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Defying the Court of Protection – is there such a thing as committal in Court of Protection?

 

 

MSAM v MMAM 2015 is a Court of Protection case tackling something for the first time.

 

In this case

 

http://www.bailii.org/ew/cases/EWCOP/2015/3.html

 

Mrs MMAM is 76. Her health deteriorated and she was living in parlous conditions at home. Following assessments, it was felt that she lacked capacity to make decisions for herself and was unable to remain in her own home.

 

The Court of Protection considered the case and made the following declarations on 20th February 2014 :-

 

“It is hereby declared pursuant to S.48 of the Mental Capacity Act 2005 that: it is lawful and in the First Respondents best interest to continue to reside and receive care at X residential home and any deprivation of her liberty occasioned by residing there is approved by the Court pursuant to S.4 A16 of the Mental Capacity Act 2005.”

 

 

On 1st April 2014, MMAM’s grandson attended the X residential home and removed her from that home, the manager of the home believing that he had no legal authority to prevent this.

 

 

It is important to note that she was then removed to Saudi Arabia, and also important to note that MMAM’s son (MSAM) had been a party to the Court of Protection proceedings and had not been challenging the plan at that hearing.

 

 

On the 1st April 2014 Mrs MMAM left the jurisdiction. I have been told she is currently residing in Saudi Arabia. On the morning 1st April the Second Respondent (Grandson) took Mrs MMAM from the X road residential home. He did so with the compliance of the manager who believed that he had no legal basis to prevent such a course. He was apparently told that Mrs MMAM was going with her grandson to the Saudi Arabian Embassy. She was taken there and her travel documents were provided which appeared to have enabled her to be booked on the very next available flight from London to Jeddah which left that evening. The grandson purports to outline the events of that day in his statement dated the 13th May. I say without hesitation that I found his account to be self serving and disingenuous. The description of what is said to be Mrs MMAM’s behaviour on that day bears absolutely no relationship to anything I have read about her in any other document. At paragraph 8 the grandson states

 

“We took a taxi to the Embassy arriving just before 10am, my grandmother, without entering security, had found the way to the meeting ahead of me. Once I had introduced her, I left her to discuss her affairs as I had understood from my father I should not participate in discussing the case with officials and her in any detail. A few hours went by, I was summoned and asked to accompany my grandmother to a place where food was given to her and then we were taken to a rest facility. Little later someone from the embassy came to take her and I was told to return home and that they would contact me as required.”

If that was indeed in any way accurate and Mrs MMAM had been left on her own at the Embassy, in my view, she would have been, on the basis of everything I have read, confused and probably rather frightened. The statement is entirely unconvincing. In the paragraphs that follow any aspiration to credibility is lost, if not abandoned.

 

“That night the manager from X road called me regarding my grandmother, I said she must still be with the embassy staff if she wasn’t back at X road. Someone from the Local Authority also contacted me, he asked me whether I felt she was safe or not? I told them I believe she was and would contact them if I heard anything. I then received a call to let me know that my grandmother was safe, ‘not to worry’ and I relayed the message to staff…. the next day I heard news that my grandmother was in Saudi Arabia.”

Later he states:

 

“The manner and speed of her repatriation has taken me by surprise. I do not want to speculate on the matter but I’m aware the situation has pleased my grandmother and family. Perhaps with the benefit of hindsight, the time constrained medical condition made the embassy action inevitable; though I do not believe any of the people aware of my grandmother’s appointment with the embassy expected it and I certainly did not.

‘I would like to thank the court for its measured consideration and on behalf of both myself and my grandmother I want to express our gratitude to Judge Batton, the staff of X Road and the doctors. I am eternally grateful to found, in all of them, definitely the living personification of the oath undertaken by each of them.”

The picture presented is a complete fabrication. This old, sick, largely incapacitous lady further burdened by an ‘abnormal belief system’ would simply not have been able to function effectively or autonomously in the way the grandson asserts. It is clear from the above passages that the grandson was acting entirely on his father’s instructions. That is the dynamic of their relationship which I have observed for myself in the courtroom at previous hearings. The reference to “the time constrained medical condition” sadly relates to the fact that Mrs MMAM is suffering from metastasised bowel cancer. The statement requires recasting in reality. Mr MASM and his son have plainly colluded to defeat the declaration made by this court. Mr MASM has done so notwithstanding that he acquiesced to the declaration made and drafted in the terms that it was. He was the applicant in this litigation. In my judgement he has acted with cynical disregard to the objectives of this process and, in the light of the declarations drawn, it must follow that his actions are entirely inconsistent with the best interests of this vulnerable and incapacitous woman, who is of course his own mother. The reasons for this planned deception are not immediately clear, but I draw from this history and from the actions of these two men that their motivation is likely family’s financial self-interest. It seems to me that if Mr MASM had genuinely believed that his mother’s interest did not lie in her remaining in the residential unit for the reasons Dr Arnold said then he had every opportunity to put those conclusions to the assay by cross examination. He chose not to do so despite being represented by counsel.

 

 

The legal question then arose :-

 

  1. Was this action a breach of the Court of Protection’s declaration and authorisation of Deprivation of Liberty?
  2. And if so, what are the sanctions for such a breach

 

 

Within the law relating to children, these sort of actions have been going on for a long time, and it is settled law that a breach of a Court order can lead to an application for committal for contempt of court, and to imprisonment if the breach can be proved to the criminal standard of proof. But this is new to Court of Protection cases.

 

Though this case raises important issues of law and practice it must be emphasised that conduct of the kind seen here is rare, indeed in my experience it is unprecedented. Many of the litigants who come before the Court of Protection are at a time of acute distress in their lives, as a cursory glance at the case law of this still fledgling court will show. The issues could not be more challenging, not infrequently they quite literally involve decisions relating to life and death. Inevitably, some litigants do not achieve their objectives neither wholly nor in part but they respect the process. More than once I have observed that the importance to a family of being heard in decisions of this magnitude matters almost as much as the outcome itself. Sometimes the medical and ethical issues raised are such that NHS Trusts seek the authorisation of the court to endorse or reject a particular course of action. The court ultimately gives its conclusion by declaration both in relation to lawfulness and best interests. The terms of these declarations often cannot and indeed should not seek to be too prescriptive.

 

Keehan J reviewed the powers of the Court of Protection to enforce its orders (and note the criticisms of the LA for its ‘supine’ response)

 

The Court of Protection’s powers of enforcement are extensive. The Court has in connection with its jurisdiction the same powers, rights and privileges and authority as the High Court (COPR 2007, R89) which means that it may find or commit to prison for contempt, grant injunctions where appropriate, summons witnesses when needed and order the production of evidence. (COPR 2007, part 21 makes further provision RR183-194). The relevant practice directions (PD21A) and “practice guidance notes” deal with Contempt of Court, Applications for enforcement may also be made; the CPR relating to third party debt orders and charging orders are applied as are the remaining rules of the Supreme Court 1965 in relation to enforcement of judgments and orders and writs of execution fieri facias (writs and warrants of control, post April 2014) All this said the Court of Protection jurisdiction is limited to the promotion of ‘the purposes of’ (my emphasis) the Mental Capacity Act 2005 (MCA) and, it follows, the appropriate order may be, from time to time, to direct the Deputy or some other person to take proceedings of a different kind in another court where the objectives fall outside the remit of the MCA.

 

Finally, of course, the court may direct penal notices to be attached to any order, warning the person of the consequences of disobedience to the order i.e. that it would be a contempt of court punishable by imprisonment and or a fine (or where relevant sequestration of assets). An application for committal of a person for contempt can be made to any judge of the Court of Protection by issuing an Application Notice stating the grounds of the application supported by affidavit in accordance with practice directions. (COPR 2007 makes additional provisions). In addition to this the court may make an order for committal on its own initiative against a person guilty of contempt of court which may include misbehaviour in the face of the court.

