Court of Protection case to be reported in real time after landmark legal ruling

Judge rules son’s battle with local authority to care for his elderly father is of ‘specific public interest’

A son’s battle to care for his elderly father made legal history on Monday when a judge ruled that his case against the local authority could be reported in “real time”.

At the centre of the case is a 92-year-old widower who, his adult son claims, is being forced against his wishes to live in a care home where he is being unlawfully denied contact with his son.

The case is being heard in the court of protection, which deals with vulnerable people who are assessed as not being able to make decisions about their own lives.

These courts rarely allow their proceedings to be reported, even when a person’s freedom is at stake or, in medical cases involving the removal of life-support machines, their lives.

When publicity is granted by the judge, reporting is strictly limited to a few key facts that can only be published after the final judgment has been made. Initials, as in the current case, are used to anonymise the individuals and institutions involved.

Monday’s breakthrough happened after the judge, Mr Justice Ryder, ruled that the case is “a paradigm case in an area which happens to be at the forefront of public awareness, [and is] therefore not just of general public interest but of specific public interest”.

It is thought to be the first time that detailed reporting has been permitted while a court of protection case is in progress. The judge also broke with protocol by ordering “fairly generous access to material” produced by all the parties in evidence. The ruling means that, for the first time, the public will both be able to follow the step-by-step decision-making process of the court, set up in 2007. They will also, for the first time, be able to examine the arguments over whether and when the controversial Deprivation of Liberty Orders, which came into force in April 2009, should be applied to hospital patients and residents of care homes.

The court case was triggered by accusations by SJ’s adult son, DJ, that his recently widowed father had been unlawfully deprived of his liberty since 22 February 2011, when he was forced to stay in the care home at which he had been receiving respite care instead of being allowed to return home.

DJ also claims that both the care home and the local authority have unlawfully refused to allow unsupervised contact between the two men.

The local authority contests DJ’s claims. It maintains there are “straightforward health and welfare matters” and “safeguarding issues” behind the decision. It said that bruising discovered on SJ’s body when he was first admitted to the residential home in December suggested he had been abused by his son: suspicions, it said, that were strengthened by the father’s own claims that his son had hurt him.

These allegations are “vigorously denied” by DJ, who claims the bruising was the result of trying to control his father when he became agitated. DJ also argues that his father’s Alzheimer’s disease leads to him making accusations against others.

The local authority concedes that the accusations of abuse are not supported by police. In court on Monday, it also failed to present any medical evidence supporting its allegations.

Crucially, DJ contests the local authority’s claim that his father lacks the mental capacity to decide where he lives; a claim backed by an independent consultant psychiatrist. DJ also maintains that his father wants to come home.

The local authority disagrees. It says SJ is content to remain in the care home and that any claims he makes to the contrary are the result of manipulation by his son.

The local authority is seeking an order to keep SJ at the care home, and return him to it if he leaves or is removed “with the use of reasonable and proportionate physical contact if necessary”.

Ulele Burnham, representing the official solicitor – a public official who acts as the “friend” of people involved in court cases who are not competent to make decisions for themselves – agreed that, at least temporarily, SJ does indeed lack capacity and should remain at the care home until more assessments have been made.

In her submission, Burnham said that “even leaving aside momentarily the issue of whether DJ’s contact with SJ has been improperly restricted, SJ has not lived at home for some eight months and has not seen DJ for some three months.

“It is clear from the evidence that the official solicitor has so far seen, that even if the concerns about alleged abuse by DJ were misconstructions or were false, it is clear, sadly, that DJ was struggling to care for SJ both before and after his mother’s death.”

Allegations by DJ that his father has been mistreated in the case home are, added Burnham, “not sustainable”.

DJ, however, is adamant that his father is being illegally deprived of his liberty. “I would like my father to come home as that is his wish. My father is miserable in the care home and asks of his own volition to be taken home whenever we speak. I am certain that it is in his best interests to come home.”

“I deny abusing my father and my position is that he falls over and then makes allegations. He has continued to fall and make allegations against others while in the care home. It is common for people with Alzheimer’s to make inaccurate allegations and in this case, the council only started to take them seriously when we fell out,” he added. “Under questioning, my father is very vulnerable to suggestion. The council prejudged the investigation into the matter.”

The case continues.

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