A recent decision is a useful reminder of the distinction between public law decisions and best interests decisions (the Court of Protection having jurisdiction over the former but not the latter) and the way in which, in practice, public law decisions may limit significantly the best interests decisions that can sensibly be made, writes the CoP team at 39 Essex Chambers.
The case of AG v AM and Others  EWCOP 59 concerned a s.21A challenge to a DoLS authorisation and the two available options were: (i) P remaining in the nursing home where he was residing at the time; or (ii) P returning home with a package of care funded by the CCG.
However, the CCG was not prepared to keep P’s place at the nursing home open while the home care option was trialled. Moreover, the home care option relied on standard GP services – the CCG was not willing to provide enhanced GP services.
From the outset DJ Eldergill recognised that:
"…there is a limit to what the NHS can or is willing to spend on care at home as an alternative to care in a nursing home. […] [P]rovided they do not act so irrationally as to be unlawful, etc, it is NHS bodies, local and other public authorities – not judges – who decide how to allocate their limited resources between the local citizens for whom they must provide.
I accept that this court cannot direct a local authority or NHS body to provide services which they have assessed that AM does not require or which they have decided at their reasonable discretion not to provide."
As such, he was limited to the available options. This meant that although DJ Eldergill indicated that he would have wanted to trial the home care package (while keeping P’s current nursing place open), this course of action was not open to him.
The decision is also a useful example of the balance sheet analysis, with the Judge considering in detail the advantages and disadvantages of the two available options as a means of reaching his final conclusion on best interests. In short, the Judge found that the home package had much to commend it, including the provision of care by loved ones, cultural familiarity (P was originally from Somalia), visits from friends and neighbours, as well as being a significant package of care.
However, the critical factor weighing against P’s return home was that under the package offered by the CCG, P would have to rely on standard GP services for his medical care (whereas at the nursing home 24-hour medical support would be available). The likely consequences for P of this reduced medical input included an increase in the number of hospital admissions as well as an increased risk of premature death. DJ Eldergill considered the seriousness of this issue to be underlined by the fact that none of the local GP practices with whom P’s case had been discussed had expressed a willingness to register him as a patient (even if the CCG could ultimately compel them to do so).
In such circumstances the judge concluded: “…I believe that granting AG’s application carries a significant risk of her husband losing his place and current quality of life at X Nursing Home without there being a corresponding ‘risk of gain’ which justifies the risk of harm.”
This article was written by the Court of Protection team at 39 Essex Chambers.