KK v STCC [2012] EWHC 2136

KK, an 82-year old woman, with vascular dementia and Parkinson’s disease, and some cognitive impairment, was living in a nursing home (“STCC”). Despite being looked after and treated well at STCC, KK wished to return to the bungalow where she had lived previously.

This judgment covered two issues:

i.        whether KK had the capacity to make decisions about her residence and care, without which the DoLS authorisation keeping her in the care home was not validly issued, and

ii.        whether the circumstances of her residence at STCC amounted to a deprivation of liberty under Article 5 of the ECHR.

The judge found KK had the necessary capacity to make her own decisions about her residence and care. KK gave evidence and was clear, articulate and realistic about her capabilities, demonstrating an understanding of and insight into her care needs and the reality of life and risk, if she returned home.  KK had grasped and retained an understanding of the basics of others’ concerns about her well-being and that is enough to retain the presumption of capacity, under the MCA…but she gave more weight to the value of being in her own home. She accepted she had misused the Careline, but she said “I was nervous”. She added, however, “but I have learnt my lesson.” She was asked what would happen if she fell over. She replied: “If I die on the floor, I die on the floor. I’d rather die in my own bungalow, I really would.” She said that on a couple of occasions she had not fancied going back because of the weather. There is a long path up to the bungalow. She was concerned that it might be slippery and that she might be blown over in her wheelchair.

Under the MCA, a person cannot be treated as unable to make a decision merely because they make an unwise decision. An assessment of incapacity cannot rest solely on the basis that an individual has given different weight to that which professionals might give to different factors.

The local authority had focussed disproportionately on KK’s over-use of the Careline system, and her failure to eat and drink when moved back to STCC, and had not apparently considered ways in which these issues could be addressed.

The professionals were criticised for beginning their assessments of her understanding of risk with a blank canvas, instead of an idea of what she would be provided with if she were to refuse the offer of the care home as the setting for the meeting of her needs.

This was all the judge could do, because he was not sitting in a jurisdiction that could find that the council was acting ultra vires in relation to what it had or had not offered by way of an alternative package. In the Court of Protection all the judge could do was make findings about incapacity, but he used the MCA requirement of steps leading up to an evaluation of capacity, to go as far as it was proper for him to go, in this regard. The judge commented that the person under evaluation must be presented with detailed options (all practicable support) so that their capacity to weigh up their options can be fairly assessed.

“In order to understand the likely consequences of deciding to return home, KK should be given full details of the care package that would or might be available. The choice which KK should be asked to weigh up is not between the nursing home and a return to the bungalow with no or limited support, but rather between staying in the nursing home and a return home with all practicable support. I am not satisfied that KK  was given full details of all practicable support that would or might be available should she return home to her bungalow.”

Even though there was no lawful justification for the DoLS authorisation, because KK did not lack capacity, at the relevant time, the judge found that KK’s circumstances did not amount to a breach of her rights under Article 5. There was no suggestion that KK’s life at STCC was significantly more restrictive than it would have been had she lived at home in her own bungalow. There was no indication of any significant loss of personal autonomy, no evidence of sedation being used, of access being inhibited or of restrictions being placed on her contact with other people; effort was being devoted to enable KK to experience a greater degree of freedom by regularly returning home. Whilst she was living in “an institution” rather than her home, it seemed to be far from the type of institution associated with a deprivation of liberty.

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