In this case, the Court of Protection concluded that it was in the best interests of NP, a man with neurological sequelae of herpesviral encephalitis and personality change, to have a trial return home. In reaching its decision, the Court took account of the risks in such a trial, the reality that there would be no option of a return home without a trial, and Article 19 of the UN Convention on the Rights of Persons with Disabilities 2006.
This case will be of interest to commissioners, providers and care co-ordinators because it considers the difficulties in balancing the wishes and feelings of P, P’s family and the risks of a trial return home, as well as the role of the Court in best interest decisions where significant risks are involved.
Care commissioners, providers and coordinators should be mindful that:
- The desire to help vulnerable adults may mean that parties are drawn towards an outcome that is more “protective” at the expense of P’s emotional/psychological and wider wellbeing; this is the “protectionist culture” to which the Court has noted “What good is it making someone safer if it merely makes them miserable?”.
- There will be cases where public bodies have identified risks which by their nature mean that they feel that the Court should ultimately determine the matter. In such cases it is perfectly appropriate that the ultimate decision falls ‘on the shoulders of the court and not on the shoulders of the parties’ (Re M (Deprivation of Liberty)  EWCOP 3456).
- The weight attributed to P’s wishes and feelings must not automatically be discounted because they lack capacity. The weight to attribute to them depends upon the circumstances. The Judge helpfully reminded us of some factors to determine the weight:
- Degree of P’s incapacity (nearer to the borderline, the more weight attributed);
- Strength and consistency of P’s expressed views;
- Possible impact on P of knowledge that his/her wishes/feelings are not being given effect to;
- Extent to which P’s wishes are rational, sensible, responsible and pragmatically capable of sensible implementation;
- Extent to which, if they were implemented, they could be properly accommodated within the Court’s overall assessment of what is in their best interests.
- As well as having regard to P’s current and historic wishes and feelings, where there are two choices, one of which is an institution, the Court will have regard to the right to live independently as set out in the UN Convention on the Rights of Persons with Disabilities 2006 (“CRPD”). Moving home in NP’s case was the least restrictive option.
- When a trial at home is being considered, a relevant factor is whether without a trial home there would in reality be no option of a return home.
- The case is a reminder of the impact of the Coronavirus pandemic on the rights to family life and the practical difficulties in facilitating this. The Court heard that since lockdown, due to shielding and the ward being unable to accommodate visitors, NP had not seen his wife for six months.
For further information about this case, please contact Julia Jones.
You can read the full case summary below.
Cornwall Council v NP  EWCOP 44
- Mental capacity
- Best interests
- P’s wishes and feelings
Before District Judge Ian Taylor
NP, a 69-year-old man, had neurological sequelae of herpesviral encephalitis and personality change. It was agreed that he lacked capacity to make decisions about his care and residence. NP had lived at home with his wife for 35 years before being admitted to a neuro-rehabilitation unit, where he was subject to a deprivation of liberty standard authorisation.
The case was a Section 21A challenge to the standard authorisation in place, but the issue was where it was in NP’s best interests to live on discharge and whether a trial at home was in his best interests. The proposal was for NP’s bed at neuro-rehabilitation unit to remain open for three weeks pending the trial return home.
The Local Authority believed that NP should be discharged to a residential care home, whereas his wife wanted NP to return to the matrimonial home with a package of care. On behalf of NP, the Official Solicitor agreed that a trial home should take place.
At the time of the hearing, due to receiving further evidence, the Local Authority modified their position and indicated that they no longer opposed a trial return home, but had significant reservations about the sustainability and risks involved in NP living and receiving care at home.
The Court determined that a trial period at home would be in his best interests, whilst recognising the risks involved in such a trial. The Court took into account that not having a trial home would effectively rule out the option of a return home. The Court also considered the right to live independently and be included in the community, as set out in Article 19 CRPD, and emphasised the importance of P’s wishes and feelings.
The Court accepted that the there are some decisions which public bodies feel are “too risky” for them to make and the tendency is to maintain a protective culture when caring for vulnerable adults. Due to the risks, such decisions may fall on the shoulders of the Court for determination, rather than on the parties or public bodies.
- The case highlights the importance of P’s wishes and feelings. The judgment referred to the Judgment of Munby J in Re MM (An Adult)  EWHC 2003 (Fam): “What good is it making someone safer if it merely makes them miserable?’
- The Court should pay due regard to the right to live independently and be included in the community, as set out in Article 19 to the UN Convention on the Rights of Persons with Disabilities 2006 (“CRPD”).
- The Court took into account that without a trial the Court will be lacking important information to make final decisions. Not having a trial would effectively mean that no other option would be available.