How Rachel Burley-Stower, one of our Community Care Law solicitors in Brighton, obtained an NHS fully funded care at home package for Mark so that he could leave an inappropriate nursing home setting.
Mark suffered a stroke in his early thirties. He initially experienced locked in syndrome and during this period his mother was appointed as his Deputy to manage his property and finances.
He had always expressed a wish to be cared for in his own home, not in a care home.
For many years, the Clinical Commissioning Group (CCG) had funded a substantial package of care at Mark’s home through NHS Continuing Healthcare. The arrangements broke down a year ago when two of his main carers went on maternity leave.
The CCG took this change in circumstances as an opportunity to review and cut Mark’s care package. The result was that Marks’s elderly mother was forced to care for her son for up to 60 hours per week to make up the shortfall, including waking nights.
When these extensive care responsibilities proved too much for her, the CCG decided that it was unsafe for Mark to remain at home. They made a Best Interest decision that although he was only 36, he should be cared for in a nursing home for the elderly. Mark was extremely unhappy in the nursing home and desperate to return to his home which had been specially adapted. His mother felt Mark had capacity to make the decision about where he should live and be cared for, but the CCG disagreed.
Mark and his mother instructed Rachel to advise how the CCG’s decision could be challenged. Rachel advised that they should challenge the decision to place Mark in an unsuitable care environment and the decision to cut the weekly care at home funding. Rachel believed that, four years on from his stroke, Mark now appeared to have mental capacity to make his own decisions about his health and welfare and his property and finances.
Rachel arranged an independent mental capacity assessment for Mark so that his mother could apply to the Court of Protection (CoP) to be removed as his Deputy. She sent a Letter Before Claim to the CCG warning that Judicial Review proceedings would be instigated unless the CCG reconsidered their position.
Rachel identified that the CCG had failed to complete a lawful assessment of Mark’s needs and failed to make a lawful offer of a care package that met his needs. In addition, the CCG had failed to offer Mark a Personal Health Budget and failed to put in place suitable interim care arrangements.
Key to Rachel’s argument was that an institutionalised care home for the elderly was an inappropriate setting for a 36-year-old man and that the CCG’s decision to put cost before Mark’s dignity was a breach of his human rights.
The CCG backed down. Mark’s healthcare needs were reassessed and the CCG offered a more substantial care package that met his needs so that he could return home. It is now accepted that Mark has mental capacity to make decisions for himself about where he lives and is cared for. Mark has made Lasting Powers of Attorney for health and welfare and property and finance in case he loses capacity again in the future. He has appointed his mother as his Attorney but on Rachel’s advice has appointed a local Private Client solicitor as his replacement Attorney.
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