Life, liberty and the pursuit of happiness

The compelling case of Re M (Best Interests : Deprivation of Liberty) 2013

http://www.bailii.org/ew/cases/EWHC/COP/2013/3456.html

This is a Court of Protection case,  decided by Justice Peter Jackson – who has delivered a number of very cogent judgments in the short time I have been running this blog. I think this one is a model of its kind.

The issue was whether the Court would approve a Deprivation of Liberty for a woman, meaning that she would have to live in a care home, or reject it meaning that she could return to her own home. The care home option would be safe but make her unhappy, being in her own home carried considerable risks but would make her happy.   [Hence the title of the piece]

There was no doubt in this case that the woman in question, M, lacked capacity to make decisions on her own behalf, and that the professional agencies concerned could have done nothing other than make the recommendation they did

my decision implies no criticism whatever of any of the witnesses from the local authority or by the CCG. I understand the position taken and the reasons for it; indeed it would be difficult for them to have taken a different view on the facts of the case. There 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.

Another interesting point for wider application is this :-

I have already noted the visit made by the District Judge to M in the care home about a month before this hearing. A careful written record was made and placed with the papers. The visit has therefore had the dual purpose of informing the court of M’s views and of making M feel connected to the proceedings without putting her into the stressful position of having to come to court in person. I commend this as an approach that may be of value in other cases of this kind.

The fundamental issue in the case was the management of M’s diabetes, the assessment being that she needed 24 hour supervision to manage this so that it would not be life-threatening. The authorities therefore wanted M to live in a care home, where this supervision could take place. M (despite lacking capacity to make a decision) was clearly expressing her huge antipathy to this and her desire to live at home.

The risk from the management of her diabetes was real and vivid

In relation to the management of M’s diabetes, Miss L, a senior specialist nurse, clearly explained the processes involved, the nature of the medication regime, and the range of consequences arising from non-compliance of different kinds. Her evidence establishes that if there is a default in the insulin supply that M receives there will undoubtedly be a deterioration in her physical health. The probability is that this would be picked up, but the length of time that would be available to take action would be limited with the likeliest scenario being a situation that had to be resolved within a certain number of hours or a few days; however the possibility of a more urgent and possibly fatal event cannot be discounted.

Counsel for the Care Commissioning Group (the agency responsible for M’s care) put it very crisply to the Court

at the care home there is almost complete certainty of physical safety at the cost of the happiness of M

You may already be anticipating that we are about to move into very interesting territory in Deprivation of Liberty law   – if someone needs to be detained to preserve their physical safety, but the effect of that is to lose their happiness and quality of life, where does that balance fall?

34. In relation to the views of others, I have taken account of the views of all those referred to above. I am in no doubt that everyone concerned has thought hard about what is in M’s best interests. It is not surprising that witnesses called by the CCG are by vocation highly motivated by their responsibility to keep her safe. I also place substantial weight upon the judgement of A, who knows M and her situation extremely well.

35. Ultimately the court must balance these factors:

• M’s wishes, feelings and values which point towards a return home.
• The best possible control of her diabetes, which points towards her remaining in the care home.
• The risks to her health that exist in the care home, both by way of a possible deterioration in her physical and mental state consequent upon her being made to stay there, and by way of her threats of self-harm.
• The risks to her health that would exist following a return home, as described by Miss L.
• The possibility that cannot be ignored that M will cause herself serious physical harm if she is told that she is not going home.
• The real possibility that her enjoyment of life might to some degree be recovered following a return home even if it does not fully meet her expectations.

36. Having weighed these matters up I have reached the clear conclusion that the case for a continued deprivation of M’s liberty has not been made out. I accept that there are many uncertainties in a return home, indeed more uncertainties both of a good and a bad kind than in maintenance of the status quo. Negatively these include a possible deterioration in her physical and mental state as a result of non-cooperation. The deterioration may be gradual, but might also be sudden, occurring in a matter of a few hours, and may even, though perhaps less likely, be instantly life-threatening. Any decision that M returns home must accept the real possibility that the attempt will fail and the possibility in the worst case that she may die as a result of a sudden deterioration in her condition. Like Dr Leonard, I do not however accept the view that failure is inevitable.

37. The above disadvantages are, in my view, outweighed by the following considerations.

38. In the end, if M remains confined in a home she is entitled to ask “What for?” The only answer that could be provided at the moment is “To keep you alive as long as possible.” In my view that is not a sufficient answer. The right to life and the state’s obligation to protect it is not absolute and the court must surely have regard to the person’s own assessment of her quality of life. In 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 and which she, with some justification, regards as insupportable

The Judge therefore ruling that in this case, M’s best interests would be better served by being at home and being at happy (albeit with an element of risk) rather than being safe but unhappy in the care home.

Obviously, there was some emphasis on trying to make the option at home safer, and the Judge had this message for M

My message to M is this: I hope that you will be happy when you return home. If you accept the support you will be getting from district nurses and carers it may be possible for you to stay there. If you do not accept that support you will probably have to return to a care home