DM v Y City Council [2017] EWCOP 13 (15 June 2017)

Paramount Legal CostsThis was an application brought on behalf of ‘DM’ under Section 21(A) of the Mental Capacity Act 2005 and was by way of a challenge to a Standard Authorisation dated 03/02/17 authorising the deprivation of DM’s liberty at a Care Home for 6 months which expired on 02/08/17. However, the primary issue was whether DM should continue to live and be cared for at the Home which forbids alcohol (DM was currently abstinent from alcohol) or whether he should be moved to a Home which allowed alcohol, as DM wished.

DM was aged 69 and had lived at the home since 2012 but he regularly expressed the wish to leave. He had no contact with family or friends. He was diagnosed in 2004 with Korsakoff’s Syndrome which was a form of alcohol-related dementia and was a chronic memory disorder which was commonly due to alcohol abuse. However DM had been abstinent for 5 years apart from one occasion when he was out in the community with a member of staff. He managed to get away from the staff member and buy some beer which he then drank.

DM currently required support, prompting, assistance and supervision with almost all aspects of his daily living. He had a friend ‘B’ in the home who was a recovered alcoholic and was wheelchair bound. But DM still consistently expressed the wish the Home and live on his own, without any support and so that he could drink alcohol. Unfortunately he did not understand or remember why he was at the Home. He also denied that he had a problem with alcohol because he did not understand or realise that he had one.

On interview by the Bests Interest Assessor in January 2017 regarding the then pending deprivation of liberty authorisation which was made on 03/02/17, when asked about the Home, DM said that the staff were looking after him and he was happy there but he did want to live in his own place alone, then he would be able to buy alcohol and this ‘would make him happy’. When DM was seen by the Solicitor instructed by the Official Solicitor he told her that it was important for him to be able to have a drink. When the Solicitor asked him about drinking and that it would mean that his life expectancy would be curtailed he said that everyone had to die sometime and was generally dismissive that drinking alcohol would make him ill.

DM’s latest ultrasound scan suggested the presence of cirrhosis of the liver and it was possible that DM would have a life expectancy of about 7 years if he continued to abstain from alcohol. However if DM was to drink a low level of about 14 units per week then his life expectancy could be reduced down to about 3 years.

Alternative Care Homes which allowed alcohol had been looked into but DM really wanted to move into a flat. This was not an option though, as the local authority was not willing to instruct the necessary support services that DM would need to live on his own.

DM’s social worker was of the firm opinion that it would be against DM’s best interests to move him to an alternative home where DM could drink alcohol as this would have a detrimental effect on his physical and mental health.

Mr. Justice Bodey considered the cases of Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67 and Local Authority X v MM & Another [2007] EWHC 2003 and all the issues and it was a finely balanced decision. He initially thought when reading the papers that DM’s happiness would be best served by consenting to his wishes and feelings, so that he could be moved to a home where he could drink alcohol. But after hearing the evidence from the social worker it was highly unlikely that DM would be content with a limited or controlled quantity of alcohol and if he moved away from the home DM’s friendship with B would be lost and this was the only meaningful personal relationship he had.

Mr. Justice Bodey was satisfied that it would be best for DM to remain at the current Home and therefore rejected the challenge to the extant Standard Authorisation which authorised DM’s deprivation of liberty at the Home. This was in line with the closing submissions from the Official Solicitor and the authorisation was to remain in force until 02/08/17, prior to which it would require renewal under the statutory scheme without reference to the Court. DM could challenge the Standard Authorisation which was likely to be made before 02/08/17 if he remained distressed in the medium to longer term.

The full judgment can be read here.

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