NP, Re [2020] EWCOP 44

This case considered whether P, who was about to be discharged from a neuro-rehabilitation unit, should return to the marital home or move to a residential care home.

P is a 69-year-old man with diagnoses of neurological sequelae of herpesviral encephalitis and personality change due to known psychological condition. On 2 December 2018, P collapsed at home and had to be hospitalised. On 4 February 2019 P was transferred to the neuro-rehabilitation unit where he currently resides. In September 2019 the neuro-rehabilitation unit advised that P’s recovery had ‘plateaued’ and that he was not going to be receiving any further physiotherapy or occupational therapy and was therefore medically fit for discharge. The Local Authority believed that P’s needs would be best met in a residential care home, but P’s wife wished for him to return home with a package of care.

There was no dispute that P lacks the capacity to conduct proceedings and to make decisions regarding his residence and care needs.

The Local Authority’s view was that it was not in P’s best interests to return home because, in the event of a breakdown, it would be easier for him to adjust rather than returning home first and then needing admission to the care home or another placement on a temporary basis. The social worker’s concerns on sustainability focused on P’s “behavioural volatility which can lead to his physical aggression on an unpredictable basis”, and he was concerned for the welfare of P’s wife and the other carers in having to manage such likely incidents.

P’s wife responded to these concerns and explained how she was able and willing to meet P’s needs at home stating that it would be wrong not to try a trial at home, even with a degree of pessimism, if a placement is available with a package of support. If a trial is not attempted now, the reality is that P will never again have the opportunity to live in his own home with his wife.

On behalf of P, the Official Solicitor’s position was that a trial at home was in P’s best interests. No option being risk-free, if the return home fails, it is likely to do so quickly, and the strength of the relationship between P and his wife, coupled with her ability and  willingness to provide care, supported by a care package paid for by the Local Authority, means that the return home is feasible and that there is both a plan in place that prevents known risks from arising, as well as the contingency of a vacancy at the care home being kept open for three weeks. The Official Solicitor took the view that a trial return home was the less restrictive of the two options, the most proportionate and the option that best afforded P his rights under article 8 of the European Convention on Human Rights and article 19 of the UN Convention on the Rights of Persons with Disabilities.

The court agreed that a trial period in the marital home would be the best option, concluding that there was not such a level of risk in the trial as to prevent the court from considering it to be in the best interests of P to attempt the same.

The full judgement can be read here

If you have any questions regarding this summary case law please contact Julie Fitzpatrick here


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