The Court of Protection indicates concern at the prospect of incurring further legal 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.." 

Case

A local authority v X [2016] EWCOP 44

Topics

  • Court of Protection
  • Adult social care
  • Capacity
  • Legal expenditure of Court of Protection proceedings

Practical Impact

  • The court noted that the local authority does not have infinite resources.
  • The court indicated a reluctance to hold a final hearing determining the issues of capacity and best interests where it would have little effectiveness in light of the limited options available

Summary

The court heard that the local authority had made a decision to not fund a care package at home where it would cost almost three times the cost of a care package in a specialist unit. The court noted that there were no options available which allowed X to be cared for at home (subject to a judicial review of the local authority's decision). In the circumstances, the court urged the parties to consider "the realistic options" of care packages available to X. The court noted the legal expenditure involved to date and indicated that there is a real risk here of throwing yet more money away by holding a full hearing for very little effective purpose.

Background

In 2011, X fell off a roof resulting in profound injuries. X appears to have suffered frontal lobe damage and is now tetraplegic. Due to the level of disability, he was only able to live in his home with a considerable care and support package provided by the local authority (including one to one care). The home care package began to break down for reasons connected to his behaviour. This, in turn, affected his health and wellbeing. He developed severe bed sores which became septic. In December 2015, he was admitted to hospital where he was cared for in a specialist unit. X remains at the specialist unit and wishes to return to home with a care package.

At a previous directions hearing, an order was made requiring the local authority to explore a trial at home. Following a meeting with 19 professionals, it was agreed that X would require two to one care. The local authority’s calculated cost of the home care package was £466,000 per annum, 1.5% of its adult social care budget and almost three times the cost of the care package at the specialist unit. It was unwilling to fund the care package at home.

At this directions hearing, the court noted that the resources of the State and of local authorities are not infinite. It was noted that subject only to possible judicial review of the local authority, the required safe level of care will not be available for X in his home.

The matter had been listed for a four-day hearing to make a final determination on the issues of capacity and best interests with regards to future living arrangements. The court questioned the relevance of a full hearing to determine whether or not X had capacity to decide on his living arrangements in light of the fact that he may have very little room for capacitous choice.
Key Findings

The judge stated he was “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 on the way forward for this particular patient in his circumstances”.

Accordingly, the court found that the question should now be answered by the local authority, “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?” and X given the opportunity to reflect upon the answer to that question.

In light of the answer to the question posed to the local authority, the court would, at a shorter hearing before the final hearing, decide whether there was any real point or purpose in the projected much longer hearing taking place.

 

If you would like to find out any more, then please contact Emma Timmons.

 

Bevan Brittan's Clinical Risk Team have prepared a comprehensive Knowledge Pack which offers guidance to commissioners, providers and care co-ordinators on the use of CCTV. The Pack is aimed at care environments with service users who lack capacity to consent to their care regime.

Please contact Hannah Taylor if you would like to receive the Knowledge Pack or wish to discuss the Use of CCTV in Care Packages any further.