Best interests and moving into residential care

A High Court judge recently concluded that the best interests of an autistic man dictated that he move into residential care. The Court of Protection team at 39 Essex Street analyse the ruling.

In the case of A Local Authority v WMA [2013] EWHC 2580 (COP) a local authority applied for an order that it was in the best interests for WMA, a young man diagnosed with autistic spectrum disorder, to reside at a small residential unit with two other residents, in circumstances where he had lived his whole life with his mother, MA.

MA attended the first day of the hearing in person and accepted that WMA lacked capacity to decide where to live and the Court accepted psychiatric evidence that he lacked the capacity to make this decision. MA was strongly opposed to WMA living away from her.

When WMA met HHJ Cardinal before the hearing, he stated unequivocally that he wished to live with his mother permanently. He said that he did not like having carers visit him at home and did not like mixing with other people. He said that was his choice.

HHJ Cardinal accepted that, given WMA’s high level of functioning for a person with a learning disability, his wishes and feelings should be accorded greater weight than those of some, but found that “he is unable to understand the merits of a move to B compared with his remaining with MA.”

After hearing evidence from an independent social worker and from the local authority, HHJ Cardinal made the following findings (at paragraphs 99-105):

“First, the local authority social workers have been unable and will be unable to provide appropriate care for WMA and monitor it because of his refusal to accept it and because of MA’s inconsistence and erratic interference with the local authority help.

Second, there is a worrying history about MA’s care for WMA that shows no sign of abating.

Third, that the local authority has made special efforts over the last eighteen months to engage fully with both of them but there has been an unacceptable degree of conflict. I am not persuaded the local authority could have done any more and I have noted with concern the helpful evidence of CG [a social worker] that she has felt under threat recently.

Fourthly, WMA lives an isolated lifestyle and is expected often to be in mother’s eyes and ears. His relationship with her, however, is a frustrated one and there is clear evidence on mother’s case alone that he is, at times, beyond control.

Fifthly, the isolation is such that WMA just does not go out with any with any regularity. Dog walking and shopping appear to be virtually the limit of his outdoor activities with the exception of the few outings that were organised by Delos who he now rejects. As long ago as February 2012 he could not recall when he last went out anywhere.

Sixthly, the home of MA and WMA continues to be kept to a very low standard of cleanliness and, whilst it is not for the court to impose respectable middle class standards of care, nonetheless, the home’s condition has on occasion deteriorated. The recent evidence of CG, for example, that the fridge is kept to a low standard of cleanliness is very concerning. True enough, this has not yet made WMA ill but I am sure that it will one day,

Seventhly, there is a plain history of neglect of WMA by his mother. She does not keep him sufficiently safe or clean or his clothes sufficiently clean to an acceptable standard. The clear point is that MA’s standards are not simply lower than the norm, they are below a good enough standard.”

HHJ Cardinal concluded that there was no doubt it was in the best interests of WMA to move to a residential unit. Further, whilst he noted that the law as to what amounts to deprivation of liberty was somewhat in flux pending the decisions of the Supreme Court, and that, for his part, “it is not easy to follow the reasoning of the Cheshire West decision” (para 150) he had “no doubt that by moving to B there would be a deprivation of liberty involved and not simple restraint. WMA will have to live at B. He will be in a flat that will be his. There is no time limit for him being away from MA. Accordingly, I must not simply declare what is in his best interests but make such orders as to enable the keeping at WMA at B practicable. That said, the terms of WMA being there must be the least restrictive of his freedom of action. He is an adult, not a prisoner, albeit an adult in need of careful and kindly but firm support” (para 149).

HHJ Cardinal granted an authorisation for the deprivation of his liberty and went on to recommend that there should be power for the local authority to enter MA’s home if necessary, a power to the police to restrain WMA if necessary and power to the local authority to move WMA to the residential unit and sign a tenancy agreement on his behalf (at paragraph 153). He accepted the Official Solicitor’s proposal that there should be a protocol between the police and the local authority relating to the transfer, although this could not cover all eventualities.

Comment

This case is largely fact-specific but it does highlight the importance of a thorough and rigorous best-interests analysis. The Official Solicitor was critical of the local authority for misunderstanding the decision making process required under the MCA 2005 and emphasised that it is not sufficient to decide, albeit with the best of intentions, what is best for the relevant person. There must be careful justification with reference to s.4 MCA 2005 and a proper balancing of the benefits and disadvantages of the various options.

This article was prepared by the Court of Protection team at 39 Essex Street.