 

Initially the Local Authority considered that it had been comprehensively thwarted by Mr MASM’s unilateral actions. In a response which I considered to be supine, they advance no opposition to Mr MASM’s application to withdraw the proceedings. I was roundly critical of that reaction. Mrs MMAM had been rescued from squalor and neglect. I have been shown photographs of her previous living conditions. Her grandson, the man who negotiated what he calls her “repatriation” was living in the same house as his grandmother whilst her circumstances had reduced to the parlous conditions that I have described. In addition, Mrs MMAM lacked capacity in relation to medical, welfare and litigation decisions. Moreover she was in addition gravely ill physically. Local Authority’s simply have to absorb the extent of their responsibilities in these challenging cases. Vulnerable adults must be protected every bit as sedulously as vulnerable children. I emphasise that it is the safeguarding obligation that is similar- I do not suggest that vulnerable adults and children should be regarded as the same. Accordingly, I asked the Local Authority, the Official Solicitor and Mr MASM to reflect on the questions identified in paragraph 13 above.

I

 

 

Rather interestingly, both the LA and the family were submitting to the Court that the Court of Protection’s power in terms of making a declaration of best interests was a narrow one, limited to making a declaration of what was in MMAM’s best interests and not to making a prohibitive order.

 

If the declaration of interests was looked at in that way, the Court had not, and could not, make an order that prohibited the family removing MMAM and thus there was no order that could amount to a contempt of Court or a committal for contempt.

 

The Official Solicitor took a different view (and placed reliance on amongst others, a case called Long Wellesley, involving wardship and an MP removing his daughter from wardship without permission)

 

The Official Solicitor distils from these authorities the following propositions, namely that where:

 

  1. i) an application was issued in the Court of Protection specifically seeking the Court’s permission to remove P from the jurisdiction;

 

  1. ii) the court was seized of the matter;

 

iii) the court declared on an interim basis that it is in P’s best interests to live at a certain address within the jurisdiction;

 

  1. iv) it follows that a party, with knowledge of the application and court’s orders would commit a contempt of court by removing or organising for the removal of P from the jurisdiction without the court’s permission.

 

It is contended that this amounts to a contempt of court, even when no injunctive order has been made. In essence the argument is:

 

  1. i) the principles of wardship and parens patriae should apply to the Court of Protection, given the supervisory and protective nature of the Court of Protection’s jurisdiction, and P should be protected as would a ward of court and/or because;

 

  1. ii) such a person would be deliberately treating the declaratory order of the court as unworthy of notice.

 

 

 

So, the question is :- is a declaration of best interests something that if a person knows of it and thwarts it, a contempt of Court? Or is that only the case if the Court has the power to, and decides to, make an order that is prohibitive in nature and clear on the face of the order what a breach would be and what the consequences of breach might be.

 

That is, the difference between an order that says:-

 

It is in MMAM’s best interests to live at 22 Tupperware Court, Ker-Plunk

 

And

 

It is in MMAM’s best interests to live at 22 Tupperware Court, Ker-Plunk and her son and grandson shall not remove her from that property nor instruct others to do so. [and when sent to her son and grandson, the order also says “you must obey this order. If you do not, you may be sent to prison for contempt of court”]

 

You don’t often have cases in family law (or Court of Protection) where the litigation about the Spycatcher book is important, but in this one, it was an important part of the judicial reasoning as to what the status of a declaration of best interests was.

 

[It is a fascinating analysis, but beyond the scope of this piece – if you are interested in the fine detail, the judgment is well worth reading]

 

 

Drawing the strands of the case law, the legal framework and the agreed facts together, the following points emerge:-

 

  1. i) The Court made clear personal welfare decisions on behalf of an incapacitated woman which every party agreed to be in her best interests;

 

  1. ii) Breach of Court Orders even in the absence of a Penal Notice may nonetheless potentially be a contempt where there is a wanton disregard for the court’s decision;

 

iii) Some case law also suggests that in the exercise of the parens patriae any action hampering the objectives of the court is an interference with the administration of justice and therefore a criminal contempt see RE B(JA) (an infant) 1965 CH1112 at P1117:

 

‘any action which tends to hamper the court in carrying out its duty [to protects it’s ward] is an interference with the administration of justice and a criminal contempt’

 

 

If that third point applied to vulnerable adults, then a contempt of court could arise in circumstances where a person just hampered or interfered with the best interests decision, rather than in circumstances of the second point (wanton disregard for the Court’s decision)

 

The Official Solicitor was arguing in relation to that third point that in terms of safeguarding vulnerable adults and safeguarding children, the same principles applied in full. Keehan J was more guarded

 

 

Addressing the Official Solicitor’s argument in relation to actions hampering the exercise of the parens patriae I do not consider that the jurisdiction I am exercising here equates seamlessly with the exercise of the parens patriae or wardship jurisdiction in relation to children. Nor do I consider that Munby J intended to go so far in Re SA (supra). Whilst both jurisdictions require there to be a sedulous protection of the vulnerable, there is a paternalistic quality to wardship which does not easily equate to and is perhaps even inconsistent with the protection of the incapacitous adult, in respect of whom capacity will or may vary from day to day or on issue to issue. There is in addition, the obligation to promote a return to capacity wherever possible. The Court of Protection has a protective and supervisory role but wardship goes much further, it invests the judge with ultimate responsibility. The child becomes the judge’s ward. There is no parallel in the Court of Protection and it would be wrong, in my view, to rely on this now dated and limited case law (identified by Mr McKendrick) to permit this Court to reach for a power which is not specifically provided for in the comprehensive legislative framework of the Mental Capacity Act 2005.

 

The law in relation to children has also moved on from the landscape surveyed by Lord Atkinson in Scott v Scott [1913] AC 417, particularly since the inception of the Children Act 1989, drafted of course, with ECHR compatibility in mind. Lord Atkinson’s description of a ‘paternal and quasi domestic jurisdiction over the person and property of the wards’ has little resonance for practitioners for whom ‘family life’, protected under Article 8 of the ECHR, is evaluated by analysing competing rights and interests, where the autonomy of the child is also afforded great respect. Unsurprisingly and partly in response to the range of these principles the scope and ambit of wardship has reduced very considerably (Section 100 Children Act 1989 repealed Section 7 of the Family Law Reform Act 1969, the route by which the High Court had derived its power to place a ward of court in the care, or under the supervision of a Local Authority). Whilst Mr McKendrick is entirely right to draw this line of authority to my attention, the position in relation to wardship is, to my mind, largely anomalous, predicated as it is on the somewhat artificial premise that the court represents the Sovereign as parens patriae and cannot therefore be resolving contested issues as between the parties in an non adversarial arena (see Arlidge, Eady and Smith on contempt (4 edition) (Para 11-338). Mr McKendrick put much emphasis on the judgment of Munby J in Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC 2942 (Fam), [2006] 1 FLR 867, para 84. In particular he referred me to par 84:

 

“As I have said, the court exercises what is, in substance and reality, a jurisdiction in relation to incompetent adults which is for all practical purposes indistinguishable from its well-established jurisdiction in relation to children. There is little, if any, practical difference between the types of orders that can be made in exercise of the two jurisdictions.”

It is important to emphasise that Munby J whilst emphasising the similarity of the two jurisdictions ‘for all practical purposes’ also notes the essentially different, indeed unique, nature of the wardship jurisdiction, later in the same paragraph:

 

“The main difference is that the court cannot make an adult a ward of court. So the particular status which wardship automatically confers on a child who is a ward of court – for example, the fact that a ward of court cannot marry or leave the jurisdiction without the consent of the court – has no parallel in the case of the adult jurisdiction. In the absence of express orders, the attributes or incidents of wardship do not attach to an adult.”

