‘A dramatic life and the drama is not yet over’ these were the words of DJ Eldergill in a brave and what I think may be a landmark decision in the Court of Protection reported last week: http://www.bailii.org/ew/cases/EWHC/COP/2014/B9.html.
The case concerned Miss Manuela Sykes, who had been diagnosed with dementia in 2006. Over a number of years, Miss Sykes had deteriorated both mentally and physically through self neglect, but DJ Eldergill described her as ‘by nature she is a fighter, a campaigner and a person of passion’.
After a fall Miss Sykes was admitted to hospital, but rather than being discharged back to her home she was, against her wishes, discharged to a nursing home. Because she had ‘protested often and vigorously’ she was subjected to a ‘series of Deprivation of Liberty Safeguards (DOLS authorisations). The matter was brought before the court under s21A of the Mental Capacity Act 2005 allowing Miss Sykes to be eligible for non means tested legal aid so that she was fully legally represented in these proceedings.
So far this story is like that of many thousands of elderly people in Britain diagnosed with dementia and assessed as lacking the capacity to decide where they should live or the type of care or treatment that they need.
Having accepted the evidence that Miss Sykes lacked the capacity to decide where she should live, DJ Eldergill decided that it was in Ms Sykes best interests to return home for a trial period of one month. This was a brave decision and is the first reported decision that I am aware of in which P has been found to lack capacity, yet it is considered in her best interest to return home. DJ Eldergill had accepted that the risk of failure was high but set this against the notion of ‘if not now then when?’. He considered Miss Sykes’ wishes and feelings as an ‘important factor’ and in assessing the weight he gave them he took into account ‘the degree of her incapacity, the strength and consistency of her views’, and significantly in my view ‘the likely impact of knowing that her wishes and feelings are being overridden (if my decision is contrary to her wishes)’. DJ Eldergill also considered the extent to which her wishes could practically be carried out.
DJ Eldergill places huge importance, and in my view rightly so, on ‘individual liberty’ and the right to autonomy. He states in the judgment: ‘The importance of individual liberty is of the same fundamental importance to incapacitated people who still have clear wishes and preferences about how and where they live as it is for those who remain able to make capacitous decisions.‘ Indeed it is.
It is a real ‘feel good’ judgment for those of us who work in this area of law, are growing old ourselves, or have loved ones in similar positions to Miss Sykes. That he named Miss Sykes because ‘she appears always to have placed herself in the public eye, in the mainstream..causing, accepting, courting controversy’ is fantastic too because it allows us all to find out more about her. Hurrah for DJ Eldergill and the Court of Protection.
For further advice about this decision or caring for someone with dementia please contact a member of our Court of Protection team.