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Judge dismisses ‘unaffordable’ care package case

Posted on 30/11/2016 by


Court of Protection ends proceedings after determining man has capacity to make decisions about his care

A Court of Protection judge has dismissed a case where a local authority was “unable and unwilling” to fund a 24-hour care package required to bring a man with severe injuries home from hospital.

Justice Holman ended proceedings in the case of a local authority and X after declaring the 32-year-old man had the capacity to make decisions about his care and where to live. The decision was based on expert evidence submitted from two psychiatrists.

The man sustained severe injuries after falling from a roof in 2011. He has been cared for in a specialist hospital unit since December 2015, following a breakdown of his care package. Last month, the court heard that the local authority could not support the man to return home because the resulting rise in care costs would be “unsustainable in the long-term”.

The man requires 24-hour support and the move would see the cost of his care package increase from £3,000 per week to just under £9,000 per week. The council said this level of funding represented approximately 1.5% of its annual budget for adult social care.

At the time Justice Holman expressed concern about holding further hearings because even if the man was deemed to have capacity, there would be “little room for capacitous choice” due to the limited options available to him.

The council was however asked to send a letter outlining what packages of care, if any, it would commission if he had capacity to decide to return home and chose to do so.

‘Lucidity and rationality’

At a hearing last week, Justice Holman concluded that the man had capacity to make decisions about his care. He said the local authority had written to him explaining that two24-hour care package options had been identified, one costing just under £500,000 a year and the other costing £338,000 a year, but both had been deemed unaffordable for the council.

The council concluded they would not be willing to fund less expensive care packages that would involve a single carer looking after the man due to the severity of his needs and the potential risks involved.

The judge dismissed the local authority’s submission that the man lacked capacity and that the opinions of the two psychiatrists should be cross-examined at a later hearing.

“The clear opinion of these two consultant psychiatrists, both of whom have now known this patient over a period of time, is to the effect that he does have capacity with regard to his residence and care,” Justice Holman said in the judgement.

He also pointed to a submission from the man’s solicitor, which suggested the man was “clearly able to express lucidity and rationality”.

“In these circumstances, it does seem to me that the evidence is currently all one way,” he said.

“It is to the effect that a patient, who was previously considered to lack capacity, does now have capacity… It is true that the written evidence of the two psychiatrists has not been “tested” by cross-examination by or on behalf of the local authority but, as I have said, they do not have any positive evidence to the contrary.”

‘Longstanding funding dispute’

The court also heard that the local authority had applied to withdraw from proceedings following the recent decision of an Independent Local Resolution Panel.

The panel had considered a “longstanding dispute” over whether the care needs of the man should be funded by the council or by the local Clinical Commissioning Group. It concluded that the man was eligible for NHS Continuing Healthcare funding.

Justice Holman did not grant the local authority permission to withdraw from the proceedings on the basis they had “already ceased to exist” due to the ruling on the man’s capacity.

Source: Community Care