 

 

Keehan J decided that ultimately, the third point did not apply to vulnerable adults, and that despite the family’s conduct being entirely inimical to MMAM’s welfare and wellbeing, what was needed for a contempt and a committal remedy in Court of Protection cases was an order drawn in a prohibitive way with a penal notice. Keehan J decided that the Court of Protection had powers under s16 Mental Capacity Act 2005 to make such orders arising from their declaration of best interests

 

 

Ultimately, a declaration of best interests connotes the superlative or extreme quality of welfare options. It by no means follows automatically that an alternative course of action to that determined in the Declaration, is contrary to an individual’s welfare. There may, in simple terms, be a ‘second best’ option. For this reason, such a declaration cannot be of the same complexion as a Court Order. It lacks both the necessary clarity and fails to carry any element of mandatory imperative. I am ultimately not prepared to go as far as Mr McKendrick urges me to and elevate the remit of the Court of Protection, in its welfare decision making, to such a level that anything hampering the court in the exercise of its duty, or perpetrated in wanton defiance of its objectives is capable, without more, of being an interference with the administration of justice and therefore criminal contempt. Such an approach would it seems to me be entirely out of step with the development of our understanding of the importance of proper and fair process where the liberty of the individual is concerned. I would add that this has long been foreshadowed by the recognition that the necessary standard of proof in a application to commit is the criminal standard.

 

 

Moreover, though my order of 20th February 2015 was expressed to have been made pursuant to section 16, it was drafted in declaratory terms. As such, for the reasons I have set out above, it cannot, in my judgement, trigger contempt proceedings. There cannot be ‘defiance’ of a ‘declaration’ nor can there be an ‘enforcement’ of one. A declaration is ultimately no more than a formal, explicit statement or announcement. That said I emphasise that Mr MASM, in fact acted, through the agency of his son, in a way which was cynically contrary to his mother’s best interests. The course he took was not a ‘second best’ option but one entirely inimical to his mother’s welfare, physically, mentally and emotionally. He has frustrated the objectives of the litigation but he is not, as I ultimately find, acting in defiance of an order and therefore is not exposed to contempt proceedings.

 

 

 

As a result, there was no legal power, from the orders that were in placed, to lodge a committal notice or to commit the family to prison for their actions. All that Keehan J could do was to criticise them for their actions and order that they pay the costs of this hearing (which were probably considerable, given the amount of legal research that was needed – once people get into reading Spycatcher and 1831 cases about dubious MPs http://hansard.millbanksystems.com/lords/1831/jul/19/privilege-case-of-mr-long-wellesley not to mention the entire law of contempt, wardship and penal notices, the costs do mount up)

 

He also suggested that the LA should probably think very hard about whether it was sensible for the son to remain MMAM’s deputy with powers over her financial affairs.

 

As for more general guidance

 

 

Such guidance as I can give can only be limited:

 

  1. i) Many orders pursuant to Section 16 seem to me to be perfectly capable of being drafted in clear unequivocal and even, where appropriate, prescriptive language. This Section provides for the ‘making of orders’ as well as ‘taking decisions’ in relation to P’s personal welfare, property or affairs. Where the issues are highly specific or indeed capable of being drafted succinctly as an order they should be so, rather than as more nebulous declarations. Where a determination of the court is capable of being expressed with clarity there are many and obvious reasons why it should be so;

 

  1. ii) In cases which require that P, for whatever reason, reside at a particular place the parties and the court should always consider whether to reinforce that order, under Section 16, by a declaration, pursuant to Section 15, clarifying that it will be unlawful to remove P or to permit or facilitate removal other than by order of the court;

 

iii) In cases where the evidence suggests there may be potential for a party to disobey the order or frustrate the plans for P approved by the court as in his best interest, the Official Solicitor or Local Authority should consider inviting the court to seek undertakings from the relevant party. If there is a refusal to give undertakings then orders may be appropriate;

 

  1. iv) Where a potential breach is identified the Local Authority and/or the Official Solicitor should regard it as professional duty to bring the matter to the immediate attention to the court. This obligation is a facet of the requirement to act sedulously in the protection of the vulnerable;

 

  1. v) Thought must always be given to the objectives and proportionality of any committal proceedings see Re Whiting (supra).

Capacity to consent to sex – do you want a Hanc or a Hunc?

Mostyn J has just given a ruling in the Court of Protection  – London Borough of Tower Hamlets and TB 2014

http://www.bailii.org/ew/cases/EWCOP/2014/53.html

Within this case, Mostyn does two significant things.

 

The first is that he refines his own test for capacity to consent to sexual intercourse, and is much persuaded by Hedley J’s formulation.

Regular readers will be aware that the Court of Protection’s usual approach to capacity to consent to sexual intercourse is to look at three issues :-

 

(a) Understanding of the mechanics

(b) Understanding of the health risks

(c) Understanding of the risk of pregnancy.

 

Mostyn J says that he has changed his mind as to whether that is the right test

Although I am not going so far as figuratively to hold my hand in the flames like Cranmer I have had cause to reconsider my previous opinion.

 

Before Mostyn J, legal argument took place that bears some resemblance to that discussion in Gremlins 2 about whether a Mogwai is fed after midnight if he is on a plane crossing the international date line…

  1. I deal first with the pregnancy element. In A Local Authority v TZ [2013] EWCOP 2322 Baker J concluded at para 31 that in the case of a person clearly established to be homosexual it is ordinarily unnecessary to establish that he or she has an understanding or awareness that sexual activity between a man and a woman may result in pregnancy. In this case Mr McKendrick argues that because TB has had an IUD inserted she is in an equivalent position. The argument became increasingly far-fetched. We discussed a man who has had a vasectomy. A woman who is beyond childbearing. A man wearing a condom. Mr McGuire QC rightly captured the unreality of this debate in his final submissions when he said:

    “But following this link produces nonsensical results. What if a woman happens to have fertility issues? Or is already pregnant? Or is beyond childbearing age? Would knowledge of this link be irrelevant for a man? “

 

And as a result, Mostyn J decided that it would be best for the third part of the test to simply form part of the second part (health issues)

I have come to the conclusion that the third element of risk of pregnancy should not be a separate one. Rather it should be subsumed into the second which should simply be expressed as: “that there are health risks involved”. All sexual activity has some health risks. The most obvious ones are pregnancy or STDs. But over-robust sexual activity can cause wounding or bruising, external or internal. Any sexual activity can cause psychological harm. A simple criterion as I have suggested would resolve the dilemma I expressed in para 43 of D Borough Council v AB [2011] EWCOP 101, which on reflection came perilously close to introducing a quoad hanc dimension when I had been at pains to repudiate that.

 

If you are wondering what quoad hanc means   [i.e you are not my regular commentor Andrew, or David Burrows] it raises its head in this judgment here, where Mostyn J raises a complaint that a formulation is unnecessarily overcomplicated and goes on to explain it in Latin.   (I am biting my tongue here)

The first thing that the cases have decided is that the test for capacity to consent to sexual relationships is, to use rather laboured language, general and issue specific, rather than person or event specific: see IM v LM [2014] EWCA Civ 37 at para 79. In canonical language the incapacity must be quoad hunc not quoad hanc, in contrast to the position under section 12(a) Matrimonial Causes Act 1973 where the incapacity to consummate may be on either basis[2].

Quoad Hanc is where someone is not able to have sex with a particular individual, and Quoad Hunc is where they are not able to have sex with anyone.  i.e the difference between not being able to have sex with Hank (perhaps because he has body odour) and not being able to have sex even with a hunk (because you just can’t have sex with anyone)

 

[I am sure Andrew and David will be able to put it better than I have]

Having digressed a bit, is the capacity to consent to sexual intercourse test now just

(a) Understanding of the mechanics, and

(b) Understanding of the health risks  ?

 

Well, not so fast there Hank.

