Re GC  EWHC 3402 (Fam)
(1) The principle governing State intervention under the Mental Capacity Act 2005 is the same as under the Children Act 1989, namely that the State does not interfere in the private family life of an individual unless the continuance of that private family life is clearly inconsistent with the welfare of the person whose best interests the court is required to determine. (2) The closer the person is to having capacity the more weight his views are to be given. (3) Contrary to the professional evidence, it was in GC's best interests to return home as an interim measure: this decision was reached having regard to (a) the concept of least intervention, (b) GC's consistently-expressed wishes and feelings, (c) a finding that a trial at home was necessary and now was the best time, and (d) the importance of the emotional, as opposed to physical, component of best interests to very elderly (or young) people.
Summary from Court of Protection 2009 report
GC, aged 82, had lived with his nephew, KS, for 28 years. KS was thought to have schizophrenia. On 7 April 2008 GC’s pendant alarm went off accidentally. The police arrived at the house, and discovered that the two men were living in exceptionally squalid conditions. Both of them were admitted to Homerton Hospital. The hospital brought proceedings in the Court of Protection as to whether GC should be returned home on discharge from hospital. There was a disagreement between the two jointly instructed independent experts. The forensic psychiatrist considered that a return home was not in GC’s best interests, whereas the social worker, favoured a trial period at home. On the facts, the judge decided that GC ought to be permitted to his home and to continue to share it with KS. Having reviewed sections 1 and 4 of the Act, he said, at paragraphs 14 and 15: “That really provides the statutory framework within which the court approaches this case. It seems to me that when one applies the statutory provisions the impact of them is that the State does not intervene in the private family life of an individual, unless the continuance of that private family life is clearly inconsistent with the welfare of the person, whose best interests the court is required to determine. That is the same principle that governs State intervention under the Children Act 1989, and whilst the Children Act and the Mental Capacity Act deal with quite different problems and must be treated quite separately, in my judgment it is right that the fundamental principle governing the welfare agencies of the State’s interventions in private life should be the same. 15. So one turns to the facts of this case for this case, like every other one, is fact specific. It is an almost irresistible temptation to lawyers, schooled in common law tradition, to seek to bring a case within other decided cases. In my view, at least, it is generally a temptation to be resisted. Each human being is unique and, thus, best interests decisions are unique to that human being. In almost every case, it should be enough to test the facts of the case against the relevant statutory provisions in order to ascertain the unique solution to that particular case.”
Thanks to Sophy Miles (Doughty Street Chambers) for providing the judgment.
Possible Bailii link (not there when checked last night, but might have appeared since)
Court of Protection: 2009 Report - published 10/6/10 - Summary of this case at page 15