When nursing homes just aren’t home

My eye was caught this morning by a newly published case. Unusually, this case threw a spotlight onto the needs of vulnerable elderly people rather than the far more frequently discussed needs of vulnerable children.

The plight of the vulnerable elderly are rarely considered by any one of us I suspect, particularly when they are moved out of sight, into a nursing home. But we ignore them, however, at our peril, because the chances are that we too just might end up in a nursing home one day in far-off future. That’s fine if all is dandy and we are happy to be there.

But what happens when going into a nursing home under the care of the local authority is the last thing a vulnerable elderly person wants? They want to be back in their own home, in familiar surroundings, staring out of a familiar window at familiar scenery. And yet they are told that the move is in their own interests and for their own good. Many children being uprooted into care feel much the same way.

Are the elderly treated better or worse than children in care?

Reading the case took me back to an elderly lady who once telephoned and asked me to “pop over” to see her when I was working at my first office in eastLeeds. She was being moved out of her house and didn’t want to go. But her family had made it clear she was going to go – or they wouldn’t see her again. Furthermore the family was about to split the proceeds of her home between them.

There was no question in my mind about this lady’s mental capacity to give me straightforward instructions. And I immediately offered to help her.

But it turned out that all she wanted was as a sounding board. She had no intention of doing anything. The house went up for sale and the lady died before she had to leave her home.

This newly published case was different in that it involved a lady in her early 80s who was immobile and could only get about with a wheelchair or a hoist. She had paralysis down one side and Parkinson’s disease, but also vascular dementia as well. She is currently living in a nursing home, but she hated the food and she hated living there. She desperately wanted to return home to live. The nursing home had made arrangements for her to make regular visits to her home but it wasn’t enough. She wanted to go home.

The question for Mr Justice Baker, sitting in the Court of Protection, was whether she had the mental capacity to make such decision, and whether keeping in the nursing home was in some way an infringement of her liberty under Article 5 of the European Convention of Human Rights.

Thanks to her immobility, the lady needed the help of several carers at least four times a day. Her food was mashed up for her in the nursing home and she was put to bed at 7pm where she had to stay because she couldn’t get out of bed unaided. On the face of it, the Local Authority and the doctor involved were in fact protecting the lady from herself and it had seemed entirely the right solution was to keep her in the nursing home where she would be fully cared for.

She had also made many hundreds of calls for help while living at home, often out of anxiety and distress. The medical evidence was that she lacked capacity and this was supported by other witnesses. The burden of proof was not on the lady to prove she did have capacity, but on the Local Authority to prove she did not, on the balance of probabilities.

Mr Justice Baker had written evidence submitted to him by the Local Authority but he also heard oral evidence from the lady herself and as a result, he was satisfied while she might not understand every “nuance”, broadly she did understand her needs and the risks to her of going home. The Local Authority failed to discharge the burden of proof.

In reaching his conclusions, Mr Justice Baker applied the following legal principles:

“First, a person must be assumed to have capacity unless it is established that she lacks capacity: s. 1(2). The burden of proof therefore lies on the party asserting that P does not have capacity. In this case, therefore, the burden of proof lies on CC to prove that KK lacks capacity. The standard of proof is the balance of probabilities: s. 2(4).

Secondly, the Act provides that a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or disturbance in the functioning of, the mind or brain: s. 2(1). Thus the test for capacity involves two stages. The first stage, sometimes called the “diagnostic test”, is whether the person has such an impairment or disturbance. The second stage, sometimes known as the “functional test”, is whether the impairment or disturbance renders the person unable to make the decision. S. 3(1) provides that, for the purposes of s. 2, a person is unable to make a decision for himself if he is unable (a) to understand the information relevant to the decision; (b) to retain that information; (c) to use or weigh that information as part of the process of making the decision, or (d) to communicate his decision whether by talking, using sign language or any other means. Important guidance as to the assessment of capacity generally, and the interpretation and application of the four components of the functional test in particular, is set out in section 4 of the Mental Capacity Act 2005 Code of Practice.

Third, capacity is both issue-specific and time specific. A person may have capacity in respect of certain matters but not in relation to other matters. Equally, a person may have capacity at one time and not at another. The question is whether at the date on which the court is considering the question whether the person lacks capacity in question, in this case to make decisions as to her residence and care.

Fourthly, a person is not to be treated as unable to make a decision unless all practicable steps to help her to do so have been taken without success: s. 1(3). The Code of Practice stresses that “it is important not to assess someone’s understanding before they have been given relevant information about a decision” (para 4.16). “Relevant information” is said in paragraph 4.19 to include “what the likely consequences of a decision would be (the possible effects of deciding one way or another) – and also the likely consequences of making no decision at all”. Paragraph 4.46 of the Code of Practice adds that “it is important to assess people when they are in the best state to make the decision, if possible”.

Fifth, the important observations of Macur J in LBL v RYJ [2010] EWHC 2664 (Fam) (at paragraph 24), that “it is not necessary for the person to comprehend every detail of the issue … it is not always necessary for a person to comprehend all peripheral detail .…” At paragraph 58 of the judgment, Macur J identified the question as being whether the person under review can “comprehend and weigh the salient details relevant to the decision to be made…it is recognised that different individuals may give different weight to different factors.”

Sixth, a person is not to be treated as unable to make a decision merely because she makes an unwise decision: s. 1(4). Paragraph 4.30 of the Code of Practice states: “It is important to acknowledge the difference between

• unwise decisions … and
• decisions based on a lack of understanding of risks or inability to weigh up the information about a decision.

Information about decisions the person has made based on a lack of understanding of risks or inability to weigh up the information can form part of a capacity assessment – particularly if someone repeatedly makes decisions that put them at risk or result in harm to them or someone else.”

Mr Justice Baker went on to quote Lord Justice Munby who said this:

“The State must be careful to ensure that in rescuing a vulnerable adult from one type of abuse it does not expose her to the risk of treatment at the hands of the State which, however well-intentioned, can itself end up being abusive of her dignity, her happiness and indeed of her human rights. What good is it making someone safer if it merely makes them miserable? None at all!”

He also found living in the nursing home as she had been doing was not a restraint upon her liberty.

I am pleased that an incredibly brave lady has made her stand. She doesn’t want to end her days in a nursing home, and good for her. If it cuts her life short, then so be it. As she said to the Judge “if I fall over and die on the floor, then I die on the floor.”

At least it will be her death on her terms, exactly like my client of so many years ago whom I have never forgotten.

Photo by desireefawn