Elderly couple forced to go to court over council holiday ban

Published On May 25, 2011 | By Children Screaming To Be Heard |

Many people are not aware of the powers of the social services in the UK, Social services have control of our children the young the elderly the infirmed prisoners hospitals, you name, it social services are there and in control, as here in yet another case, and yes more money for the court system. Elderly couple forced to go to court over council holiday ban An elderly couple were forced to take a council to court after social services claimed it was too risky for them to go on holiday together.

Norman Davies and Peggy Ross were looking forward to embarking on their annual cruise trip when Cardiff Council used mental health laws to stop her leaving her care home. Just days before they were due to depart, the local authority asked a court to agree that it was not in the “best interests” of Mrs Ross, who has dementia, to board the ship. However a judge refused to make the order and the couple enjoyed a 16-day cruise around the Mediterranean. Lawyers say the case illustrates how authorities are trying to use the Court of Protection, which has far-reaching powers over the financial affairs and welfare of people deemed to lack mental capacity, to control every aspect of people’s private lives. Previous cases have seen councils and health bodies try to prevent a man having sex, and force a woman with a low IQ to take contraception.

Mr Davies, a former engineer who lives near Newport, told The Daily Telegraph: “They stripped Peggy of her rights completely. The whole thing was disgusting from start to finish.” The court heard that Mr Davies, 81, and Mrs Ross, 82, have been together for about 20 years and in that time have enjoyed “numerous cruise holidays”. She had begun to suffer memory loss and was admitted to a council-run care home in Cardiff last July, after he had to go to hospital because of a foot problem. Her social worker said she was “found to lack capacity to make a decision” about whether or not she should go on the £3,200 holiday, which was booked for the end of October, because her “ideas/beliefs are not based in reality”. It was feared that Mrs Ross, who before retirement used to work in a care home herself, might “wander off” on the ship or fall overboard. In October, aware that the couple were determined to take their holiday, the council obtained a Deprivation of Liberty Safeguard authorisation to prevent Mrs Ross leaving the care home. It then applied to the Court of Protection for a declaration that she lacked capacity to make decisions. Mr Davies had to instruct a solicitor at short notice to challenge the order, and a hearing took place at Cardiff Regional Court on the Friday before the Monday on which they were due to sail off from Southampton.

Judge Crispin Masterman said that even if others believed Mrs Ross’s decision to go on the holiday was “unwise”, that does not show she was unable to make it. He conceded that the social worker and care home staff had her safety in mind, but were more concerned with “trying to find reasons why Mrs Ross should not go on this holiday rather than finding reasons why she should”. The judge concluded that she did have capacity to make the decision and that it was in her best interests to go on the cruise, saying: “This [the council’s application] smacked of saying that her best interests were best served by taking every precaution to avoid any possible danger, without carrying out the balancing exercise of considering the benefit to Mrs Ross of what, sadly, may be her last opportunity to enjoy such a holiday with Mr Davies.”

The couple were able to take their cruise and Mr Davies said he and Mrs Ross “thoroughly enjoyed it”, particularly as it meant she was more mentally active than she would have been in if she had just stayed in her care home. Mr Davies’s lawyer, Floyd Porter of Miles & Partners, said: “This decision highlights the importance of the Court of Protection in making important yet urgent decisions which affect ordinary individuals throughout the country. “Individuals can be subject to arbitrary and over-cautious decisions by public authorities on a daily basis and without the prompt action by Mr Davies and the Court’s timely intervention, Mrs Ross would have been unfairly penalised. “Over-cautious decisions which are so prevalent in the risk-averse culture of modern life need to be tempered with common sense and the Court, whilst often subject to criticism, in this case applied much needed common sense and in my opinion should be applauded.”

The case has been highlighted in the latest Court of Protection newsletter published by 39 Essex Street chambers, which says it “provides another example of a tendency among local authorities to focus on risk-prevention at the expense of emotional wellbeing”.
A Cardiff Council spokesman said: “The council has always had Mrs Ross’s best interests at heart and we worked with her to find an alternative holiday where we could be confident that the required level of care which she requires on a daily basis could be provided.
“We fully consulted with independent medical professionals and the staff at the care home where she lives, when considering Mrs Ross’s wishes, and they all supported the Council’s course of action as they too had expressed concerns about the trip.
“The council submitted an application to the Court of Protection in relation to this matter as it is a specialist court for all issues relating to people who lack capacity to make specific decisions. We approached them for a ruling on this matter and fully respected the court’s decision. In his judgement the judge was in no way critical of the council and acknowledged the risks which concerned the council. We continue to offer Mrs Ross any support she may need.”

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Martin Beckford, Social Affairs Editor – Daily Telegraph

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