Tina* was resident at a care home, where she had been living for several years. She had a diagnosis of cognitive impairment due to a stroke but also had other healthcare needs.

Tina had been assessed as lacking capacity to make decisions as to her residence and care. Despite previous court proceedings resulting in a decision that Tina should remain at the care home, with our assistance Tina moved out of the care home to a supported living property.

What happened to Tina?

Tina was subject to significant restrictions at the care home. These included Tina being prevented from leaving the care home on her own, being supervised on a 24-hour basis and staff always being aware of her whereabouts.

A care home placement registered with the Care Quality Commission (CQC) is generally a significantly more restrictive setting than supported living placements or someone receiving care in their own home.

Tina’s Relevant Person's Representative (RPR) instructed Irwin Mitchell to challenge the restrictions and best interests requirements under the standard authorisation, in the Court of Protection. This is because Tina had been objecting to her placement at the care home, repeatedly informing her RPR that she wanted to have her own place and to live more independently. Tina said that she felt like “a prisoner” in the care home.

Lawyers had been previously instructed for Tina to challenge the standard authorisation from the same care home on multiple occasions. None of the previous challenges resulted in a move out of the care home.

The main concern for us was that Tina was routinely and consistently asking to leave the care home. This was despite previous court proceedings ruling it was in her best interests to stay there.

Both our team and Tina believed her needs could be met in a less restrictive care setting, allowing her to regain some independence.

How did we help?

Saoirse de Bont, a solicitor in our Court of Protection team, worked with Tina to help her to regain some of her independence. 

We were concerned that an adequate best interests analysis had not taken place in previous proceedings. This was due to alternative options not being presented to the Court.

Saoirse had to consider the wishes of Tina, who wanted to move from the care home; against the overriding objective to make sure Court of Protection proceedings were issued proportionately.

Upon reviewing documents, Saoirse noted Tina had made improvements in her daily living tasks. We instructed experienced counsel to advise on reissuing proceedings. It was noted there had been previous applications made and to make sure there were merits in issuing a further application under s21A Mental Capacity Act 2005 in such a short timeframe.

We received advice on behalf of Tina, with counsel agreeing that there had been a material change of circumstance. This meant that the pool of alternative options to be explored for Tina could be wider and would need to be re-examined by the court.

Counsel correctly identified that there was no time limit in statute, which governs the period between which applications for s21A challenges in the Court of Protection could be made. The merits of issuing a further challenge on Tina’s behalf was also clear from Article 5(4) of the European Convention on Human Rights as “everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” As Tina had been subject to a fresh standard authorisation since the conclusion of the previous proceedings, the entitlement to issue new proceedings in the Court of Protection had been triggered.

Counsel also highlighted the case of RD & Ors (Duties and Powers of Relevant Person's Representatives and Section 39D IMCAS) (Rev 1) [2016] EWCOP 49 in which the court ruled that it was not the RPR’s role to qualify a detained persons Article 5(4) right in bringing a further application to the Court of Protection.

We took steps to draft a challenge, joining the relevant local authority as the supervisory body for the standard authorisation as the first respondent. The Court issued the application and agreed that a reconsideration of Tina’s residence and care arrangements was justified.

What was the outcome for Tina?

We visited Tina throughout proceedings at her care home to find out her wishes and feelings.

We observed Tina’s wish to become increasingly independent. Saoirse presented this to the court by arguing that Tina had made significant progress with her daily living skills and that supported living placements should now be explored, as opposed to like for like care home properties, as had been suggested in previous proceedings.

We supported Tina to attend visits to supported living placements and present her wishes and feelings on each option to the court and local authority.

Through attending round table meetings, Saoirse was able to negotiate a trial period for Tina in a supported living placement. This was to show the court how Tina managed in a less restrictive setting.

At the end of the trial period, Tina strongly expressed that she wanted to remain at the supported living placement. We were able to agree with the local authority that it was in Tina’s best interests to remain at the supported living placement with a substantial package of care.

A final order was agreed, with the court authorising that it was in Tina’s best interests to move from the care home placement to the supported living provision.

*Name changed to protect identity.

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