Mostyn J reminds himself and us that he had previously been asked to consider whether the understanding of the ability to say “yes” or “no” to sex should be a factor, and had rejected this. He has now changed his mind, and gives credit to Hedley J in relation to this

  1. I now turn to the question whether the relevant information should include as a separate element an awareness that lawful sex requires the consent of all parties and that that consent can be withdrawn at any time. In my previous decision of D Borough Council v AB I accepted at para 35 that I should not conflate the capacity to consent to sex and the exercise of that capacity. Therefore I rejected Dr Hall’s third head of capacity.
  2. In this case the OS agrees that being able to say yes or no to sexual relations is part of the weighing process under section 3(1)(c), and that this is made explicit by the terms of section 3(4)(a). Notwithstanding this concession Ms Greaney disputes that it should be an independent head of awareness because to do so would conflate capacity with the necessary exercise of free will. She argues that consent is the product of capacity and the exercise of free will.
  3. However, in A Local Authority v H [2012] EWHC 49 (COP) Hedley J with his customary erudition, sensitivity, lucidity and eloquence convincingly persuades me that I was wrong then, and that the OS is wrong now. At para 25 he said this:

    “And so one turns to the emotional component. It remains in my view an important, some might argue the most important, component; certainly it is the source of the greatest damage when sexual relations are abused. The act of intercourse is often understood as having an element of self-giving qualitatively different from any other human contact. Nevertheless, the challenge remains: can it be articulated into a workable test? Again I have thought long and hard about this and acknowledge the difficulty inherent in the task. In my judgment one can do no more than this: does the person whose capacity is in question understand that they do have a choice and that they can refuse? That seems to me an important aspect of capacity and is as far as it is really possible to go over and above an understanding of the physical component. “

  4. In my judgment this simply cannot be gainsaid. It was accepted by everyone in this case that sex between humans must involve more than mere animalistic coupling. It is psychologically a big deal, to use the vernacular. Hedley J’s formulation captures perfectly why and how that extra ingredient should be defined.
  5. Therefore I conclude that when determining the question of sexual capacity under the MCA the relevant information as referred to in section 3(1)(a) comprises an awareness of the following elements on the part of P:

    i) the mechanics of the act; and

    ii) that there are health risks involved; and

    iii) that he or she has a choice and can refuse.

    I would add that the excellent witness Dr Joyce was of the firm view that this third element was very important. I would also suggest, with all due humility, that the test as formulated by me has the merit of simplicity.

I have to say that for my part, I prefer this revised three part test.  I did have to quickly check whether it clashes with the Court of Appeal in Re IM v LM 2014 and I don’t believe that it does. So this is now the new test to be used.

 

[In the instant case, the woman understood the mechanics, understood that she enjoyed sex but did not understand that she could say no. Her husband for religious reasons believed that it was her duty to have sex with him on request – her general level of functioning was that of an 8 year old. Mostyn J held that she did not have capacity to consent to sex on the basis that she had no understanding of her ability to say no]

 

The second issue of import in the judgment was that there was a Deprivation of Liberty Element – this woman wanted to go back to her husband and was being prevented from doing so. In part because he intended to have sex with her about twice a week and she lacked capacity to consent.

That allowed Mostyn J to revisit his decision in Rotherham. And if you think that he has softened on that, as he has changed his mind on the capacity test, you are wrong.

  1. My decision of Rochdale Metropolitan Borough Council v KW [2014] EWCOP 45 has aroused a certain amount of criticism. For example, Sarah Lambert, the head of policy for the National Autistic Society has stated that:

    “This decision appears to directly contravene the Supreme Court’s ruling that liberty must mean the same for all, regardless of disability.

    Any move to revisit or unpick this definition would be a huge step back. NAS is deeply concerned that this decision will create avoidable confusion and uncertainty among health and social care professionals, potentially undermining essential protections for people with autism.”

  2. The appeal in Rochdale Metropolitan Borough Council v KW will be heard by the Court of Appeal on 4 or 5 February 2015.
  3. If nothing else, I think it is important that I meet the criticism that I have sought to encroach on essential protections for disabled people, and amplify my reasoning.
  4. In para 17 of my decision I said this:

    “It is clear that the driving theme of the majority opinions is a denunciation of any form of discrimination against the disabled. With that sentiment I naturally wholeheartedly agree. Discrimination is found where like cases are not treated alike. However, when making Lord Kerr’s comparison you do not have two like cases. You are comparing, on the one hand, a case where an 18 year old does not need protection and, on the other, a case where the 18 year old does. They are fundamentally dissimilar. The dissimilarity justifies differential treatment in the nature of protective measures. For me, it is simply impossible to see how such protective measures can linguistically be characterised as a “deprivation of liberty”. The protected person is, as Mill says, merely “in a state to require being taken care of by others, [and] must be protected against their own actions as well as against external injury”. And nothing more than that. In fact it seems to me to be an implementation of the right to security found in Article 5. “

  5. The suggestion that “the dissimilarity justifies differential treatment in the nature of protective measures” was not a personal idiosyncrasy. It is justified by high authority

Mostyn J goes on to set out those authorities, but I will pass over those – they are available in the judgment if you wish to see them.

57…The state is obliged to secure the human dignity of the disabled by recognising that “their situation is significantly different from that of the able-bodied”. Thus measures should be taken “to ameliorate and compensate for [those] disabilities.”

  1. But to characterise those measures as state detention is to my mind unreal. I referred to the historical context in which Article 5 of the ECHR 1950 came to be formulated. It followed the Universal Declaration of Human Rights of 10 December 1948 which in its preamble referred to “the disregard and contempt for human rights [which] have resulted in barbarous acts which have outraged the conscience of mankind”; which in article 3 guaranteed liberty; and which in article 9 proscribed “arbitrary arrest, detention or exile.” It was aimed at the midnight knock on the door; the sudden disappearance; the prolonged detention. Article 5 was not aimed at Katherine, seriously physically and mentally disabled, who is living in her own home and cared for round the clock by carers paid for by an organ of the state.
  2. In this case TB will not be cared for at a place which she understands to be her home. Further, she has the motor functions to achieve a departure in a meaningful sense. She will be monitored round the clock and were she to leave to try to go “home” she would be brought back. Her situation is therefore very different to Katherine’s, and the acid test is met. Although I personally cannot see that her situation amounts to state detention in any sense other than by reference to the term of art devised by the majority in the Supreme Court, I must loyally follow that decision. I therefore declare that TB’s care regime does involve detention under Article 5. Accordingly there must be at least six-monthly reviews by this Court, no doubt at some considerable expense to the public purse.
  3. At para 1 of my decision in Rochdale Metropolitan Borough Council v KW I referred to the very serious resource implications to local authorities and the state generally if periodical court reviews are required in such cases. Notwithstanding the arrival of the streamlined procedure recently promulgated by the Court of Protection Practice Direction 10AA there will still be tens if not hundreds of thousands of such cases and hundreds of thousands if not millions of documents to be processed. The streamlined procedure itself requires the deployment of much man and womanpower in order to identify, monitor and process the cases. Plainly all this will cost huge sums, sums which I would respectfully suggest are better spent on the front line rather than on lawyers

 

There’s some force in that – the Supreme Court have, in setting out the law, put many thousands of people in living circumstances which now amount to a breach of article 5, and the Court of Protection is going to be swamped with cases. Mostyn J has taken a pragmatic line, and we wait to see if the Court of Appeal think the same.  For my part, I think that the Supreme Court captured this point and the fact that on the ground it has enormous consequences for very many cases doesn’t detract from the principle.  The Supreme Court have explained what the test is, and the fact that it is going to have massive repercussions can only go so far.

 

Have we just given up on the notion of the Supreme Court being supreme?

 

After yesterday’s CM v Blackburn in which the Court of Appeal sidle up to the notion that the Supreme Court weren’t formulating new law in Re B, we now have the High Court in the form of Mostyn J just outright quibbling with their decision in Cheshire West.

 

In Rochdale v KW 2014 http://www.bailii.org/ew/cases/EWCOP/2014/45.html

 

Mostyn J was sitting in the Court of Protection and was faced with an application as to whether KW’s liberty was being deprived and if so ought the Court to sanction it.

