LB Islington v AA  EWCOP 24
"These proceedings began with three applications, all dated 27th July 2017. One application was made on form DLA in respect of an Urgent Authorisation of deprivation of liberty at C Lodge granted on 24th July 2017. The other applications were made on forms COP1 and COP9, and sought orders for the return of AA to C Lodge."
39 Essex Chambers have kindly agreed for the following summary to be reproduced below. The remainder of the newsletter can be read here: 39 Essex Chambers, 'Mental Capacity Report' (Issue 90, November 2018).
Risk tolerance in practice
LB Islington v AA(Senior Judge Hilder)
Best interests – P’s wishes – residence
This judgment of Senior Judge Hilder does not lay down any new principles of law but is an interesting example of the decision on the facts balancing toleration of risks against P’s wishes and feelings.
P (AA) was 46 years old and came to England from Bangladesh at the age of 8. She was of Muslim faith and her first language was Sylheti. Her brothers were BA, BB and BC. AA was married at the age of 23 and had two children. The marriage came into an end and AA returned to live with her mother and brothers, without her husband and children.
AA was diagnosed as suffering from schizophrenia and was detained under the Mental Health Act. She was later admitted to hospital and discharged to a nursing home with the agreement of her family. She made trips back to the family home for contact and, on one occasion, the family failed to return AA to the nursing home for several days until social services intervened.
AA is then said to have disclosed to a psychiatrist and a social worker that her brothers abused her. Her brothers denied that any abuse occurred. A few days later, BA took AA out of the nursing home for a walk and did not return her. When the social worker and police visited the family home, AA said that she wanted to remain there and not to return to the nursing home. Proceedings were then issued by the local authority.
The local authority sought a number of findings of fact which were collected under three separate headings – financial, neglect and physical/verbal abuse. The court found some, but not all, of the allegations to be proven. In particular, the court was considered that AA was at times in a state of health crisis and there were some deficiencies in the care of AA but a basically adequate level of care was provided by her family. There was no evidence at all to substantiate the allegation of continuous severe neglect. In relation to the financial allegations, the court was satisfied that there was some degree of AA’s benefits being used as reasonable contribution to combined household costs but the court was also satisfied that there had been significant inappropriate use of AA’s funds for matters (including mobile phones and online gambling services) which were not for AA’s benefit. AA’s standard of living could have been improved by more appropriate use of her funds during the time that the family were the care providers.
In light of the court’s findings of fact, the court concluded that it was entirely appropriate that responsibility for AA’s finances should no longer lie with family members and the local authority now acted as appointee. In relation to her residence and care, the local authority argued that it was in AA’s best interests to move back to HV, a rehabilitation unit, a support AA to gain the skills and confidence in activities of daily living that would facilitate her being able to live as independently as possible in the community. The family’s position was that AA should remain living in the family home. BA said that the family could now manage better than they had in the past.
AA’s representative considered that AA should remain at home with a further review by the court in 2 months’ time. In particular, giving the continuing clarity of AA’s wish to live at home, and the level of distress which had recently been manifested when that wish was not given effect, AA’s representative contended on the part of AA that “even if it is not perfect, and is not providing all that a rehabilitation placement can” at this point, it was in AA’s best interests to remain living at home.
HHJ Hilder reached the conclusion that it was in AA’s best interests to remain at home, at least in the short term, and placed significant weight on AA’s own wishes and feelings at paragraphs 90 and 92:
I am concerned that the approach of the Local Authority appears to take too little account of AA’s wishes and feelings, particularly in the presently uncertain circumstances of her physical health needs. The aim of rehabilitation is laudable but there is insufficient information available to satisfy me that AA’s engagement in rehabilitation is realistically achievable at the moment. I can find nothing to suggest that compelling AA’s return to HV now, as the LA seeks, would be any less traumatic to her than Dr Hanlon assessed it to be barely a month ago. If she is traumatised in her return to HV, there must be serious doubt that she would be able to benefit from HV’s rehabilitative approach in the short term at least…
I am not satisfied that it would be in the best interests of AA to compel her return to HV against her wishes, even for the laudable aims of rehabilitation support, whilst there is the very real prospect that she will imminently be admitted to hospital, for significant treatment. I am satisfied that it is in the best interests of AA to require further information to be provided about her physical healthcare needs before a final decision is made as to where she should live and receive care. Until that further information is available, in my judgment it is inn AA’s best interests that she remains living at home with the current care package. I consider that a care package of 4 hours a day, 7 days a week, by independent carers, provides sufficient support for the family so as to mitigate the risks suggested by past crises, and sufficient oversight of the situation for the Local Authority to be able to respond very quickly to any deterioration in AA’s wellbeing if necessary. I consider that the family ought to be taken at their word, and given the opportunity to show that they can cooperate with the care package and “do better this time”.
CommentThis case is another example of the increasing importance and weight being afforded to P’s own wishes and feelings even where it leads to an outcome which might be inherently more risky that then alternative.