How the court decides best interests: part 1 What are my options?

I wanted to offer some practical insights on how the Court of Protection makes decisions about what is in a person’s (always referred to as P) best interests. Because it sounds simple, but it isn’t. And I’ve spoken to so many professionals and family members who are so clear that they are advocating for P’s best interests that they cannot see how the court would ever disagree with them. And that leads to poor evidence, so I figured if we can understand what the court is going to do, then we can hopefully prepare better for these proceedings. Especially if people are struggling to get legal advice for any reason.

I’m going to use a fictional example, which I hope will help you apply this in practice. In this example, P is a young man in his twenties with a moderate learning disability. His care is arranged by Green Council (but the principles would also apply if an NHS CCG is funding the care), and he has lived at home with his parents until their own health began to fail. He’s been in hospital for an infection and the court is being asked to decide where he should be discharged to because he’s been assessed as lacking capacity to make that decision. He has a sister Q, who is a party to the proceedings and P is represented by the Official Solicitor.

So the first thing to remember, and I have said this before, is that ‘best interests’ does not mean the same as ‘what I think best’. It is a statutory test, and so anyone arguing that a particular course of action is in P’s best interests, should be setting out how they are applying that test. That means they should start by identifying what the options are (a step often missed). These options have to be available. So moving to a full care home is not available, but being cared for at home until a bed at that preferred care home becomes available might be. And if funding is not available for 24 hour care in P’s home, then this isn’t an available option, but going home with the care that might be funded could be an available option.

In proceedings, these options are almost always identified by the funding authority, in this case Green Council. The first order of the court will direct them to provide a statement setting out the available options, unless they have already done so when they made the application. With a bit of luck, this will be clear and thorough the first time round. If not, well this is stage 1 of the argument about best interests. The court needs to be sure all available options have been identified before it decides which of those options should be pursued.

Sometimes it will be necessary to make decisions in an urgent situation when there isn’t a lot of time to spend on this step. But most of the time, this will be the topic of lengthy discussions.

So here we go…

When Q and the Official Solicitor receive the statement, they go through it and decide whether they can think of any other options that ought to be considered. In this statement, Green Council have said there are 3 care homes that could look after P, which have vacancies. No other options have been considered.

So the Official Solicitor says they would like Green Council to explore the option of a supported living placement before a decision is made. Q wants P to live with her at her house. Both raise this at a meeting a week before the hearing is due to take place.

Green Council says there isn’t time to look into those now, because P needs to leave hospital as soon as possible. Now time is sometimes a good reason not to explore other options, but not always. If P was living at home on his own and at significant risk of harm, then the time argument would be very strong and the court would likely make an interim decision on the information currently available. But if P was in a respite bed in a care home, and not distressed, then the court is unlikely to make a decision until the other options have been explored.

Hospital discharge can go either way, and it mostly comes down to whether P is happy in hospital, whether he will move without the need for restraint, and whether he is at increased risk of infection or deterioration if he stays in hospital. Bed-blocking is very rarely a good reason to rush a move, however.

The judge in this case decides that P is not coping well in hospital and staying there for another few weeks until further evidence is prepared is not in his best interests. It permits Green Council to move P to Blue Care Home, on an interim basis. It says there should be another hearing which should take place in 2 months, and between now and then, Green Council must do a further witness statement setting out whether supported living or living with Q are available options.

Green Council does so within 6 weeks. It says that there are 4 supported living vacancies in the area, but 2 providers have assessed P and said they can’t meet his needs. 1, Red House, has said it can meet his needs, but it’s cost is above P’s personal budget. The other, Yellow Cottage, is within the personal budget but Green Council is concerned about the main road outside the building. It is says that this would make P unsafe at Yellow Cottage so this is not an available option. Green Council also says that Q’s house isn’t suitable for P because Q would not be able to provide the care he needs. It concludes that residential care is the only viable option and says Blue Care Home is in his best interests as he has now settled there.

The Official Solicitor does a large sigh, and points out that Red House is available if the local authority increases the personal budget. They also say that Yellow Cottage is an available option, and that it is for the court to decide whether it is in P’s interests to live there, which means there should be a risk assessment looking at whether he will be safe living near the main road. Further, living with Q should not be ruled out yet because it hasn’t explored whether a formal support package could be put in place at Q’s house. Q agrees.

This will go on for a while, sometimes, especially as vacancies come and go. So this will be covered in a few statements, before the options that are ‘on the table’ have been identified to the courts satisfaction and then the pros and cons weighed up, which we’ll talk about next time.

In this case, the options that are considered ‘available’ are Blue Care Home, Yellow Cottage and living with Q and having a package of care of 4 visits a day provided by Pink Care Agency, and additional support from Q. Red House is not available because the local authority will not increase the personal budget.

So now both Q and the Official Solicitor are a step closer to achieving what they want, through applying this part of the best interests process.

We’ll pick it up from there next time.

In case it isn’t obvious from the fact I still haven’t identified the authority I used to work for, or the organisation I now work for, the views expressed on this blog are my own opinion and not the opinion of either that local authority or organisation