Hoarding disorder in the Court of Protection

Harriet Hansen examines the approach taken by the Court of Protection to hoarding cases.

Hoarding is a feature we are seeing in more and more Court of Protection cases.

Often misunderstood as simply, keeping a lot of stuff and used colloquially to describe someone who holds onto belongings. Hoarding was recognised as a psychological disorder by the NHS in 2013 and has since been recognised in the same way by the World Health Organisation (2018).

Hoarding disorder can often fall under the radar. However, as awareness of the disorder increases, we are seeing more references to hoarding diagnoses within the Court of Protection. The balancing of P’s autonomy and safeguarding is often a difficult task in these cases. Preserving P’s independence insofar as possible whilst ensuring that they are safe and their wellbeing protected requires a considered and proportionate approach to any restrictions sought to be imposed.

These cases tend to arise within the Court of Protection where the local authority are seeking the court’s approval of intervention due to P’s hoarding behaviours and the risk of the impact of hoarding along with potentially dangerous consequences, e.g. injury to P or others and fire hazards. This brings to the forefront the interplay between hoarding and mental capacity. This may cover multiple capacity domains including whether P has capacity to make decisions about where they live, entering a tenancy, care and support needs.

There is not extensive case law in respect of hoarding and capacity due to the relatively recent formal recognition of the disorder. We do however have the case of AC and GC [2022] EWCOP 39.

Background of AC and GC

This was an application made by the local authority in relation to the return home of AC, a 92 year old with a diagnosis of Alzheimer’s and hoarding disorder. AC had resided at the property with her son, GC, who was her main carer and had a diagnosis of hoarding disorder and other mental health problems including Asperger’s Syndrome, anxiety and OCD.

The local authority expressed concerns that AC’s care and support needs could not be sufficiently met in the home due to the extent of the hoarding causing a serious health and safety risk.

The court made declarations that both AC and GC lacked the capacity to make decisions about their items and belongings and ruled that they should be supported through the implementation of clearing and cleaning services of the property. AC was moved to a care home following this order.

Considerations of relevant information

This case specifically looked at the information that is relevant to making decisions in respect of P’s belongings and items when assessing capacity. Below is the information that the court considered to be relevant to this area of capacity:

1. Volume of belongings and impact on use of rooms: the relative volume of belongings in relation to the degree to which they impair the usual function of the important rooms in the property for you (and other residents in the property) (e.g. whether the bedroom is available for sleeping, the kitchen for the preparation of food etc). Rooms used for storage (box rooms) would not be relevant, although may be relevant to issues of 3 and 4 below.
2. Safe access and use: the extent to which you (and other residents in the property) are able or not to safely access and use the living areas.
3. Creation of hazards: the extent to which the accumulated belongings create actual or potential hazards in terms of the health and safety of those resident in the property. This would include the impact of the accumulated belongings on the functioning, maintenance and safety of utilities (heating, lighting, water, washing facilities for both residents and their clothing). In terms of direct hazards this would include key areas of hygiene (toilets, food storage and preparation), the potential for or actual vermin infestation and risk of fire to the extent that the accumulated possessions would provide fuel for an outbreak of fire, and that escape and rescue routes were inaccessible or hazardous through accumulated clutter.
4. Safety of building: the extent to which accumulated clutter and inaccessibility could compromise the structural integrity and therefore safety of the building.
5. Removal/disposal of hazardous levels of belongings: that safe and effective removal and/or disposal of hazardous levels of accumulated possessions is possible and desirable on the basis of a “normal” evaluation of utility.

In the event that someone is found to lack capacity in respect of the relevant decision, here, in relation to belongings and items, best interest decisions will be made on their behalf. In hoarding cases, as in AC and GC, this will often include the clearing and cleaning of the property. This requires a careful and considered approach due to the distress that can be caused by either removing P from the home or allowing P to watch the process, and the return to the home without their belongings. Any therapeutic intervention during this period also requires careful thought and planning.

What next?

As in AC and GC, it was considered that a trial home, following the clearing/cleaning of the property was a ‘manageable risk’. In many of our cases, where P has been removed from the home to allow for the cleaning/clearing process, they hold a strong desire to return to the home. We look to support P in retaining as much independence as possible, whilst ensuring they are safe and their wellbeing is protected through careful scrutiny of the care plan proposed by the local authority. The care planning in hoarding cases requires holistic thinking and as in all cases, a personalised approach. Professor Salkovski in AC and GC provided evidence in respect of the interactions between GC’s obsessive compulsive disorder and hoarding disorder. There was also consideration given to the appointment of a financial deputy. We have been involved in cases where there has been interplay with other diagnoses alongside the hoarding, for example, alcoholism.

HHJ Clayton acknowledged in AC and GC that their human rights were engaged and she could “not be satisfied that a final placement at the care home would be an appropriate and justifiable interference” with AC’s article 8 rights. A vital consideration is whether whilst risk exists, this can be managed and P’s article 8 rights protected.

Summary

Hoarding disorder causes complex and unique considerations within the Court of Protection. It is essential in these cases for the court to seek to balance independence and autonomy with safeguarding. In some cases, safeguarding can be considered to promote independence, for example, if P wishes to be at home but without a care package would be in a care setting, implementing a proportionate care package may in fact promote independence in avoiding P needing to reside in a care placement. A personalised and considered approach is crucial.

Harriet Hansen is a trainee solicitor at Peter Edwards Law.