Keywords: Meeting needs appropriately, Care Planning, Personal Budget setting, Home care, Residential care, CHC
X, a 32-year old man, had sustained severe injuries in a fall in 2011, was tetraplegic and had acquired brain injury in the form of frontal lobe damage which affected his personality and, to some extent, his thought processes and may have come on top of a possibly pre-existing personality disorder. The circumstances of the fall were such that he was unable to recover any damages. Consequently, he was entirely dependent on the state for his care and support needs. His substantial care needs included carers turning him in bed to prevent bedsores; transferring him between bed, wheelchair and toilet; and caring for all other aspects of his personal care and daily needs.
For the last 5 years he had had a tenancy in adapted accommodation in the community in his home area. His rent had been funded through housing benefit and he had an extensive publicly funded care package involving the presence of at least one carer full time in his home (though it is not possible to ascertain from the judgement to what extent this was funded by the local authority and what contribution, if any, may have been made by health) and frequent visits from other professionals such as district nurses.
His care arrangements broke down over time due to his behaviour (which included abuse of alcohol and hard drugs) and in December 2015 (10 months prior to the judgment) he was admitted to hospital for treatment for severe bed sores which had become septic. Although X very much wanted to return home, all those involved in his care and X himself accepted at this point that it was not possible for him to immediately return home following treatment. Instead the local authority arranged for him to be cared for in a specialist unit in a hospital some distance from his home area at a cost to them of about £3,000 per week.
By June 2016, both X’s treating psychiatrist and an independent psychiatrist agreed that he lacked capacity to decide where to live and this was provisionally accepted by the court on an interim basis pending a full hearing. In July 2016, Holman J made an interim ruling that “It is in the best interests of [the patient] that a trial of care at his home for a period of up to one month is considered and explored.”
- a large number of professionals who had been involved in the care of X in the community or were currently involved in his care had almost unanimously concluded that it was unrealistic to attempt a trial of care in his home (with the exception of his current treating psychiatrist who felt a trial should be undertaken)
- the local authority concluded that X required 2 carers at all times (partly as a result of some of the moving and handling requirements but primarily for staff safety due to his behaviour)
- the local authority identified a care agency who were willing to provide 2:1 care to X in his home and who quoted about £9,000 per week to do so
The local authority made a firm and final decision that they were not prepared to fund X’s care at home at this level of cost as it would not be sustainable in the light of their overall financial situation and social care budget and, therefore, declined to undertake a one-month trial.
X’s suggestion that the local authority could pay him a Direct Payment at the £3,000 per week level of funding of his hospital placement and that he could organise his own care was dismissed as completely unrealistic by Holman J.
As a result, they were currently no realistic options open to X other than to continue to reside in the specialist unit. Since the role of the Court of Protection is to decide on behalf of individuals who lack capacity between the options that would be open to them if they had the capacity to decide (Re MN (Adult)  and NYCC & ACCG v MAG ), Holman J questioned whether there was any useful purpose in proceeding to a full hearing on the issue of X’s capacity. He pointed out:
“Subject only to any possible judicial review of the decision of the local authority, the required safe level of care simply will not be available for him in his home. Of course, if he does have capacity to decide upon his residence, he could, theoretically, discharge himself from the hospital where he is currently being very well cared for and somehow make his way to his home and try to care for himself there. Realistically, his health would very rapidly deteriorate and, frankly, unless re-admitted to hospital, he would die. There is nothing in anything that I have currently heard or read in this case to suggest that he has that sort of “suicidal” ideation, but, rather, he longs to live life to the fullest extent that he can.” [para. 26]
He went on to set out (in light of KK v CC 2012) the steps which X could take in order to achieve a clearer picture of whether any other options exist:
“He can fairly ask through the Official Solicitor what minimum and lesser level of care the local authority would be willing to fund if he does have capacity to decide to return home and does, in fact, choose to return home. I do not know what answer the local authority will give; but one possibility is that they will say that they cannot fund any care on that basis, for the situation would be so unsafe for him that they would not be willing to participate in it.
So I regret to have to say that, from the perspective of today (and subject to any judicial review), the realistic options in this case may be very limited indeed. If that is so, the question of the capacity of the patient to make decisions with regard to his care may be a very abstract one since, frankly, he may have very little room for capacitous choice.” [paras.27 & 28]
The case awaits a further judgement on 21st November as to whether to proceed with a full hearing on X’s capacity.
This judgement does not necessarily mean that the local authority’s decision to refuse to fund a care package at home to the tune of £9,000 per week is lawful. As is clear from the highlighted words above, that question would require a judicial review. Technically speaking, the judgement merely reinforces previous cases which have highlighted that the fact that the Court of Protection has no greater powers to produce options for an incapacitated individual than would be available to a capacitated individual making the same decision on their own behalf.
That said, however, Holman J appears to have given a clear steer to the local authority that, in his view, it might well not be irrational for them to conclude:
(1) that X’s eligible Care Act outcomes cannot be appropriately met in his home with a lower level of care than that costed at £9,000 per week;
(2) that, taking into account the local authority’s resources (Gloucestershire 1997; and R (on the application of MacDonald) v Kensington & Chelsea (2012) – essentially upheld by the ECHR in 2014)) and the availability of an appropriate option to meet X’s needs in the specialist hospital unit at a cost of £3,000 per week, that is the only option they are prepared to offer to meet his eligible needs.
If that view were to be confirmed by a judicial review, it would, for the first time, provide some indication of the sorts of costs that might lawfully be considered by a local authority to be too high a price to sustain an individual in their own home.
The judgement leaves unanswered, however, what to my mind is an important question. If X’s behavioural difficulties are so intense as to require 2 carers at all times, why is there no mention of CHC? One might have expected the possibility of health involvement in funding to have been explored in this case and, without knowing more detail, it is difficult to see why there is no mention of checklisting, completion of a DST or an MDT meeting.
Full transcript at: http://www.bailii.org/ew/cases/EWCOP/2016/44.html