Posted on: September 10th, 2018

The application to the Court of Protection involved a 55 year old woman ‘P’ who originated from Columbia. On 1 May 2014 P collapsed at a bus stop and was taken to hospital.

P had emergency bypass surgery and was diagnosed as having sustained a hypoxic brain injury, as a result of her collapse. P was transferred to Royal Hospital for Neurodisability where she remained for three years and five months.

Due to the hypoxic brain injury sustained, which is a result of oxygen starvation to the brain P had severe cognitive impairment and she required significant care. P was deemed as not having capacity under the Mental Capacity Act 2005.

Even though P lacked capacity she was abundantly clear at every available opportunity since September 2014 that she wanted to return to Colombia to be with her family, who could provide care for her. P was a Spanish speaker and a Spanish speaking environment was deemed as crucial for P’s wellbeing. It was clear that Spanish staff should be available 24 hours a day to care for P, yet this care was being provided on an ad hoc basis, leaving P to be predominantly cared for by people who could not speak Spanish. This caused P significant distress.

After significant delays P was finally repatriated back to Columbia on 25 January 2018.

The law states that before an act is done, or a decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action. The law also states that the person’s wishes and feeling should be considered when making a best interest decision.

In relation to P’s case, although the local authority and the Lambeth CCG supported P’s wish to return to Columbia, they did nothing to progress this. Therefore despite P lacking capacity, her wishes were clear and they were not fully taken into account. It is also difficult to imagine how the previous environment that P was in was in her best interests, as even a basic need for a Spanish speaker was not provided. It was also considered that keeping her away from her home and family does not seem like the least restrictive option.

The Judge was less than impressed and did not follow the normal practice in Court of Protection cases ordering costs to be paid against the Local Authority and the Lambeth CCG.
P’s case is very unfortunate and it highlights the importance of considering the Mental Capacity Act when making a best interest decision.

Click here to read more about this case.