Last week’s (20 January) BBC1 drama, Call the Midwife, a period drama set in the 1960s, featured the plight of Clarice, an elderly woman who was brought to the attention to local nurses, who appeared to not be coping well at home. After one particular nurse builds up a relationship with her, Clarise starts to accept help at home, albeit whilst continuing to exhibit a slight hoarding problem.

The interesting point (from the perspective of a mental capacity lawyer anyway), came when the relevant authorities decided that Clarice was not coping at home and needed to be in a care home. In the episode, there was a court order made which allowed Clarice to be removed from her house by force and kept in a care home.

What would have happened to Clarice today?

For the authorities to lawfully force Clarice to live in a care home, they would need to put in place a standard authorisation to deprive her of her liberty. For a standard authorisation to be made, several criteria have to be made:

  • Clarice needs to be 18 or over (so far so good);
  • Clarice needs to be suffering from a mental disorder (for elderly people this is often dementia or Alzheimer’s);
  • Clarice needs to lack capacity to decide whether she should live in a care home (see here for an explanation of capacity – Clarice would need a formal capacity assessment);
  • The restrictions would need to deprive Clarice of her liberty;
  • The restrictions (placement in the care home) would need to be in Clarice’s best interest – this would mean assessing all the available options, including staying at home with a package of care;
  • It would need to be more appropriate to deal with the situation under the Mental Capacity Act 2005, not the Mental Health Act 1983;
  • There cannot be any valid advance decision to refuse the proposed treatment or support.

Given these criteria, it would seem that Clarice was unlawfully forced to leave her home; or at least there was not enough investigation done to ensure she satisfied the criteria. Once a standard authorisation was in place, Clarice would have the opportunity to challenge it in the Court of Protection, to try and show that one or more of the above criteria were not met.

NB: the Mental Capacity Act is currently being reviewed and the Deprivation of Liberty Safeguards will soon be replaced by the Liberty Protection Safeguards.

The end?

Had this blog been written on that Sunday evening, it would have ended there. However, then the judgment of BF was published.

BF was a vulnerable, 97-year-old man with multiple physical health problems and a son, KF, living with him, with several problem behaviours which made it very difficult for BF to be provided with care. However, BF chose to live with his son at his home, with limited provision of care.

Unfortunately, the situation deteriorated and, in September last year, BF was found in a very poor state, dehydrated and malnourished, with a UTI. At that stage, he lacked capacity to make decisions about where he lived. He was immediately transferred by ambulance to a respite care home. An urgent telephone application led to the court making an injunction order to restrain BF from:

  • a)Returning home;
  • b)Living with his son, KF; and
  • c)Requiring him to live at the specified care home.

When the case returned to court a week later, BF was much improved and agreed to not return home until work had been done and to serve notice on KF to require him to leave. The injunction was kept in place.

During this time, BF had a formal capacity assessment. This assessment found that BF had capacity.

The matter returned to court. At the time of the hearing, the situation was as follows:

  • KF remained in the house, meaning no work had been done and BF’s bedroom was dirty, cluttered, and had no bed;
  • If BF returned home, he could not be offered care because of the state of the property and KF’s behaviour;
  • BF had been found to have capacity;
  • BF wished to return home to live with his son, understanding that he would not receive much care if he did so.

Both the local authority and BF argued for the injunction to be lifted. Hayden J found that BF had capacity to decide where to live and was not happy in the care home and wanted to return home. Despite this, he did not life the injunction and extended it to a further hearing when he would have a chance to hear the full argument.

The basis of this injunction is the court’s “inherent jurisdiction” which is supposed to be used to protect vulnerable people whose situation has not been covered by relevant legislation.

An urgent appeal was applied for, due to BF wanting to return home for Christmas. This was heard on 21 December 2018. The Court of Appeal refused the appeal, on the basis that:

  • BF was a vulnerable adult “unquestionably in need of protection for a variety of reasons”.
  • Despite the medical evidence that he had capacity, and no diagnosis of a mental disorder, there was “prima facie [on the face of it] evidence that he is of unsound mind by reason of his infirmity and or all the extraneous circumstances identified above”.
  • “in an emergency situation, someone may be deprived of their liberty in the absence of evidence of mental disorder without infringing Article 5 [the right to liberty].”
  • “a move home in these circumstances is something which requires very careful planning and support. This is a crucial component of the protection afforded by the inherent jurisdiction”.

Whilst it is clear that BF’s home situation was not ideal, he was offered the available options (live at home without care, in poor conditions or stay at a care home and work towards improving his home) and had capacity to chose between those two options. It is concerning that, when given the option to make an interim judgment in advance of a full hearing, the court chose to err on the side of “protectiveness” instead of the right to liberty. BF was denied the right to make his own choice purely on the basis that his available options were not good and was making, what many considered to be a bad decision.

A hearing was listed for 16 January 2019 and the injunction order could not last past 31 January 2019, so we will look out for that judgment being published in due course.

Conroys Solicitors LLP can offer legal advice on mental capacity issues and deprivation of liberty.