken into account. These were as follows. Being accessible for her son and providing a place where he might stay with her. A place where care needs could be met. A place where she could prepare meals for herself and accessible to the shops. A place where she could live and clutter could be prevented. A place where she could be supported to take medications and a place that was homely and she could feel that she was living independently, making choices for herself. 33. I found that Mrs K was able to compare the three options that we discussed taking into account the relevant factors. However, she did not recognise that there may be considerable work to make her house habitable.'
'The reason for the lack of capacity is the effect of dementia. It is likely that she simply does not recall her living circumstances in the summer and autumn of 2015. At that time she was experiencing the depressive illness, problems with physical health and had developed symptoms of Alzheimer's dementia. I believe that if she had an opportunity to visit her home with a Social Worker then she could see for herself the size of the problem in the house and she might discuss and come to understand the risks with which she would have been living. Those steps might assist in making the decision about her place of residence.'
That of course was the precipitating prompt for the visit described by Miss P.
'It is my opinion that she lacks capacity to make decisions regarding her care and treatment because she does not appreciate the degree of impairment of her memory and the necessary level of support she would require were she at home but she expressed a willingness to accept visits and advice. Assessment of her care needs will establish what Care Plan should be offered if she were at home living alone. This would help her have a more accurate understanding of the consequences of not accepting care.'
'Mrs K suffers from Alzheimer's dementia and she has recovered from an episode of depression. She has shown that in an institutional setting she can manage her personal needs independently. She does not appreciate the extent of hoarding risks with which she had been living before admission to AB House and because of this she lacks capacity to make decisions about her residence and care. However, if she were given an opportunity to visit her home with a Social Worker who could discuss the risks and their management in the setting of what appears to be quite extreme hoarding then it may be that she would be able to make a capacitous decision. An assessment of her care needs would help her to understand the consequences of a failure to cooperate with care. I do not consider that she has got capacity to manage the Court proceedings or her finances.'