Stephen Martineau summarizes a recent case at the Court of Protection involving hoarding behaviour: AC and GC (Capacity: Hoarding: Best Interests)  EWCOP 39. With thanks to Neil Allen for alerting us to the judgment via this Tweet.
The NIHR Policy Research Unit in Health and Social Care Workforce, where Stephen is Research Fellow, recently completed a study of self-neglect and hoarding behaviour among older people and it has just commenced another study on the commissioning of decluttering services by local authorities (this study is recruiting participants). Both projects are funded by the NIHR School for Social Care Research.
We are holding an online seminar engaging legal and psychological perspectives on hoarding: Mon 28 Nov 2022, 10am-11.30am. (2,294 words)
This case concerned AC, a 92-year-old woman. She had been sharing her home (which she owned) with her son, GC, since her husband’s death eleven years earlier. GC had given up his job and had become his mother’s main carer. In February 2022 she was taken to hospital by emergency services and in March was discharged from hospital to a care home as a result of a best interests decision. There had been concerns about the unsanitary conditions at her home and their potential impact on her health and welfare.
The question to be decided in summer 2022 was whether AC should now return home for a trial period, receiving a package of care there. It was her wish to return home, while the local authority thought she should remain at the care home. We learn from this judgment (August 2022) that both AC and her son were diagnosed by a clinical psychologist, Professor Salkovskis, as having a hoarding disorder (among other conditions), and also that both have their own social worker.
The judge, HHJ Clayton, had already been managing the case for two years: there had been earlier applications to the Court of Protection by the local authority (and the judgment alludes to yet earlier proceedings that had ended in 2018). In August 2020, the local authority had applied for AC to be moved to a respite placement while the poor conditions at her property were addressed. More recently, it had sought an order that her son leave the property for the same reason.
Much of the difficulty of the case arose because of concerns around GC’s mental health. If AC were to return home, it was proposed that he would be the ‘second carer’ (after the care agency).
Capacity declarations by the court
In March 2022, AC had been found to lack capacity to make decisions about where to live, and her care and support, and it was decided that it was in her best interests to move from hospital to a care home. The judgment records that AC lacked capacity to make decisions about her property and affairs, and her items and belongings.
According to Professor Salkovskis, the inability to make decisions about residence, care, and her own items and belongings was ‘due to the interaction between her long-established hoarding tendencies and memory impairment’ (Appendix 2). Since 2018 she had lived with a diagnosis of Alzheimer’s dementia and alcohol-related brain damage.
‘In relation to GC, final declarations were made that he has capacity to conduct these proceedings but lacks capacity to make decisions about managing his items and belongings (as opposed to his property and affairs more generally) and those of AC’ (para 13). The cause for this inability is not specified, but the judgment references his Asperger’s Syndrome, anxiety, obsessive compulsive disorder (OCD), hoarding disorder and occasions of depression.
In neither AC’s nor GC’s case does the judgment specify which of the s.3(1) Mental Capacity Act 2005 (MCA) abilities (understand / retain / use or weigh / communicate) were impaired.
Professor Salkovskis identified (and the parties and the court agreed) that the information relevant to making decisions (under s.3 MCA) in respect of one’s items and belongings was as follows:
‘(1) Volume of belongings and impact on use of rooms: the relative volume of belongings in relation to the degree to which they impair the usual function of the important rooms in the property for you (and other residents in the property) (e.g. whether the bedroom is available for sleeping, the kitchen for the preparation of food etc). Rooms used for storage (box rooms) would not be relevant, although may be relevant to issues of (3) and (4).
(2) Safe access and use: the extent to which you (and other residents in the property) are able or not to safely access and use the living areas.
(3) Creation of hazards: the extent to which the accumulated belongings create actual or potential hazards in terms of the health and safety of those resident in the property. This would include the impact of the accumulated belongings on the functioning, maintenance and safety of utilities (heating, lighting, water, washing facilities for both residents and their clothing). In terms of direct hazards this would include key areas of hygiene (toilets, food storage and preparation), the potential for or actual vermin infestation and risk of fire to the extent that the accumulated possessions would provide fuel for an outbreak of fire, and that escape and rescue routes were inaccessible or hazardous through accumulated clutter.