  1. Katherine is aged 52. She is severely mentally incapacitated, to use the new language of the MCA; she is of “unsound mind” to use the old language of Article 5. She suffered brain damage while undergoing surgery to correct arteriovenous malformation in 1996[1], when aged only 34. This resulted in a subarachnoid haemorrhage and long term brain damage. She was left with cognitive and mental health problems, epilepsy and physical disability. She was discharged from hospital into a rehabilitation unit and thence to her own home, a bungalow in Middleton, with 24/7 support.
  2. In April 2013 Katherine was admitted to hospital. Her mental health had declined. In May 2013 she was transferred to a psychiatric ward, and later to another hospital. On 28 June 2013 she was discharged and transferred to a care home where she stayed until 14 April 2014, when she returned home. For appreciable periods between 28 June 2013 and 14 April 2014 Katherine’s confinement to the care home was not authorised under the terms of the MCA. On 26 June 2014 Katherine, acting by her litigation friend, made a claim for damages under Articles 5 and 8 of the Convention. On any view she had suffered an unlawful deprivation of liberty during those periods when her confinement was not authorised under the MCA. Her claim has been settled with modest compensation and a written apology. I approve the terms of the settlement.
  3. Physically, Katherine is just ambulant with the use of a wheeled Zimmer frame. Mentally, she is trapped in the past. She believes it is 1996 and that she is living at her old home with her three small children (who are now all adult). Her delusions are very powerful and she has a tendency to try to wander off in order to find her small children. Her present home is held under a tenancy from a Housing Association. The arrangement entails the presence of carers 24/7. They attend to her every need in an effort to make her life as normal as possible. If she tries to wander off she will be brought back. The weekly cost of the arrangement is £1,468.04. Of this £932.52 is paid by Rochdale and £535.52 by the local NHS Clinical Commissioning Group (“CCG”).

 

We have here therefore

(a) a person who lacks capacity

(b) a person who is being cared for by the State  (albeit in the setting of a foster ‘home’ rather than in residential care)

(c) a person who tries to leave that accommodation and when she tries is prevented from doing so, and if she gets out is brought back

 

On the basis of the Supreme Court’s ruling in Cheshire West, this appears to be a deprivation of liberty, but Mostyn J felt otherwise.

I find it impossible to conceive that the best interests arrangement for Katherine, in her own home, provided by an independent contractor, but devised and paid for by Rochdale and CCG, amounts to a deprivation of liberty within Article 5. If her family had money and had devised and paid for the very same arrangement this could not be a situation of deprivation of liberty. But because they are devised and paid for by organs of the state they are said so to be, and the whole panoply of authorisation and review required by Article 5 (and its explications) is brought into play. In my opinion this is arbitrary, arguably irrational, and a league away from the intentions of the framers of the Convention.

 

Mostyn J goes on to conduct a philosophical exercise on the nature of liberty  (I can highly recommend Alex Ruck’s blog on the judgment – he says everything that I wanted to say, and far more elegantly http://www.mentalcapacitylawandpolicy.org.uk/js-mill-strikes-back-mostyn-j-takes-on-the-supreme-court/)

 

It is plain that Mostyn J is aware that he is bound by Cheshire West, although making it plain that he doesn’t himself agree with the Supreme Court, but he attempts to distinguish the case (in ways that frankly, one might consider the Supreme Court had already ruled on), concluding that this particular issue needs to be looked at again by the Supreme Court and granting leave to appeal in order to facilitate that.

  1. The opinions of the majority are binding on me and I must loyally follow them even if I personally agree with the view of Parker J and the Court of Appeal in MIG and MEG; with the Court of Appeal in Cheshire West; and with the minority in the Supreme Court[2]. There is a similarity between this case and that of MIG inasmuch as both involve so called constraints on an incapacitated person living at home. In determining the factual question I cannot take into account the benign motives of Rochdale in providing the care arrangement or of Katherine’s contentment with it. Nor can I take into account the designed normality of the arrangement in Katherine’s own home.
  2. As I have shown, a key element of the objective test of confinement is whether the person is “free to leave”. This is part of the acid test. “Free to leave” does not just mean wandering out of the front door. It means “leaving in the sense of removing [herself] permanently in order to live where and with whom [she] chooses” (see JE v DE and Surrey County Council [2006] EWHC 3459 (Fam)[2007] 2 FLR 1150 per Munby J at para 115, implicitly approved in the Supreme Court at para 40). This is the required sense of the second part of the acid test.
  3. I do not find the test of the Strasbourg court in HL v United Kingdom 40 EHRR 761, at para 91, where it refers to the “concrete situation” of the protected person, as being of much assistance. The adjective “concrete” means that that I should look for an actual substance or thing rather than for an abstract quality. That is to state the obvious. Plainly, I will be looking only at Katherine’s actual personal circumstances and not at any abstractions.
  4. Katherine’s ambulatory functions are very poor and are deteriorating. Soon she may not have the motor skills to walk even with her frame. If she becomes house-bound or bed-ridden it must follow that her deprivation of liberty just dissolves. It is often said that one stress-tests a proposition with some more extreme facts. Imagine a man in hospital in a coma. Imagine that such a man has no relations demanding to take him away. Literally, he is not “free to leave”. Literally, he is under continuous supervision. Is he in a situation of deprivation of liberty? Surely not. So if Katherine cannot realistically leave in the sense described above then it must follow that the second part of the acid test is not satisfied.
  5. By contrast MIG was a young woman with full motor functions, notwithstanding her problems with her sight and hearing. She had the physical capacity to leave in the sense described. She had sufficient mental capacity to make the decision to leave, in the sense described. If she tried she would be stopped. Therefore, it can be seen that in her case both parts of the acid test was satisfied.
  6. In my judgment there is a very great difference between the underlying facts of MIG’s case and of this case notwithstanding that in both cases the protected person lives at home.
  7. It is my primary factual finding that in Katherine’s case the second part of the acid test is not satisfied. She is not in any realistic way being constrained from exercising the freedom to leave, in the required sense, for the essential reason that she does not have the physical or mental ability to exercise that freedom.
  8. I am not suggesting, of course, that it is impossible for a person ever to be deprived of his liberty by confinement in his or her own home. In the field of criminal law this happens all the time. Bail conditions, or the terms of a release from prison on licence, routinely provide for this. However, I am of the view that for the plenitude of cases such as this, where a person, often elderly, who is both physically and mentally disabled to a severe extent, is being looked after in her own home, and where the arrangements happen to be made, and paid for, by a local authority, rather than by the person’s own family and paid for from her own funds, or from funds provided by members of her family[3], Article 5 is simply not engaged.

 

 

For me, Alex Ruck puts it perfectly in his analysis

 

Mostyn J’s conception of freedom to leave is fundamentally predicated upon a concept that of liberty that is dependent upon a person’s ability to exercise that right, either themselves or by another. A person who is severely physically disabled – and therefore house-bound – could not, on Mostyn J’s analysis, be considered to be deprived of their liberty. It is, however, extremely difficult to square that analysis with the conclusion of Lady Hale (with whom Lord Kerr agreed) that liberty must mean the same for all, regardless of whether they are mentally or physically disabled (see the discussion at paragraphs 33-36).

 

We are once again getting back to a conflation of two questions – whether someone is deprived of their liberty, with whether it is justified. Katherine’s circumstances almost certainly make any deprivation justifiable, but to say that her liberty is not deprived as a result of her physical and mental difficulties is at right angles to the decision of the Supreme Court in Cheshire West.

 

We shall see what they say, if the case finally gets to them, but given how long we waited for Cheshire West to be resolved, the prospect of further doubt in this area is not appealing.

{I myself like to ‘stress-test’ deprivation of liberty cases by looking back to L and Bournewood – I’m not sure L would be helped by this sort of formulation}

Cheshire West fallout

There’s an excellent piece of investigative work by Community Care about the escalation in the number of Deprivation of Liberty cases since the Supreme Court made a substantial change to the law in Cheshire West.

 

If you have a chance to read the full thing, I heartily recommend it.  (the remainder of this article is my extraction and citation of what I considered to be the main issues)

http://www.communitycare.co.uk/2014/10/01/50-deprivation-liberty-safeguards-cases-breaching-legal-timescales/

 

Half of Deprivation of Liberty Safeguards (Dols) cases are breaching legal timescales for completion after a landmark Supreme Court ruling in March triggered a nine-fold rise in monthly referrals to councils, a Community Care investigation has found

 

In 2013-14 councils received 8,455 requests for Dols assessments; since April this year they’ve already had 32,988 referrals. The figures mean average monthly referrals have risen from 713 in 2013-14 to 6,643 in 2014-15. The effect of the dramatic rise in cases is clear. Last year 2.2% of cases breached timescales; so far this year 50% of cases were not completed in time.

