The Court of Protection has ordered that a woman with late onset vascular dementia be transferred to a residential care home after relations between her son and care workers broke down following queries into the woman's vaccination status against Covid-19.
In Hull City Council v A & Ors  EWCOP 60 (12 November 2021) Mr Justice Poole said the mother, A, lacked capacity to conduct the litigation and to make decisions about her residence and care.
She had been living in her own home with one of her sons, B, for some months. However his behaviour had give rise to increasing concern causing the local authority to apply to the court to authorise her removal from her home and her transfer to a residential care home, at least for an interim period.
There had been multiple previous hearings before the Court of Protection in recent months. The court had previously approved, as being in A’s best interests, a care plan that A should remain at home with B as her primary carer and with a package of support from agencies.
The care plan meant that from April 2021, carers visited A's home at least three times a day. Later, she also began attending a day centre.
Mr Justice Poole said however that preliminary consideration of A’s vaccination status appeared to have triggered a significant change in B’s approach to engagement with carers, professionals and the court.
An assessment by a consultant psychiatrist had concluded that A, who is 76, was unable to make decisions by herself about the conduct of litigation, residence or care.
A had consistently expressed the wish to remain living at her home.
B, who had re-appeared in his mother’s life relatively recently, had a history of criminal activity including convictions for cannabis offences and assault. Around three decades ago, he received a ten-year sentence of imprisonment for causing grievous bodily harm with intent.
Following talk of vaccinating A, B immediately cancelled all care and support for her within the home, and he stopped A visiting the day centre.
Social workers who attempted to visit A told the court that B had shouted from an upstairs window, been abusive and ordered them to leave.
In an email to the local authority, B said due to Covid-19 still circulating, he would not allow anyone in the home.
During an attempted visit in late October 2021, a social worker and her team manager reported to the court that A was seen at the doorway. According to the pair, she appeared frightened. However, B shut the door before they could talk to her.
Soon after, Mr Justice Poole heard the local authority's application. Due to the perceived danger to A, the council applied without notice to B.
"Given B's history and conduct, given his stated rejection of the authority and his frank disengagement from the court process, it was my judgment on 29 October 2021 that it was likely that he would take steps to frustrate the order of the court if notice were given to him," the judge said.
He agreed that giving notice to B would increase the risk of harm to A.
"Balancing his Art 6 rights with his, and A's, Art 8 rights, the risk of B acting in a way that would be harmful to A if notice were given, and the risk that he would take action to frustrate the court's orders, I was satisfied the exceptional course of proceeding without notice to B was justified."
The court conducted three remote hearings on 2 November. A closed hearing took place at 10:00 alongside an open hearing 45 mins later, which B was notified of. This was followed by a third closed hearing.
In the open hearing, B joined by video call. When Judge Poole asked what protective measures could be taken "by way of negative testing for Covid-19, mask wearing or otherwise for him to allow visitors into the home to see A for themselves in a proper manner", B became agitated.
“He did not answer the question but referred to ‘things I have seen'. I asked him the question again and he left the hearing,” the judge said.
The court requested A's legal representative call him back. The court heard that B had indicated he was not willing to re-join because he "was not being listened too". He said that when he becomes agitated it is wrongly taken as an indication that he is not coping, the representative reported.
“He wanted a different solicitor to be appointed for his mother and a re-assessment of her by other professionals. He said that he would allow someone independent into the home. He asserted that no-one respects his wishes or his mother's wishes and that is painful for both of them. He said that it is not good for him or his mother when he becomes agitated. He complained of a lack of communication between him and other parties in the case. He then ended the call.”
Based on B’s participation at the hearing, what he told the legal representative, as well as the previous evidence in the case that was before him, Mr Justice Poole concluded that B had become "implacably antagonistic" to the local authority, social workers, the Court, and the legal representatives for A.
He added: "His avowed reason for not allowing visitors into the house appears to be a fig leaf – his real reason is distrust of all those involved in this case, apparently initially triggered by consideration of A being vaccinated, not protection from Covid-19.
"If, as he says, he would allow an independent person to enter the house, that shows that his objection to social workers from the Local Authority entering is not due to the risk of Covid-19 transmission."
The judge said that given the evidence of B’s past drug abuse and his history of violence, together with the communications to the other parties' representatives and abusive response to social workers, it was "very concerning" that B appeared to be struggling to maintain his mental and/or emotional equilibrium.
The judge concluded that it could not be in A's interests to continue to be looked after by her son, given his state of mind and his history, with no means of checking on her safety, health and welfare, or her use of medication. “It is also necessary to seek to ascertain her wishes and feelings which is not possible so long as B controls her contact with others in the way he has done.”
Mr Justice Poole said B had been given every opportunity to work with others and the court. “He stubbornly refuses to do so. The only viable option that remains for checking on A's health and welfare is to remove her from her home for an interim period to be cared for at the Y residential care home."
The residential home had been prepared to receive A for 3 November prior to the hearings.
Mr Justice Poole ordered for A to be moved from her home to the residential home for an interim period. He authorised the use of restraint to ensure that A was safely moved and made injunctive orders against B to seek to ensure a peaceable move.
The judge listed the case before him for a review hearing approximately one week after A’s transfer to the care home.
In an addendum the judge said A had been successfully conveyed to the care home without the need for physical intervention or restraint to be used.