This case MA v Gateshead Council (1) and 2 Others [2024] EWCOP 34 concerned whether it was in the best interests of MA who is 90 years old and has dementia to have a trial placement back at her home together with a package of care.
Due to dementia, MA was unable to understand, retain, weigh or use the relevant information to decide where she should live and receive care. As such, the Court of Protection had jurisdiction to make a best interests decision on her behalf.
In making that determination, it was acknowledged consideration must be given to MA’s past and present wishes and feelings as well as the beliefs and values which they would consider if able to do so.
The weight attached to them however is dependent on the degree of incapacity and the extent to which they are rational and capable of sensible implementation.
Account must also be taken of those engaged in caring for the person or interested in their welfare.
There must also be a balancing exercise between the sum of certain and possible gains as well as losses.
Finally, the paternalistic temptation to always put the physical health and safety of the vulnerable before happiness, dignity and emotional welfare must be avoided.
In this case, the evidence of all the witnesses agreed it is MA’s wish to return home and a trial placement should be facilitated so its appropriateness in the longer term could be ruled in or out.
In so doing, it was conceded there is no perfect solution and the decision was finely balanced.
In the end, what tipped the balance in favour of the trial placement was, when compared with a care home, this represented the least restrictive option.
Gemma Quinn is a Legal Director in the catastrophic and large loss injury team based in Manchester and lead of the Court of Protection subject matter group.
"You cannot eliminate all risks and physical health and safety can sometimes be bought at too high a price in happiness and emotional welfare"
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