My best interests or your best interests: How does the Court decide?

Court of Protection case summary

11/05/2017

Jane Bennett

Jane Bennett

Associate

This case will be of interest to clients when considering an individual's best interests (which is contrary to the wishes and feelings of P), in circumstances where there is a clear tension between protection and allowing an incapacitated individual to be exposed to their own choices, even where there are risks in doing so.

 

Case

In the matter of Newcastle-Upon-Tyne City Council v TP (Final No.3) [2016] EWCOP B4 (25 November 2016)

Topics

  • Best interests
  • Residence, Welfare & Contact

Practical Impact

  • This case indicates key considerations in assessing an individual's best interests in line with the Mental Capacity Act 2005;
  • This case shows the weighing up of evidence and all relevant circumstances in the consideration of an individual's best interests, choice and risk.

Summary

 

The Court of Protection considered the issue of best interests for an incapacitated adult when that person had made very clear their own wishes in respect of the future (residency and contact) which was contrary to the advice of all the professionals.

The Court had to undertake a complex balancing exercise – whether TP is at greater risk of harm in circumstances where she is separated from FW, or in circumstances where, in accordance with her wishes, she lives with him?  The Court acknowledged that in the present case there was a tension between protection and harm.

Background

This was the third judgment in respect of TP within these proceedings.  The Court had previously made findings of fact and had considered TP's capacity, concluding that TP lacks capacity in respect of decisions as to the conduct of her legal case, and as to residence, care and contact.

The Court in the current proceedings was tasked with the most difficult decision of best interests.  TP was consistent in her view – she wished to return to live with FW with whom she had previously been residing (before having been removed).

The Local Authority submitted that it was not in her best interests to return to live with FW.  The Official Solicitor, in representing TP reluctantly (because of TP's wishes) supported the Local Authority position but indicated that it would not support long term Orders on the issues at hand (namely whether TP should return to live with FW, where she should reside and in the issue of contact with FW).

The Independent Social Worker indicated that it was a finely balanced situation but had concluded that it was not in TP's best interests to return to live with FW at that time.

The Court considered the current case in line with the principles of the Mental Capacity Act 2005 and having tested the evidence, indicated its findings accordingly.
Key Findings

The Court in reaching its findings considered the legal framework as follows in line with the Mental Capacity Act 2005 with regards to an incapacitated adult:

  • Any act done must be made in that person's best interests;
  • The person's age or appearance/condition/or behaviour should not lead others to make unjustified assumptions as to what may be in P's best interests;
  • The Court must consider as far as reasonably ascertainable the person's past and present wishes and feelings;
  • The individual must be encouraged to participate in matters/proceedings as far as possible;
  • Regard must be had to whether the purpose for which any measure is needed can be achieved in a way that is less restrictive of the persons' rights and freedoms.

The Court indicated that an incapacitated persons' wishes and feelings are as important as somebody who has capacity, and lack of capacity does not operate as a switch off for those rights and freedoms.

The Court was being asked to deny TP those wishes which she had made known and maintained since she was removed from FW's home.  The proposed interference in TP's family life was huge.  The question that the Court must determine is whether it is proportionate or justified in all of the circumstances.

The Court had to undertake a complex balancing exercise – whether TP is at greater risk of harm in circumstances where she is separated from FW, or in circumstances where, in accordance with her wishes, she lives with him?  The Court acknowledged that in the present case there was a tension between protection and harm.

In this case, the realistic alternatives which were available to the Court were making orders whereby TP resides in accommodation provided by the Local Authority with no direct contact with FW at all, which is very much against TP's wishes; or alternatively TP returning to live with FW.  The Court heard that in all likelihood this would result in no realistic prospect of TP receiving any support from social workers, community care, attending college and she would be totally dependent on FW with TP being required to act in accordance with FW's direction.  The Court must consider however, if this was so bad if it is what TP wants?  TP does not recognise any of the difficulties or negatives associated with the second alternative.  TP has been welcoming of being relieved of making decisions by FW.

The Court indicated that 'past and present wishes and feelings' are of major relevance but do not outweigh or override everything else.  TP was aware of proceedings and knew the decisions which were open to the Court, but sees no reason why she should not return to live with FW.  Whilst there remains the slight possibility of her returning to FW, TP will not consider any other option.

The Court acknowledged that the finality of an Order may affect TP's views over time and her views may not be entrenched as they are forever.  TP had not had the opportunity to consider her future if living with TP was not an option.

The Court in weighing up the evidence before it noted:

  • TP's relationship with her sisters and indeed anyone other than FW had been virtually non-existent since she went to live in his house. Familiar people such as her sisters, friends, neighbours and her GP of 20 years no longer had contact with her.  Her world had diminished to become FW.
  • Her physical, emotional and educational welfare cannot be met by FW.
  • Whilst FW may take TP for medical assistance in relation to acute conditions, other more subtle oversight has been diminished. Prior to living with FW TP kept regular appointments with her GP and her health needs were monitored.  That oversight ceased because it did not fit with FW's own views.
  • TP did attend college. It was the view of the Local Authority that she enjoyed it.  TP ceased attending college as FW did not want her to go.
  • There was concern that TP would be cut off from the supervision of professionals, from medical oversight, and from her sisters and friendships. TP would also lose the ability to broaden her horizons by attending college and interacting with others.
  • There was concern that TP would function to meet the needs of FW rather than herself.

The Court also noted in weighing up the evidence that:

  • Upon removal from FW's home her mood did deteriorate and she was depressed.
  • More recently however she has started to join in activities, has been out and about and has become more relaxed and confident.
  • FW has done some good things for TP. He has provided a roof, has fed and watered her, and provided, from TP's point of view, a safe setting which has made her happy.
  • TP struggles on her own and needs company all of the time.
  • The court must not apply a paternalistic approach but recognises the argument that people with learning disabilities have the right to have a meaningful and valuable life and to have choices and appropriate independence.

The Court concluded that "TP is meeting FW's needs and her needs are subsumed in his and his need to gain control, as indeed he has demonstrated by cutting her off from any outside influence".  "I am satisfied that if TP returned, as she wishes, to FW her needs would not be met and her best interests would not be served.  Although I give weight to TP's wishes, as I must, her wishes at this stage and in light of the evidence cannot outweigh the harm to which she would be exposed in FW's care".  The Judge emphasized in reaching this decision that he has "considered not just TP's expressed wishes but, as far as I can, with the help of professionals, the reasons behind those wishes".

In the case the Court also noted that when she is separated from FW, the professional view is that TP can have a meaningful life in connection with people like her sisters who care for her and want the best for her.  If she returned to FW, in FW's mind his control would be justified by and endorsed by the Court.

Overall therefore the Court determined that TP's needs would be best met in an independent supported living placement.  The Court noted that TP must be allowed to grieve in relation to her not being able to return to FW's care or have contact with him.  Likewise TP requires therapeutic work to focus on how she can be supported for her future in light of the Court's decision not to countenance her return to live with FW.  The Court indicated that there should be a review of this matter in three and six months' time to see if progress was being made and to review the position with the Court receiving written evidence as to TP's progress or otherwise that TP has made.

This case is likely to be considered again by the Court in the future depending on and based against that progress.

 

Please contact Jane Bennett if you wish to discuss this case or any related topics further. 

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.

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