 

Councils have also seen more legal challenges to deprivations of liberty and one local authority has sent a ‘systemic abuse alert’ to an adult safeguarding board warning that it could not meet the ‘Supreme Court challenge’ due to a shortage of resources.

 

 

The court ruling has also intensified a shortage of best interests assessors (BIAs), whose role is to determine whether a person is, or will be, deprived of their liberty and, if so, and whether this is in the person’s best interests. Councils are scrambling to train up more social workers as BIAs in a bid to boost assessor numbers, but many training courses are oversubscribed and, even if a place is secured, training can take months.

 

We found that the shortage of trained staff in councils means local authorities have already spent £1.4m on independent BIAs in 2014-15. That’s almost three times the £550,000 spent across 12 months in 2013-14.

 

 

  • Legal challenges are rising: In the first five months of 2014-15 local authorities had 61 legal challenges brought over deprivation of liberty cases. In the 12 months of 2013-14 the councils had received a total of 49 legal challenges.

 

  • Safeguarding concerns have been raised: Cornwall council raised a ‘systemic abuse’ alert with the local safeguarding adults board over the council’s inability to safeguard people under Dols, due to a lack of resources to meet the post ‘Supreme Court challenge’. The council said it wanted to ensure there was independent scrutiny of its response to the judgement. The councils said its “principal difficulty is one of resources and the availability of suitably trained staff to implement the DoLS for the greatly increased numbers. The council referred its concerns into the adult safeguarding process while it took urgent steps to address problem.”

 

  • Stacks of referrals have been held back: Evidence from council reports shows that the referrals received so far are only likely to be a fraction of those that could meet the Supreme Court test as care homes and hospitals are delaying applications. In some cases, council reports say this is due to them ‘ignoring’ or not understanding the implication of the Supreme Court judgement. In other cases it is deliberate:

We found one example of a council agreeing with a care provider to delay sending in 30 referrals to help with ‘backlog avoidance’.

In a second case, a council report showed that some homes had delayed in sending in referrals as they were ‘sympathetic’ to the pressures on the local authority. In the report, the council’s Dols lead said that this was often happening ‘to the detriment’ of the person. The report shows that the Dols lead contacted the homes and told them to make the applications.

◦A third council report we obtained showed that a local acute hospital had still to send in applications. The hospital had conducted an initial scoping exercise and identified a potential 35,000 referrals. This alone would lead to the Dols team facing a 350-fold increase in cases, the report showed.

 

Bloody hell.

 

Information drawn from the Health and Social Care Information Centre  from 130 of 152 councils make the point even more vividly. http://www.hscic.gov.uk/catalogue/PUB15475

A 600% increase in monthly referrals is a terrifying amount. There is simply no way that social workers, local authority lawyers, best interest assessors, lawyers for families, the Official Solicitor or the Courts can cope with that sort of increase.

 

The councils received 21,600 Dols applications from April to June 2014, compared with 12,400 in the whole of 2013-14, a 597% increase in monthly referrals;

  • of these, 51% were authorised, 12% were not authorised, and 36% had not been withdrawn or not signed off by the council as of September 2014.

 

(I’m really impressed with the work that Community Care have done on this, and I hope that everyone in the field reads their piece, hence my bigging it up here)

Somerset v MK – conduct of a Local Authority and deprivation of liberty

 

 

This is a Court of Protection case, involving a 19 year old “P”.

 

Somerset v MK – Court of Protection,Deprivation of Liberty ,Best Interests Decisions ,Conduct of a Local Authority 2014

 

http://www.bailii.org/ew/cases/EWCOP/2014/B25.html

 

P is aged 19, she was born on 10/10/1994 and has severe learning disabilities and autism spectrum disorder. She has almost no verbal capacity and communicates through gestures and via PECS

 

In May 2013, P presented with bruising on her chest and was examined by a paediatrician

 

His report (G25) said: “the bruising is felt to be comparable with a blow / blows to P’s anterior chest with a significant force or fall onto an object… this would be an unusual injury pattern to have been self-inflicted but if this was the case then it would be expected that such self-harm, which would have been demonstrably significant and painful, would have been witnessed”.

 

 

Sadly, when considering how those bruises came about, nobody seemed to have grasped the significance of the report from the school two days earlier of P being observed to hit herself hard and repeatedly on the chest.

 

The Judge notes,with a degree of acidity, that it seemed to only be when the papers in the case were sent by the Local Authority to leading counsel that the two matters were linked and the Local Authority ceased to seek a finding that P had been injured by her parents.

 

The belief that P was not safe with her parents was what had led the LA to remove her and deprive her of her liberty, and hence to make the application authorising that deprivation of liberty. Initially it had been for two weeks respite, but that stretched on and on, to over a year.

 

16. In addition the LA changed its position on the factual issues so that it was unlikely to pursue factual findings with regard to the injuries sustained by P. Previously the chest bruising seemed to form a vital part of the LA case and one might, for instance, have expected findings being sought about a perpetrator or perpetrators and failure to protect but now it was clear that no such findings were being sought. It is also clear from the document that the significance of the reported hitting by P of herself in the chest on 21/5/13 had been realised (the class trip evidence had not yet been identified). I suspect the realisation of the significance of this evidence in any Finding of Fact hearing and the instruction of very experienced leading and junior counsel just prior to this document being filed are not entirely coincidental.

 

Given that the reason for keeping P apart from her family had been the suspicion that they had injured her, when the truth is that the bruising was explained by the school’s observations of her hitting herself in the very same place, the LA were in a very tough spot.

 

14. On the 26th March the LA filed its position statement dated 25/3/14 to be found at A12 to 15. In this document the LA conceded that P had been deprived of her liberty (it contended that there may have been some doubt about that before but not after the Supreme Court ruling in the Cheshire West case).

 

15. In addition the LA accepted that there had been a period when they had unlawfully deprived P of her liberty contrary to Article 5 ECHR. It had not been authorised by the Mental Capacity Act 2005 and was not therefore “a procedure prescribed by law”. This it accepted continued from 8th June 2013 (the date when the respite care was supposed to have ended and 28th November 2013 when the first authorisation was obtained. It goes on to concede that P’s deprivation of liberty and the loss of her society to her family was a breach of both P and M’s Article 8 rights and not in accordance with the law.

 

 

If they had stuck with the apology and worked up a rehab plan without delay, things probably would have gone better for them, but instead they decided that it was in P’s best interests for her NOT to return to the family home but to be in a long term placement at a care home.

 

17. The LA make it clear that the best interests decision as to what should happen from now on to P is one to be considered purely in terms of her present and future welfare needs. The document indicates that the LA wish to apologise to the family for its “procedurally inappropriate and unlawful” actions. It still proposes that the best solution is for P to be in LA care and accommodation (up to April 2014 it had suggested a long term placement at a care home in Bournemouth was appropriate). Now it accepts a new social worker should be involved and make another best interests assessment and the case should be returned to court for an interim consideration of where P should be.

 

 

As part of that, the LA had drawn up a schedule of findings of fact on other matters. It is significant to read what the Official Solicitor had to say about that schedule

“…the reliance on this long and historical schedule to paint a damaging picture of this family is unnecessary and disproportionate. It does not build bridges.”

 

 

The Judge agreed with that, and also in conclusion said this:-

 

the adversarial nature of the argument and cross-examination needed to advance the schedule robbed the LA’s apology for its conduct of at least some of it credibility, no matter how carefully and dextrously leading counsel for the LA put the case.

