AG v AM [2019] EWCOP 59 

This article originally appeared in Issue 5 (May 2020).

The court considered an application by the wife of a man with substantial and complex care needs to for him to be discharged from a specialist nursing facility in order to live and receive care at home. 

In 2008, “AM” suffered a devastating stroke. He maintained movement in his limbs but this was non-functional. He suffered from cognitive impairment and significant communication difficulties (severe expressive dysphasia and moderate receptive dysphasia). He was doubly incontinent and required 24-hour care. He received nutrition and hydration via PEG. He had insulin type-II diabetes and cortical blindness. 

At the time of the hearing, he was compulsorily residing at a nursing home under the terms of a “standard authorisation” under Schedule A1 of the Mental Capacity Act 2005 (“MCA 2005”). The nursing home specialised in accommodating residents with profound and complex disabilities. It offered 24-hour nursing care, and had access to on-site GP and SALT services. It was located around 8 miles from the family home. 

After 28 years of marriage, AG (AM’s wife) made an application under section 21A of the MCA 2005 for a determination of AM’s best interests such as would permit him to be discharged from the nursing facility to reside at home with his family. The application was opposed as not being in AM’s best interests by the Official Solicitor (acting on AM’s behalf), by the local authority, and by one of AM’s sons (from a previous marriage). 

Reading the judgment of District Judge Eldergill provides a helpful introduction for those unfamiliar with, but interested in, this branch of the law. Careful and detailed, it sets out a useful summary of the relevant legal principles on capacity and best interests under the MCA 2005, and their interaction with human rights considerations (which, helpfully, were not disputed in the case). It also provides an excellent example of the careful way the court will seek to give voice and weight to the many sensitive interests involved in such a case. In particular, there is a very useful expression of the way in which the court should determine and have regard to the wishes of the person whose best interests are to be determined: 

“The fact that the individual’s past and present wishes, feelings, beliefs and values must be considered tells us that this is not a sterile objective test of best interests. It is not a case of trying to determine what some hypothetical objective or rational person would decide in this situation when presented with these choices. Nor are we seeking to do nothing more sophisticated than impose on the individual an objective and rational analysis based on professional expertise of what they ought sensibly to do in that situation. 

The law requires objective analysis of a subject not an object. The incapacitated person is the subject. Therefore, it is their welfare in the context of their wishes, feelings, beliefs and values that is important. This is the principle of beneficence which asserts an obligation to help others further their important and legitimate interests, not one’s own. In this important sense, the judge no less than the public authorities is AM’s servant, not his master.” 

The court concluded that the evidence showed that AM wished to live at home and be cared for by his wife if at all possible, although this was tempered with an acknowledgement that he perhaps did not appreciate all the risks entailed with living at home. The court also gave weight to the fact that great efforts had been made by his family and the local Clinical Commissioning Group (“CCG”) to propose a viable, funded package of care which would meet his daily needs. 

However, there ultimately proved to be a decisive consideration militating in the other direction, that being that if he was cared for at home, AM would not have access to the proactive and highly responsive medical services which were available to him in the nursing home context (the CCG was not willing to fund enhanced GP care at home – a decision which could not be interfered with by the court absent a successful public law challenge). A number of GPs in the area had made it clear that they would not wish to register him as a patient, and the judge concluded that the medical care provided to him would not go beyond that required by the general contracts under which the GPs operated. 

This meant that there could be delays in accessing medical care, and yet there was evidence to show that AM did not always manifest typical symptoms when he had a health problem, and further, he could deteriorate very rapidly. In turn, this meant that there was a risk of more admissions to hospital, serious illness and death. Added to this were the considerations that the nursing home (which had many advantages not to be found elsewhere) was not able to hold his place for more than 14 days after he left, and a trial was not an available option. In the round, despite the many factors in favour of the application, it was not one that the judge felt able to accede to. In this sad case, it was in AM’s best interests to remain in the nursing home, notwithstanding that this involved a deprivation of his liberty and went against the wishes of himself and his family.