Re M (Best Interests: Deprivation of Liberty) (2013) EWHC 3456 (COP)

M was a 69-year old woman who (through her Litigation Friend and Independent Mental Capacity Advocate) challenged a Deprivation of Liberty Standard Authorisation.

M suffered from diabetes, which was poorly controlled, and following further health problems, she became unable to manage independently and was placed in a care home. Despite a marked improvement in her diabetic control and general health at the care home, M wanted to return to her own home, and threatened to take her own life if this was not ‘allowed’. The application for M’s return was however opposed by the Clinical  Commissioning Group (‘CCG’), who were responsible for the health care services that M required (whether in care or at home).

The Court began by finding that  the question of capacity was not in dispute. By applying section 2(1) of the Mental Capacity Act, M was found to have an impairment of the functioning of the mind or brain that arose from her medical condition, which adequately crossed the diagnostic threshold. More specifically, it was agreed that M lacked the capacity to decide where she should live due to the ‘inflexible but mistaken belief that she [could] manage her own diabetes and consequently [could not] weigh up the serious risks involved in a reduction in the level of supervision’.

The key area of dispute within this case concerned the best interests of M, which would moreover determine the most appropriate accommodation arrangements for her. In applying section 4 of the Mental Capacity Act, and drawing upon the evidence submitted by Dr Leonard, the Court adjudged that it was NOT in her best interests to be confined in the care home, but would be in M’s best interests for her to return home with the benefit of a domiciliary medical and care package consisting of twice daily visits from district nurses to supervise her insulin regime and daily visits from care staff.

Dr Leonard, after meeting with M on three occasions and liaising with other key professionals, placed strong emphasis upon the strength of M’s feelings (‘consistent’ and ‘unchangeable’), the way in which her negative view of her circumstances in the care home was eloquently expressed, and the seriousness of her threats of self-harm. He observed that not only were M’s prospects for success by no means unattainable at home, but also that her current deprivation of liberty at the care home served to significantly affect her current quality of life adversely. He also drew upon the objectively unsuitable nature of her current accommodation arrangements. For instance, many of M’s fellow inhabitants of the care home were much older than her, and suffering from advanced dementia, M had felt that she lacked the necessary privacy there, and M had admitted to suffering from alienation from her home environment and her possessions. Whilst Dr Leonard finally conceded that the ‘best interests’ balance would only be informed in relation to the weight given to different aspects of M’s best interests, he advised that a return home would be in her best interests, and that all options to achieve this had not been fully explored.

The Court similarly agreed that M’s wishes and feelings were entirely clear and consistent, and also understandable given the ‘restricted and impoverished quality of her life in the home’ as a result of its unsuitability for her (rather than any particular fault of the home). Whilst it offered the best available quality of care for her diabetes management, this was at the cost of her happiness. M’s beliefs and values, both before and after her illness, were also acknowledged, with the Court highlighting that M had always been a ‘private’ person who was particularly difficult to help due to her determination. Together, these personal characteristics underlined the unsuitability of care home accommodation for M.

In order to determine what would be in M’s best interests, the Court balanced her wishes, feelings and values; what would enable the best possible control of her diabetes; the risks to her health that existed in the care home; and the risks to her health that would exist, following a return home. Having weighed these matters up, it was concluded that the case for a continued deprivation of M’s liberty had not been made out by the Best Interests Assessor. Whilst it was considered that a return home could result in a severe deterioration in her condition, this disadvantage was outweighed by the threat of serious self-harm if her wishes were to be ignored, and the very real possibility that her enjoyment of life might to some degree be recovered following a return home. The ‘preservation of life’ aspect was deemed to be an insufficient justificatory reason for depriving M of her liberty at the care home, with the Court emphasising that the state’s obligation to protect was not absolute when considering one’s ‘quality of life’: ‘[i]n M’s case there is little to be said for a solution that attempts, without any guarantee of success, to preserve for her a daily life without meaning or happiness which she, with some justification, regards as insupportable’. By giving significant weight to the actual and likely views of M, having focused on her own views and considering her own view of a ‘quality life’, this decision reflected the guidance of Baroness Hale in Aintree.

This decision also recognised, in cases such as this, that it is potentially easier for the court to conclude that a physically riskier option is the right one than it is for a statutory body. This is because statutory bodies will likely be blamed if a patient subsequently becomes seriously ill or dies. Therefore the decision implied no criticism of any of the witnesses from the local authority or from the CCG. As Mr Justice Peter Jackson observed: ‘[t]here are risks either way and it is perfectly appropriate that responsibility for the outcome should fall on the shoulders of the court and not on the shoulders of the parties.’

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