Landmark Deprivation of Liberty Decision

In a landmark blow for dignity and independence in old age, a judge has ruled that a gravely ill pensioner must be allowed to return home to be with her beloved partner – and possibly face death – rather than be forced to stay in a care home ‘at the cost of her happiness’.

Lawyers representing the 67-year-old woman, who suffers from acute diabetes and reduced mental capacity, had challenged a deprivation of liberty authorisation by which she had been restrained from leaving the care home. It was said that she ‘hated’ the care home and had threatened to take her own life if forced to remain there.

Medical professionals in charge of her treatment submitted that she required 24-hour monitoring and care which could not be provided within her own home. She had shown a reluctance to co-operate with carers and a lack of appreciation of the seriousness of her condition.

However, in lifting the restriction on her liberty and allowing her to return home to her partner, Mr Justice Peter Jackson noted, “She hates it at the care home; she hates the people; she hates the noise, the impersonality, the lack of privacy and the absence of her own surroundings.”

Describing the difficult balancing exercise that had to be performed, the judge in the Court of Protection, said, “There are only two available options: a continuation of the status quo and a return home with a standard care package. No other alternatives are available. Twenty-four-hour medical care at home is prohibitively expensive and would anyhow be rejected by her.

“She has repeatedly and consistently said that she wishes to return home and has said that she will take her own life if this is not allowed to happen. She has an inflexible, but mistaken, belief that she can manage her own diabetes and consequently cannot weigh up the serious risks involved in a reduction in the level of supervision.”

The judge acknowledged that the woman’s return home would entail the risk that she might die if her condition suddenly deteriorated. However, he added, “The right to life and the state’s obligation to protect it is not absolute and the Court must surely have regard to the person’s own assessment of their quality of life.

“In this woman’s case, there is little to be said for a solution that attempts, without any guarantee of success, to preserve her daily life without meaning or happiness and which she, with some justification, regards as insupportable.

“Her views are quite understandable bearing in mind the restricted and impoverished quality of life in the home. That is no fault of the home itself, but it is in most ways not a suitable place for her. What it does offer is the best available quality of care for her diabetes management, but at what cost?

“In the end, if she remains confined in a home she is entitled to ask ‘What for?’ The only answer that could be provided at the moment is, ‘To keep you alive as long as possible.’ In my view, that is not a sufficient answer.”

Whilst accepting that a return home would bring ‘many uncertainties’, the judge concluded, “Having weighed these matters up, I have reached the clear conclusion that the case for a continued deprivation of her liberty has not been made out.”

The judge praised the care home’s efforts in looking after the woman, who had been living there for a little over a year. However, he ordered that she be allowed to return home with the benefit of a regular cycle of support and medical care.

He concluded, “My message to her is this: I hope that you will be happy when you return home. If you accept the support you will be getting from district nurses and carers it may be possible for you to stay there. If you do not accept that support, you will probably have to return to the care home.”