 

 

{It is rather difficult to look sincere in your apology when you’re also trying to stick the boot in at the same time}

 

25. The siren song behind the argument is if I make the findings of fact and apply them and all the other relevant considerations to the case I will be driven to find that P’s best interests will be served by her not returning home but as far as the LA are concerned that is a matter for the judge. An outside observer might ask himself the question if everyone including the independent social worker and the OS for P are agreed on a return home and the LA are neutral why has it taken 9 days to litigate the case? However the reality is that the past conduct of the family and the LA are the context for the best interests decision and also the components of the breach of the ECHR application and thus needed to be carefully examined.

 

 

The Court did not make the findings that the LA sought, including one that the Judge said was “unprovable and irrelevant at the same time”   (a difficult combination to achieve)

 

What makes this case potentially important is the evidence of the senior manager of the LA, who the Judge remarked a number of times had the principal role of being there to fall on his sword.

 

 

The senior social work manager is a highly intelligent and senior social worker but he is essentially there to fall on his sword for the LA failings and on the best interests issue does not add anything to the LA case

 

However,

 

 

57…He was in my view a highly intelligent, experienced and well-intentioned manager and social worker who was, having observed him not just when he was giving evidence but when he was listening to evidence, genuinely shocked at some points by what he heard. At the start of his evidence he said: “I think the crucial aspect relying on what I have heard in court is a fundamental misunderstanding of the role of adult social care and how to go about their jobs“.

 

[Oh. My. God]

 

58.  He (and I) did not question the motivation of LA to do the right thing, as they saw it, for P but he described the conduct of social workers on the ground as misguided. There was no understanding of the law in this area and that extended to the LA lawyers as well as social workers. He accepted when I asked him that not only were individual actions wrong but the philosophy behind those actions was wrong as well. In particular he said that practice was inadequate when consulting with the family: “I have to ensure the staff who work in this area understand their role and I clearly failed in my responsibilities, failure as team manager, they failed to seek or take advice given the complex nature of the case. The beliefs and intentions of what people did was misguided in its approach”. He was very critical of the delay from September when the police indicated they were not taking their investigation of bruising any further to issuing proceedings which seemed to him to be time taken to, “put a good case together, which was not what we got”. He also highlighted the failure of the LA in not having a lawyer who specialised in adult social care.

 

[Oh. My. Flipping. God]

 

He was not wrong. The Judge analysed the conduct of the LA very carefully.

 

67. The police finally finished their investigation in September 2013, it was inconclusive. The LA were now in a position where prior to May they had not taken any action and the bruising in May could not be used to substantiate a retention of P. At the same time they had a very distressed young woman on their hands to whom medication was now being or about to be administered.

 

 68. Around about the time of the move to SASS people at last start to show alarm at the legal position. Why had they not appointed an IMCA (e-mails at O1169): “I am really not clear how we are holding P at Selwyn”, a colleague to Mr M 22/11/13, later that day in another e-mail should they not have gone to the CoP? Mr M on the same day: “P is still under safeguarding procedures”. One asks the questions why does he think that now the investigation has been over for two months and how does he think that justifies holding her?

 

 69. There had been other meetings the family should have been invited to but were not on 5/9/13 and on 12/11/13. The first of these meetings comprises of a massive amount of criticism being levelled at M and Mr E in particular most of which is either hearsay or from an anonymous source who is quoted at length but seems to be highly unreliable and possibly had some kind of personal agenda.

 

 70. At the meeting of 17/12/13 it was explained according to the minutes at J35 that the family were invited to discuss plans about P’s future and express their views. In fact it is clear that was not the reason they were invited at all. Far from a change of heart and an attempt to communicate the reason is clear. It was felt by Mr M on advice from the LA lawyers that: “The COP might pick up that no ’round table’ meeting has been held and this might disadvantage us during the hearing” (see the bundle at part O page1086).

 

[Oh. My. Martha. Flipping. God]

 

 

The Judge concludes

 

74. This is already a very long judgment and so I do not propose to go on reviewing the LA’s conduct further. The overall summing up by the senior social work manager was: “There has been a corporate failure and a failure of those on the ground to realise that they are out of their depth, most worrying was that they looked more sure about what they were doing than they ought, … it’s going to be difficult to re-establish that trust (with the family) if it’s rebuilt it is going to be with good practice”.” Mr Justice Ryder (as he then was) in a leading authority on FII cautioned social workers in child care cases not to decide what the picture was and then make the facts fit the picture, it seems to me that is what happened here.

 

 

Undertaking the best interests analysis, it is a demolition and as one-sided as a Harlem Globetrotters match

 

The balance sheet therefore shows the following –

 

 

In favour of P returning home

 

i Her wishes

 ii The wishes of her family

 

iii.             The right to a family life of P and her family

 iv The fact that at home she may not be subject to any deprivation of liberty and therefore this will be the least restrictive option

 v Concerns about the bruising have been abandoned as a reason for her not going home

 vi The OS supports return

 

vii.           The independent social work reporter supports return

 

viii.         I have found nothing in the Schedule of Facts to prevent return

 ix I have found there will be a degree of co-operation between the principal family members and the LA.

 

 

For a placement in a specialist home

 

 i The view of the LA that P will best reach her full potential in terms of her development, social life, communication skills and so on in a specialist home.

 

 

 

P therefore returned home and the Court found that there had been breaches by the Local Authority of her article 8 right to private and family life

 

76. There is no question here that P was removed unlawfully from her family, she went into Selwyn for respite care and it is from the date of her mother’s return from holiday that the breach flows. I further accept that the LA had a duty to investigate the bruising but I find that a competently conducted investigation would have swiftly come to the conclusion that no or no sufficient evidence existed to be able to conclude P’s safety was at risk by returning her home. This conclusion should have been reached within a week or so after the family asked for her back. If the LA came to a different conclusion, as they did, they should have applied to the CoP by early June for a hearing. Not doing so is a further breach. Having not done so they should have told the family they could make an application, not doing that is a further breach. After the Police investigation ended in September P should again have been returned but was not nor was an application made to CoP as it should have been. The limitations and conditions placed on contact between the family and P constitute another breach.

               

 

I make that five breaches

 

78. These findings illustrate a blatant disregard of the process of the MCA and a failure to respect the rights of both P and her family under the ECHR. In fact it seems to me that it is worse than that, because here the workers on the ground did not just disregard the process of the MCA they did not know what the process was and no one higher up the structure seems to have advised them correctly about it.

 

 

 

 

 

Can the Court of Protection authorise detention of an adult in a Children’s Home?

There is something of a rule of thumb that if a newspaper headline poses a question, the answer on reading the full article is invariably “No”   (as in  “Can a glass of red wine cure cancer?”  “Were Al-Qaida involved in Diana plot?”

 

Some good examples here

 

http://www.independent.co.uk/news/media/press/the-top-ten-questions-to-which-the-answer-is-no-8788687.html

 

This one though, is a question to which the answer (somewhat inexplicably to the naked eye) is  Yes

 

Liverpool City Council v SG 2014

http://www.bailii.org/ew/cases/EWCOP/2014/10.html

 

In good, dramatic novelist style, Holman J gets stuck into it from the very off, and lets us know in paragraph 2 that this is not some mere dull Court of Protection case, but that something peculiar is about to happen, read on !

 

  • This case raises the following question:

 

 

Does the Court of Protection have power to make an order which authorises that a person who is not a child (ie who has attained the age of 18) may be deprived of his liberty in premises which are a children’s home as defined in section 1(2) of the Care Standards Act 2000 and are subject to the Children’s Homes Regulations 2001 (as amended)?

Both parties and their counsel in these proceedings submit that the answer is “yes”. I agree with them that the answer is “yes”.

 

We go on

 

 

  • I wish to stress at once the scope of that question which I have precisely drafted. This judgment and my answer to the question applies only in the case of a person who is not a child, that is, who has attained the age of 18. This judgment says nothing at all in relation to a person who has not attained the age of 18, and in particular to persons between the ages of 16 and 18. Further, this judgment is only concerned with a person in a children’s home, and says nothing at all with regard to a person who may be detained in a residential school.

