Re  M  (Best  Interests:  Deprivation  of  Liberty)  [2013] EWHC 3456 (COP) (Peter Jackson J)

Article 5 ECHR – DOLS authorisations

Summary
 
This successful s21A appeal was brought by M, a 67 year old woman, through her IMCA as litigation friend, who had been resident in a care home since June 2012.  M suffered from diabetes which was poorly controlled and lacked  capacity due to her “inflexible but mistaken belief that she can manage her own diabetes”  which resulted in her being unable to weigh up the serious risks to her health that would be posed by returning home, with an inevitable reduction in the level of supervision. 
 
The two options for M’s care were continued residence in the care home, or  a  return home with a  “standard care package” which involved twice daily visits from district nurses to supervise M’s insulin regime, and regular visits each day from carers. The CCG did not support a return home, relying on the historical evidence that at home, M had refused support, resulting in a serious deterioration in her condition and subsequent hospitalisation on around 7 occasions.  In the view of the CCG, M required 24-hour care to manage the risks to her health, but 24-hour care at home would not be funded, and in any event, it was unlikely M would accept it. The CCG went so far as to submit that the administration of medication for M’s diabetes could be seen as life-sustaining treatment within the meaning of s.4(10) MCA 2005. Since being at the care home, M’s physical condition had improved, but her mental health had worsened. She was being treated for mild depression with antidepressants. She repeatedly and consistently said that she wanted to return home and had said that she would take her own life if that was not allowed to happen. She was still only partially compliant with her insulin regime and refused to eat any food provided by the home. 
 
A psychiatrist commissioned to provide a report to the court under s.49 MCA 2005 took the view that it was in M’s best interests to return home despite the risks to her health, and that all options to achieve this had not been fully explored.   
 
The judge noted that there was no real dispute about the facts: the issue was the weight to be given to the various risks.  A return home carried with it a real risk of death as a result of M’s diabetes and her non-compliance.  Remaining at the care home carried a real risk that M would self-harm because of her strongly held wish to return home. Concluding that it was in M’s best interests for the standard authorisation to be terminated (after a month’s grace for planning purposes), the judge stated that considerable weight had to be attached to M’s wishes, bearing in mind that her incapacity extended only to one area of her life – her diabetes management – and that she was otherwise very aware of her circumstances. The judge also relied on the fact that M had always been a private and independent person, which made the impact on her of group living more difficult than it would be for other people. He summed up the position thus:
 
38. In the end, if M remains confined in a home she is entitled to ask ‘What for?’ The only answer that could be provided at the moment is ‘To keep you alive as long as possible.’ In my view that is not a sufficient answer. The right to life and the state's obligation to protect it is not absolute and the court must surely have regard to the person's own assessment of her quality of life. In M's case there is little to be said for a solution that attempts, without any guarantee of success, to preserve for her a daily life without meaning or happiness and which she, with some justification, regards as insupportable.
 
Comment
 
This decision seems to the editors to be a model of best interests decision-making which reflects the guidance of Baroness Hale in the recent decision in Aintree v James [2013] UKSC 67, significant weight is given to the actual and likely views of P, with the focus on what P’s own view of his or her quality of life is, rather than an assumption that life should be preserved at all costs. In so many DOLS cases, there are real and serious risks to P’s physical wellbeing if the less restrictive option is taken, and the emotional impact on P of being forced to comply with a care regime that she or he strongly objects is given much less weight. It is perhaps  easier for the court to conclude that the physically  riskier option is the right one than it is for a statutory body which will potentially be in the firing line if P becomes seriously ill or dies. As the judge observed:
 
41.... my decision implies no criticism whatever of any of the witnesses from the local authority or by the CCG. I understand the position taken and  the reasons for it; indeed it would be difficult for them to have taken a different view on the facts of the case. There are risks either way and it is perfectly appropriate that responsibility for the outcome should fall on the shoulders of the court and not on the shoulders of the parties.
 
Two procedural points of note:
  1. So far as the editors are aware, this is the first publicly reported welfare case in which an IMCA has acted as litigation friend.
  2. The judge endorsed the approach taken at an earlier stage in the proceedings when the District Judge visited M in her care home. He noted that “A careful written record was made and placed with the papers. The visit has therefore had the dual purpose of informing the court of M's views and of making M feel connected to the proceedings without putting her into the stressful position of having to come to court in person. I commend this as an approach that may be of value in other cases of this kind.” The editors could not agree more, and hope that personal contact between the court and P, whether in court or in another setting, will become increasingly commonplace, particularly in cases where P’s incapacity is borderline or limited in scope, or where P has strong views about what should happen. And a small editorial point: it is common practice in Children Act cases to include in the title of the case a reference to the central issue. Given the alphabet soup  nature of COP proceedings, it is extremely helpful – as here – to give an indication in the title of the case what it concerns.