Balancing risk and emotional wellbeing

A Court of Protection case that looked at whether an elderly woman had the capacity to go on holiday with her partner hit the headlines this month. Alex Ruck Keene, Victoria Butler-Cole, Josephine Norris and Neil Allen look at the judge’s decision.

The case of Cardiff Council v Peggy Ross (2011) COP 28/10/11 concerned an 82 year old woman with a diagnosis of dementia, who had decided with her partner of 20 years to go on a cruise ship holiday, something they had both done together on many previous occasions. Mrs Ross had moved to a care home a few months before the planned cruise following medical problems, but spent weekends with her partner Mr Davies at his home.

The local authority formed the view that Mrs Ross lacked capacity to decide to go on the cruise, and that it was not in her best interests. The critical issue from the local authority’s perspective was that Mrs Ross was not able to appreciate the potential risks to her wellbeing of going on the cruise.

The court was required to make a decision at short notice and without oral evidence from expert witnesses on capacity. However, the judge felt that the decision in question was fairly straightforward – “It is a choice of whether to go on holiday or not, in familiar circumstances, with one’s companion of the past two decades” – and that despite the views of the social worker and a psychiatrist who had assessed Mrs Ross that she lacked capacity, there was insufficient evidence to rebut the presumption in favour of capacity.

The judge went on to hold that even if Mrs Ross lacked capacity, it was not contrary to her best interests to go on the holiday. The judge felt that the Council’s approach to the best interests decision was too risk averse and failed to take proper account of the potential benefits to Mrs Ross: it “smacked of saying that her best interests were best served by taking every precaution to avoid any possible danger without carrying out the balancing exercise of considering the benefit to Mrs Ross of what, sadly, may be her last opportunity to enjoy such a holiday with Mr Davies. This led, in my view, to trying to find reasons why Mrs Ross should not go on this holiday rather than finding reasons why she should.”

The judge was satisfied that Mr Davies would be able to care for Mrs Ross, as he did when she stayed with him at weekends, and was strongly influenced by the fact that this was likely to be her last cruise ship holiday.

The Council had put in place a DOLS authorisation to prevent Mrs Ross going on the holiday, and had then made an application to the court very shortly before the cruise was due to start. Although the issue was not fully argued or decided, the judge indicated that this was not the correct procedural route, and that an application should have been made to the court rather than the use of the DOLS regime.

Comment

This case provides another example of a tendency among local authorities to focus on risk prevention at the expense of emotional wellbeing. The opposite approach is often taken by the court, particularly in cases involving elderly people, who, even though they may have impaired capacity, would rather take the riskier option for care, residence or holidaying, rather than losing their remaining autonomy. It may be that judgments of this sort will persuade statutory bodies to take a broader view of best interests and to give proper weight to the wishes and feelings of the individual concerned, and to the need to promote emotional wellbeing as well as physical safety.

Alex Ruck Keene, Victoria Butler-Cole, Josephine Norris and Neil Allen are members of 39 Essex’s Court of Protection team.