(4) Safety of building: the extent to which accumulated clutter and inaccessibility could compromise the structural integrity and therefore safety of the building.
(5) Removal/disposal of hazardous levels of belongings: that safe and effective removal and/or disposal of hazardous levels of accumulated possessions is possible and desirable on the basis of a “normal” evaluation of utility.’ (para 14)
The judgment goes on:
‘Given the consensus that both AC and GC lacked capacity to make decisions about their items and belongings, the court has made best interests decisions to enable the family to be supported to have house-clearing and cleaning services enter the property on a number of occasions, along with legal representatives, to dispose of perished items and to either remove to storage or dispose of hazardous levels of belongings.’ (para 15)
Was a trial period at home in AC’s best interests?
Local authority evidence
Sharon Holland, the local authority social worker, made 10 witness statements (the judge commending her contribution). In her view it was in AC’s best interests to remain at the care home, and not to have a trial return home, because of the:
- Risk of AC’s self-neglect at home because she may refuse care
- High risk of GC continuing to hoard in light of the expert evidence on his condition
- Risk of carers ending AC’s home care package if conditions there deteriorate
- Impact on GC’s mental health if his belongings were taken away as a prerequisite for AC’s return
- Concerns that efforts to address conditions at the property would not be sustained once the legal proceedings end. (para 17)
On the other hand, Sharon Holland said that AC wanted to return home and the fire service reported that conditions at the home had recently improved. She acknowledged that it was positive that GC had agreed to disclaim his lasting power of attorney (LPA) with respect to AC’s property and affairs – to be replaced by a deputy. According to the judgment, the deputy would have ‘authority to remove items from the property whether they belong to AC or GC as it is AC’s home’ (para 25; and see further below). Nevertheless, she remained concerned that a return home would not be sustainable – in relation to keeping the property clear, the day-to-day running of the home, and in relation to GC’s ability to care for AC (as second carer) since, in Sharon Holland’s words, he ‘is an unwell man and has his own issues’ (para 19).
With respect to the risk of AC’s self-neglect, the judge found that there was ‘good evidence to show that she is accepting of professional care and recognises there is a benefit to her from it’ (para 26).
Otherwise, much of the local authority’s concerns revolved around the role and mental health of AC’s son and the judgment pays considerable attention to these, concluding that there was cause for optimism.
First, the judge found that ‘[t]here is no doubt that GC wants, more than anything else, for AC to return to her own home and be able to live there until she dies’ (para 26).
Second, the ending of the LPA and the handing over of power to the deputy was a very big step and understood by GC to be a prerequisite to AC’s return home. GC’s barrister said that the deputy would endeavour to work collaboratively with GC, the judgment suggesting that ‘[t]he burden will be lifted from GC’ (para 28). The deputy would employ a weekly cleaner and could pay for GC’s solicitor (with whom GC had developed a trusting relationship) so that the solicitor could advise and encourage him to continue with his decluttering programme. Similarly, the care agency, the manager of which had met with GC, could deal directly with the deputy in order to increase the chances of success of the care package.
As to GC’s mental health, he had started a programme of psychotherapy, although Professor Salkovskis questioned whether it was the right kind. He said that the combination of OCD and a hoarding disorder was particularly serious, describing it as ‘like having Covid on top of asthma’ (para 21).
Finally, concerns around GC’s role in the return home were addressed in the list of 17 conditions attached to the trial proposal, all of which he had agreed to (para 32 / Appendix 1). For example, it was a condition of the trial that GC should continue to see a therapist. The home was to be kept in the same condition or better than it was at the date of the hearing. There would be announced and unannounced visits by relevant professionals to allow them to assess, monitor and review the state of the property and AC’s well-being. There was no suggestion in the judgment that GC was being obstructive to care workers, but it was one of the conditions that GC must give them full access. Also, if AC were to refuse care from them, GC was to encourage her to be receptive.
