Mr Pitterway QC's decision

Here is the judge who made the decision - he now shares responsibility about what happens to mum

The hearing took place in a basement court which was not very clean - a speaking was hanging off in one of the corners of the court near the ceiling. It felt like basement justice!

Yvonne Hossack – Solicitor for the Claimant

Note of Judgment – Hearing on the 23^rd November 2011

Before Mr. Pitterway QC, sitting as a Deputy High Court

This is an application by Mrs Waylor by her litigation friend and son to:

1. Return to Bowles Lodge

2. Direct Kent County Council to take no steps to close Bowles lodge

This is an application for interim relief in an action for negligence. The background is in the Witness Statement of Yvonne Hossack. 90 year old resident at Bowles Lodge until the 21^st October 2011 when she was admitted to hospital by her GP.

Bowles Lodge is due to be closed on the 24^th November 2011. Presently there is one resident there who is 102 and going to New Zealand tomorrow.

Exhibited to Mrs Hossacks Witness Statement is an Individual Needs Portrayal and a report from a consultant geriatrician Dr Smithard. The Particulars of Claim attach a report from Dr Fox dated July 2011 and I have also read a copy of the Defence. I have been referred to the case of Trim paragraphs 21-26. I have been referred to paragraphs 8 and 10 of the Health and Social Care Act and also to the regulations.

Mr Hutchings submits that the Claimant is entitled to Interim Judgment. He relies on Dr Fox’s expectation of life expectancy and proper package before removal and to Dr Smithard’s report which to a certain extent supersedes Dr Fox’s.

Dr Smithard’s Report [reads] "... none require health funding, memory loss is not EMI but may be a factor in need for nursing. Return to Bowles Lodge... from purely medical viewpoints... could be met by present carers, best to Bowles Lodge, if not dual registered. Finding replacement home undefined period of time, not unreasonable.”

Mr Hutchings suggest blocking- summary paragraphs 38-40. In Summary he says as of 6/10/11 24 hour residential two people zimmer [etc reads]. 20/10/11 added two carers washed and hoist, breathlessness. Only 4 residents. 2 carers to 4 higher than if operating with large number of residents.... 26/10/11 additional information from hospital, nursing, page 40 24 hour care nursing multi disciplinary team at hospital all in agreement.

Mr Hutchings relies on a phone conversation and Mrs Bates state in effect doesn’t need nursing care. Finally it is Mrs Waylor’s own wish to return.

He says there are two limbs and the second limb is ambitious. I detect from his submissions that he accepts the claim contains elements of public law.

For the Defendant Mr Bourne says that if Nursing care is required it cannot be provided at Bowles Lodge. He claims abuse of process, collateral damage to a care home closure, lengthy period of consultation letter before claim February 2011 JR would fail because of delay. In my judgment Mrs Waylor has failed to show a good arguable case.

First limb – assessment clear now requires nursing care Dr Smithard at best gives lukewarm support. The assessment in October was a multi disciplinary. If correct, fact not registered nursing care, no realistic prospect of success.

Clearly Public Law. Should have been Judicial Review not negligence. LBC refers to lack of success JR.

If I am wrong in either of the above, I am not convinced on balance of convenience... now requires medical care, social isolation. Two moves not one move likely to affect health and life expectancy.

It is important that the Defendants willingness to find a suitable nursing home is important. It is to be hoped that Mrs Waylor’s’ family and the Defendant will work together.

Application dismissed.