Case Study: Representing a client in Court of Protection Health and Welfare proceedings to uphold the client’s Best Interests
How Cate Searle, Court of Protection solicitor based in our Brighton solicitors’ office, represented a client in Court of Protection Health and Welfare proceedings to overturn a decision that the client could not have contact with her close friend.
The situation
Mary is 78 years old, and her friend Catherine is aged 85; they live near one another in a town in the North East of England. They had been very close friends for over 40 years and saw each other every day. Catherine has a number of health problems, including early-stage dementia.
Mary provided care and support to Catherine, arranging medical appointments and taking her there, also shopping and outings and so on. Catherine’s daughter, Helen, is her Attorney for Health and Welfare. Helen and Mary have never seen eye to eye about what type of care Catherine required, and Helen felt that Mary spent too much time with Catherine and was always interfering.
Catherine had two emergency admissions to hospital; Mary was not allowed to visit her due to Covid restrictions, but they kept in touch by phone. While Catherine was in hospital the second time, Helen had meetings with health and social services. A decision was made that instead of Catherine going back to her home, she would move to a care home on a temporary basis.
Social Services said they needed time to find a care at home package for Catherine. Helen and the professionals also alleged that Mary was a disruptive influence on Catherine.
Helen and the professionals decided that Mary would not be told which care home Catherine was moving to. They removed Catherine’s phone so the two women could not speak. This meant that there would be no contact of any kind between them.
Catherine was moved to the care home under a Deprivation of Liberty Safeguards authorisation because it was felt that she lacked the capacity to make her own decisions about where she lives and is cared for. Mary is of the view that Catherine still has the mental capacity to make such decisions, provided that she has sensitive support to understand the options.
Mary was deeply upset that no one would tell her where Catherine was living or how Catherine was. She received a letter from Helen’s solicitor stating that Helen would take court action against her if she tried to interfere with Catherine’s care home placement, and that Social Services had decided to ban contact.
What Martin Searle Solicitors did
Cate advised Mary that it did not seem to be in Catherine’s best interests to ban her contact with her oldest friend. Mary might have got things wrong in the past by “caring too much”, but that should not result in no contact at all.
Cate believed that both Helen and Social Services had not followed the Mental Capacity Act Best Interest process about the least restrictive option for Catherine. Supervised contact visits could be put in place until potential risk was assessed and things could get back to normal.
Cate was also very concerned that Helen and Social Services were preventing Catherine from being cared for at home.
Cate corresponded with Helen’s solicitor and Social Services and set out why their decisions were not in Catherine’s best interests. She suggested that there should be a Round Table Meeting and that Helen or Social Services should refer Catherine’s case to the Court of Protection (CoP). They refused all of Cate’s suggestions and refused to agree to contact.
Cate sent a pre-action letter advising that she would make an urgent application to the CoP about Catherine’s contact and her residence. The CoP dealt with the application within 48 hours. They issued directions about who needed to do what to progress Catherine’s case.
Cate had argued that Helen could not be her mother’s Litigation Friend because there was a clear conflict of interest arising from her dislike of Mary. The Court agreed and asked the Official Solicitor to represent Catherine.
The parties eventually agreed to have a Round Table Meeting and at that meeting, Helen, Social Services and the care home agreed that Mary could have trial contact visits to Catherine. At the first CoP hearing, the Judge was critical of Helen and Social Services for banning contact, for failing to consider the care at home option for Catherine, and for failing to put the matter before the CoP. The Official Solicitor supported contact.
The result
Mary and Catherine now have contact and the parties are dealing with a timetable of directions to have an independent assessment of Catherine’s mental capacity to make welfare decisions, and to allow the Court to decide if she should be cared for at home.
For expert advice on mental capacity and Best Interests decision making, contact our Court of Protection solicitors on 01273 609911, or email info@ms-solicitors.co.uk.
