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Case Study: Application to the Court of Protection for a Health and Welfare Best Interest Decision

Clare English, Community Care Law, martin Searle Solicitors, Brighton

Summary

How Clare English, Community Care Law Caseworker, helped our client apply to the Court of Protection and successfully gained permission to move their elderly aunt to a nursing home closer to her family.

The situation

Ethel, 83 years old, suffers from numerous complex health conditions, including dementia. Her family originally lived nearby in North West England, but over the years most had settled in East Anglia.

Two years previously, Ethel was admitted to a nursing home in Liverpool. Her care fees were paid for by NHS Continuing Healthcare funding (NHS CHC). Ethel frequently talked about wanting to live near her only surviving sister, Gladys, in Cambridge. Ethel was a proud and independent woman who had never hesitated to make her wishes known. The long journey to Liverpool combined with Gladys’s advancing age and own poor health meant that she was not able to visit her sister often.

Ethel’s niece, Jane, asked the NHS if Ethel could move to a nursing home in Cambridge to be closer to her sister and extended family. Ethel had lost the mental capacity to make this decision for herself. However, she had not made a Lasting Power of Attorney for health and welfare matters. This meant that a Best Interests decision had to be made to decide where Ethel should reside and be cared for. Although Jane was Attorney for Property & Finance for her aunt, this did not give her any decision-making rights about Ethel’s health and social care.

By the time Jane approached Martin Searle Solicitors for help, four Best Interests meetings had been held to discuss where Ethel should live, but no decision had been made. Ethel repeatedly asked to move to Cambridge and all her extended family supported this move. Objections raised by Ethel’s nursing home and some of Ethel’s friends appeared to be blocking this move.

Jane asked for our help in obtaining permission to move Ethel to a care home in Cambridge so that she could spend the rest of her life near her sister and extended family.

What Martin Searle Solicitors did

Clare provided Jane with advice regarding the Mental Capacity Act and the Best Interests decision-making process which is relevant where individuals, such as Ethel, lack the capacity to make decisions about their health and welfare.

Clare identified important procedural and legal faults in the CCG’s Best Interests process. These showed that Ethel’s express wishes and feelings had not been given proper consideration and that the CCG had been heavily influenced by the nursing home, who had a financial interest in Ethel remaining resident there.

Clare also advised that it was unacceptable that the Best Interest process had not yet been resolved, even though it has been going on for the past eighteen months.

As the Best Interests process had not reached a conclusion, Clare advised that the family could make an application to the Court of Protection for a one-off decision about where Ethel should live.

Clare explained to Jane that the responsible commissioning body – the NHS CCG – should have made the application to the Court themselves months earlier. Clare wrote to the CCG to point out that they had not followed the correct legal process when there was a legitimate Health and Welfare Best Interest dispute about where Ethel should be cared for.

The CCG instructed its solicitors to make an urgent application to the Court. The CCG’s application argued that Ethel should remain in the nursing home. The reasons they gave against the move included how Ethel would cope with the four-hour journey.

Clare helped Jane to prepare her arguments and evidence. This involved taking witness statements from family members regarding Ethel’s long-held wish to move to live near her sister and how the move would benefit her.

Clare helped the family identify suitable care homes in Cambridge and devised a travel care plan to show the Court that the family had carefully considered every eventuality with regards to this move.

The Court hearing was listed quickly and Clare instructed a barrister to represent the family at the Court hearing in Liverpool.

The result

The Court of Protection issued directions making it clear what further evidence they expected the NHS and Ethel’s family to put forward.

Prior to the full hearing, Clare obtained an expert care plan from a Cambridge nursing home to show that they could meet Ethel’s needs, and negotiated with the NHS. Clare was able to obtain agreement from all parties that Ethel should move to Cambridge and the Court of Protection approved the move to Cambridge, without the cost or time of a Court hearing.

Ethel moved to a care home within walking distance from her sister’s home shortly after Christmas. Gladys, Jane and her husband are all able to visit Ethel several times a week. Ethel is much happier now that she is able to see her sister and family regularly and is enjoying life in Cambridge.

If you need expert Community Care Law advice and support, contact us on 01273 609911, or email info@ms-solicitors.co.uk to find out more.

 

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