Judge’s visit to AC at the care home
At AC’s request, the judge visited her in the care home: ‘It was a real pleasure to meet AC, in a quiet room designated for worship at the care home, on a very sunny afternoon. The home was very large, clean and very quiet’ (para 24). AC told the judge that she wanted to be at home with GC and her cat, Jasper. She said that she liked to have her own things around her, to help her do legal work and investment work and that, in her words, ‘it’s been a nightmare being removed from it’ (para 24). She was anxious that people may have been too ruthless in clearing her belongings, and she was offered reassurance about this. She was clear that her home was a mess and said that GC was good at looking after her although, because of his OCD, he was not a tidy person. AC appeared to acknowledge that if she returned home she would need to have professional carers in to help her.
Best interests decision
The judge concluded that it was in AC’s best interests to return home for a trial period of 10 weeks, with the set of 17 conditions to be met as part of the trial – these being chiefly directed at GC. AC would pay for the care package at home. During this period, the costs of holding open the place at the care home would be shared between AC and the local authority, in case the trial period was not a success. An assessment of the trial period would be conducted by an Independent Social Worker (and AC would pay towards the cost of this assessment).
The grounds for this decision were explained by HHJ Clayton:
‘Ultimately what has persuaded the Official Solicitor [who represented AC] that a trial at home is in the best interests of AC is the consistency of her wishes to return, with her having such a strong sense of belonging to her home, to wanting to be where she has looked after people for three generations, where she can remember the past. I concur and add that that she has a strong desire to continue to live with her son, who moved back home to help care for her when her husband died, some 11 years ago, where she has familiar things around her, which takes on an even greater significance with someone who is likely to have a hoarding disorder herself. There is no doubting the importance to her of her relationship with GC, nor her strong desire to become reunited with her pet cat, Jasper. It is these issues which are of magnetic importance in this case, when I bear in mind, she has lived in her home for 40 years, that she is now 92 with straightforward care needs and a limited life expectancy.’ (para 34)
Case law on best interests
The case law on best interests (s.4 MCA) guiding this decision is in Appendix 3 of the judgment. It covers the following areas:
- Approach to person’s wishes and feelings, beliefs and values: Aintree University Hospitals NHS Foundation Trust v James and others  UKSC 67; Wye Valley NHS Trust v Mr B  EWCOP 60; ITW v Z, M & Various Charities  EWHC 2525 (Fam).
- Managing risk: Re MM (An Adult)  EWHC 2003 (Fam).
- Court’s role in managing risk: Re M (Best Interests: Deprivation of Liberty)  EWCOP 3456.
- Importance of home (and use of trial periods, and significance of being near end of life): Re GC  EWHC 3402 (Fam); Westminster City Council v Manuela Sykes  EWCOP B9; P v M (Vulnerable Adult)  2 F.L.R. 1375.
- Best interests and UN CRPD Art 19 (Living independently and being included in the community): Re NP  EWCOP 44.
- Best interests and the least restrictive principle: UF v X County Council & Others (No 2)  EWCOP 18.
- Best interests and Article 8 ECHR (Right to respect for private and family life): K v LBX and Others  EWCA Civ 79.
Stephen Martineau is a researcher at the NIHR Policy Research Unit in Health and Social Care Workforce at King’s College London.
We are holding an online seminar engaging legal and psychological perspectives on hoarding behaviour: Mon 28 Nov 2022, 10am-11.30am.
5 December 2022 Hoarding disorder, dementia and a wish to return home by Celia Kitzinger (Open Justice Court of Protection Project). This is a report of another Court of Protection case involving hoarding behaviour.
Studies at the NIHR Policy Research Unit in Health and Social Care Workforce (both funded by the NIHR School for Social Care Research):
- Social care responses to self-neglect and hoarding among older people: What works in practice? (2020 – 2022)
- Decluttering the homes of people with hoarding behaviours: Local authority commissioning, professional practices, and user experiences (2022 – 2023)
(3 November 2022: The decluttering study is looking for interview participants – see the project page above.)
This blog post forms part of independent research funded by the National Institute for Health and Care Research (NIHR) School for Social Care Research (NIHR SSCR). The views expressed are those of the author and not necessarily those of the NIHR SSCR, NIHR or Department of Health and Social Care.