VE v AO & Ors [2020] EWCOP 23

This matter involved an application by VE for an order that it was in her mother’s (P’s) best interests to be allowed to leave the care home in which she was residing. This was a an extremely urgent matter in view of P’s terminal cancer and the risk of contracting Covid 19, the judge made an order however reserved the reasoning.

The application was originally framed as a challenge to the deprivation of P’s liberty under the Mental Capacity Act 2005 (MCA) and therefore a case concerning Article 5 ECHR. However, as the matter progressed, it became increasingly clear that it was really a case about P’s best interests under the MCA and the proportionality of the interference in her family life under Article 8 ECHR.

When P was staying with VE over Christmas 2019, VE became concerned about her mother's health and her swollen abdomen. She was referred to King's College Hospital for a scan and was diagnosed with advanced terminal ovarian cancer which had spread to her other vital organs. P had stayed with VE for some six weeks over Christmas. She was admitted to King's College Hospital (KCH) in mid-January 2020.

On 6 March 2020 VE issued an application for personal welfare orders in respect of her mother seeking P's discharge from hospital into her care. Within those proceedings VE issued a further application on 9 April 2020 and the proceedings have now been reconstituted as a s.21A Mental Capacity Act challenge to P's deprivation of liberty. Various directions were made for the Official Solicitor to be invited to represent AO and for evidence to be produced.

The was made under s.21A Mental Capacity Act 2005 as a challenge to the legality of P's deprivation of liberty at TO. Any decision as to deprivation of liberty would inevitably follow the best interest’s assessment as to where she lived. All parties agreed that P does not have capacity to litigate or to decide where she lives.

It was found that it was in P's best interests to leave the care home and go to live with VE immediately. The order took immediate effect. The judge stressed at the outset that the arguments turned on the fact that P had terminal cancer and was going to die within a relatively short time. It was not argued that P should not be allowed to leave because of the risk of Covid 19, or that any possible public interest in not allowing her to move outweighed her best interests, or her article 8 rights.

At the time of the decision it was not clear whether or not any of the other residents at the care home had Covid 19, and it was not being said that P had Covid 19, but it was a possibility given some accounts of P’s symptoms.

The important part of the judgment is that it was solely about what is in P's best interests in the given circumstances given she had terminal cancer and her family wanted her to die at home with them.

The full judgement can be read here

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