Manuela Sykes (MS) was an 89 year old woman, an ex Labour MP, who now suffered from dementia and had been deprived of her liberty in a care home by virtue of an authorisation granted by her local authority under the Mental Capacity Act 2005. On numerous occasions MS had expressed a wish to return to her own home, where she had lived for 60 years.
MS was assisted by her litigation friend and attorney for property and affairs (RS), who supported her objection to residential care. She had stated in her Lasting Power of Attorney for property and affairs that “…I would not like my attorney to sell my property. My wish is to remain in my own property for as long as this is feasible.”
The local authority set out that MS experienced many problems whilst living alone. She would not accept care; she had altercations with her neighbours and others; she self neglected; her living conditions were unhygienic; she had lost a significant amount of weight; she had been found wandering and she had a lack of awareness of her own personal safety. This had all resulted in her being admitted to hospital under s2 of the Mental Health Act 1983, from where she was discharged to a nursing home, rather than back to her own home. The local authority also pointed out that MS had never actually attempted to discharge herself from care.
The local authority submitted that if 24 hour care and supervision at home was a practicable alternative, MS would not be able to finance it for more than a few months. The court heard that potential ways of raising the funding for the care using MS’s assets and savings had been discussed. It had been stated at a Best Interests Meeting that the view of MS’s family was that equity release from a private company would be very expensive and they indicated that they did not think this was a good use of MS’s assets. An email from the Senior Care Manager to those involved also stated that “we have looked at some ways of raising funds such as selling her share in the property back to Housing. But all these things would take time and the Director of Adult Social Care is not inclined to fund the package in the meantime ….’
In addition, the option of forming a rota for arranging informal free care was not available to her as she had no spouse or children. The local authority submitted that they could not afford such a package of care and would not fund such a package, given that residential care was not inappropriate in relation to meeting her needs. The local authority argued that it was for local authorities, and not judges, to decide how to allocate their limited resources.
With MS’s continued opposition to the nursing home the local authority sought the court’s review of their standard authorisation.
District Judge Eldergill concluded that all of the standard authorisation requirements were met. Because of her dementia – with her short-term memory lasting less than a minute – MS was unable to retain and weigh the information relevant to the decision and thus lacked capacity.
DJ Eldergill agreed that MS was being deprived of her liberty and stated:
“In this case, MS is readily given permission (leave) to go out on outings with her friend RS, and the routines at QX Nursing Home are benign. RS can take her out to the cinema or for walks. She goes to St Martin’s in the Field. However, it has not been argued that she is not deprived of her liberty, or that she is simply residing there in the same way as someone subject to guardianship under the Mental Health Act. This is because of the strength of her objections to living at QX Nursing Home, the fact that she is effectively prohibited from even visiting her own home, and it will be sold and she have to live out her life in residential care, unless the standard authorisation is lifted.
In my view, that is correct when one looks at her specific situation, and the situation is not of the subtle Cheshire West kind where it is necessary to think in terms of comparators in order to reach a finding.
Patently she is not free to go home or visit her home, and the state claims legal power to control her liberty and movements indefinitely, and not simply to define a place of residence for her; therefore she has been deprived of that usual liberty which the rest of us enjoy. No aspect of her liberty of movement remains under her own control.”
He also stated:
“(If I am wrong on this then, having regard to Articles 6 and 8 of the Convention, in my view it would still be legally necessary for a court to review the fact that she is prevented from returning to and residing at her own home in a situation where the state intends that her home should be sold and this situation endure for the rest of her life notwithstanding her clear objections. I would still need to decide what I have been asked to decide, that is whether it is in her best interests not to return home and whether to permit such an interference with her Article 8 rights.)”
DJ Eldergill met with MS at the nursing home and undertook a carefully considered analysis of her best interests. In his view it was in her best interests for a one-month trial period at home to be attempted, the local authority having been persuaded to agree to put in place a transitional plan. It was not therefore in her best interests to remain deprived of her liberty.
The acknowledged risks of the care package breaking down identified by the council were outweighed by other reasons.
“If not now, then when? Ms S is 89 years old and her life is drawing to a close. It is her life. Several last months of freedom in one’s own home at the end of one’s life is worth having for many people with serious progressive illnesses, even if it comes at a cost of some distress. If a trial is not attempted now the reality is that she will never again have the opportunity to live in her own home. Her home will be sold and she will live out what remains of her life in an institution. She does not want that, it makes her sufficiently unhappy that sometimes she talks about ending things herself, and it involves depriving her of her liberty.”
The judge added:
“Although there is a significant risk that a home care package will ‘fail’, there is also a significant risk that institutional care will ‘fail’ in this sense (that is, produce an outcome that is less than ideal and does not resolve all significant existing concerns).”
District Judge Eldergill also noted MS’s Lasting Power of Attorney in which she indicated a wish to remain in her own property for as long as ‘feasible’ and in general that she prioritised quality of life over the prolongation of life.
The Press Association had also made an application for permission to name MS in press reports and to publish certain information relating to the proceedings. The Press Association argued that MS’s case was one of considerable public interest and should be reported widely and fully. On this matter, District Judge Eldergill concluded that:
“Having thought about the issue carefully, I have decided on balance — and it is quite finely balanced — that lifting the usual veil of anonymity is appropriate. In my opinion this is a relatively unusual case where the case for being named outweighs that in favour of continuing the usual anonymity. MS’s personality is a critical factor. She has always wished to be heard. She would wish her life to end with a bang not a whimper. What she has done with her life indicates that she has always wanted to be ‘someone’, to have influence. Realistically, this is her last chance to exert a political influence which is recognisable as her influence. Her last contribution to the country’s political scene and the workings and deliberations of the council and social services committee which she sat on.”
This case chimes with the previous KK v STCC case, in which an unwise decision to refuse residential care was one which was upheld as capacitated, or potentially capacitated, if only the council’s staff were open and up-front about what they would offer were the lady to be adamant in her refusal of care in a care home. The judge there used the words ‘all practicable support’ as the notion of what was open to and necessary for a council to say it would provide in those circumstances.
In this case, that is explored in the context of a person who has means to pay. If people stay at home for as long as possible, and pay for it themselves, they can hardly be said to have deprived themselves of their assets in order to avoid paying for care, because it will be care that they have paid for!
The idea that the personality of MS was clearly known to all to be enamoured of influence is the most wonderful reward for a life spent trying to do good. This case makes it impossible for councils to say that the relative cost effectiveness of residential care and care in one’s own home is the ONLY determinant of the legitimate option to offer to a person in this situation. So Ms Sykes has indeed had a great influence on the prospects of preserving personalisation and choice in adults’ social care!