 

 

 

  • I also wish to emphasise that both parties and their counsel who are before me in this case are agreed upon the answer to that question and the reasons for the answer. In other words, I have not heard any argument or submissions to the contrary. If, in some other case, on a future date, some party wishes to argue to the contrary, then of course that limitation or reservation upon the value of this ex tempore judgment as a precedent may be noted.

 

I have more of the average human allowance of curiosity to be sure, but my curiosity is piqued by this. It is sounding like some sort of trick question. Let’s go over it piece by piece.

 

The Court of Protection – dealing with a person who has reached the age of 18. Not a child.  They are in a children’s home though.  (we don’t yet know why). The Court of Protection is being asked to authorise their detention (we don’t yet know why). And being asked to authorise their detention in a children’s home (we don’t yet know why)

 

All of my instincts are screaming out at me that the answer to this must be no. Adults don’t get locked up in children’s homes. It just doesn’t happen. If the person is an adult, then the detention is either through the criminal justice system, the mental health act or an authorisation of deprivation of liberty under the Mental Capacity Act  – this one is the last of those, which is why it is in the Court of Protection. But the Court of Protection only deals with adults, so why has a children’s home been dragged into this?

 

I stopped reading the judgment at this point to see if I could guess why. Here’s my crack at WHY – this is a person who has huge problems, lacks capacity, and has been in a particular children’s home for many years, maybe six or seven years. They have only just turned 18 – their liberty has to be deprived, but they are doing so well in the particular children’s home that nobody wants to move them. So, in order to let them stay where they are, the Court has been asked to authorise detention of an adult in a children’s home.  Maybe I am wide of the mark, we shall see.  That’s a plausible-ish WHY, but I’m still baffled on the HOW element. How did the Court of Protection decide that this was lawful.

 

Let’s return to the judgment itself

 

  • The reason why the question has been posed appears to derive from two relatively recent developments. The first development is the recent decision of the Supreme Court in the Cheshire West case. The explanation given in that case by Baroness Hale of Richmond as to the scope or breadth of the concept of a deprivation of liberty has led to a concern that a significant number of people are, or may be, being deprived of their liberty who were not previously thought to have been. As is well known, this has led to a very large number of applications to the Court of Protection in order to seek authorisations for the deprivation of liberty.

 

 

 

  • The second development is a document headed “Deprivation of Liberty – Guidance for Providers of Children’s Homes and Residential Special Schools” dated 12th February 2014 and issued jointly by the President of the Court of Protection and the National Director Social Care OFSTED. It appears that as a result of that guidance document there has been, or is, uncertainty on the part of many lawyers and providers in this field as to the scope or extent of any power of the Court of Protection to authorise, when appropriate, the deprivation of liberty of certain categories of person who are accommodated in children’s homes or residential special schools. As the above defined question indicates, that concern has arisen in the present case, but I know that it is much more widespread as a result of the circumstances which I now describe.

 

 

{Absolutely – the Supreme Court’s decision in Cheshire West means that a range of people who were not thought to be having their liberty deprived actually ARE, and the President has heard a case but is yet to give judgment helping explain what the heck lawyers and Local Authorities and the Courts are going to do with the 10,000 extra cases that are believed to now be deprivation of liberty applications. Some of those cases might arise with young persons who are currently in children’s homes, but haven’t been the subject of Secure Accommodation Orders because they lack capacity to try to abscond

Treasury Solicitors said this ” These issues potentially affect a large number of children and young people who lack capacity but who currently reside in non-secure children’s homes or residential special schools. By way of example only, as at 31st March 2014, there were more than 6,500 over 16 year olds residing in care homes, children’s homes or residential special schools. The Secretary of State has not yet been able to determine the proportion of those 6,500 odd young people who may lack capacity.”    So at the moment, we don’t know how big a problem Cheshire West is for children}

 

Now, the facts of the case in question

 

 

  • It concerns a young woman, SG, who was born in early June 1995. Today she is in fact now 19. She was born in Romania and was apparently rapidly abandoned by her parents and taken to a state orphanage there. The first few years of her life appear to have lacked human affection and natural processes of bonding or attachment. When she was about 4 she was adopted by an English couple, who are, of course, now her parents.

 

 

 

  • As she grew older, it became increasingly plain that she suffers a number of lasting disabilities or disorders. She certainly has learning disability, a disinhibited attachment disorder, and quasi autism. Features of her condition have always been hypersensitivity to external stimuli, and challenging behaviour. More recently there has been a tragic history of self harm. Her childhood has, as a result, been very disrupted. She attended, but was removed from, various schools. She has had to spend long periods in hospitals. More recently she was placed in children’s homes. Challenging behaviour towards staff, absconding, damaging property, episodes of self harm and hitting out at her father have all been recorded.

 

 

 

  • For some time before she actually attained the age of 18 she was accommodated in a certain children’s home in the area and it is in those actual premises that she remains accommodated to this day. However, now that she has attained the age of 18 and is indeed now 19, it is completely recognised by the responsible local authority, in agreement with her parents, that arrangements must be made to enable her to move on to what is described as “supported living” in the community. This will take time to identify and set up, and, I have no doubt, considerable funding issues will need to be addressed. The local authority need to find a provider who will purchase or otherwise make available a suitable property and recruit a sufficient number of staff to care for her and keep her safe. The plan is that some premises will be found in which she can live together with a small number of other young women with similar needs. I have been told in the words of the skeleton argument on behalf of the local authority that:

 

 

“…one provider has already identified a suitable property and indicated a service could be in place for October 2014. It is hoped that securing a property will take no more than six to nine months after appointing the care agency, but it may be much quicker than that.”

As I understand it, it is contemplated that a high level of staffing and supervision will be required under that plan. If (as I assume is likely) it will involve a deprivation of liberty, then, in due course appropriate authorisations will be required.

 

  • Meantime, however, she has continued to live seamlessly in the children’s home where she was living before she attained the age of 18. There, too, she is the subject of very considerable staffing on a 3:1 basis. The staffing includes monitoring her while she is in the bathroom (ensuring her dignity is maintained at all times), locking the front door as a preventative measure, following, observing and monitoring her on visits into the community, and if she “attempts to leave the staff supporting her, they should follow several paces behind her and attempt to maintain conversation.” Items which may be used for self harm will be removed, and she remains supported 3:1 during the day and 2:1 during the night.

 

 

 

  • It is completely accepted by and on behalf of the local authority that that package of existing measures clearly amounts to a deprivation of her liberty as that concept has now been explained, in particular in paragraph 46 of the judgment of Baroness Hale of Richmond in the Cheshire West case, which I do not need to cite for the purposes of this judgment. Having appreciated in the light of the Cheshire West case that they currently do, and propose to continue to, deprive the patient of her liberty, the local authority commenced the present proceedings in the Court of Protection for appropriate authorisations.

 

 

 

 

Okay, I wasn’t that far wrong with my guesses – she is 19, has severe problems and has been in a children’s home doing as well as one could hope – she needs to be moved to another placement, and everyone involved wants her to stay in the children’s home until the RIGHT adult home can be found for her, rather than just moving her into any old adult home and potentially setting her back. That makes sense. But whereas before Cheshire West, professionals could ‘overlook’ that this was an 18 year old living in a children’s home, once the Supreme Court ruled that people like this were being deprived of their liberty, an application to authorise that had to be made.

 

Having done the WHY, we can now deal with the HOW.  But first, why is the HOW potentially difficult?

 

 

  • Section 121(1) of the Care Standards Act 2000, the interpretation section, defines that in that Act “child” means a person under the age of 18. Section 1(2) of that Act provides that: “An establishment is a children’s home… if it provides care and accommodation wholly or mainly for children.” The premises in which the patient in this case currently resides, and was residing before she attained the age of 18, is premises which have provided care and accommodation wholly or mainly for children in that there were at one time several children resident there. It is currently “registered” as a children’s home pursuant to the Care Standards Act 2000 and regulations made under it.

 

 

 

  • I have been told today that as a matter of fact no other person (apart from staff) currently resides in those premises apart from the patient. So, on one view, currently it is not providing care and accommodation even “mainly for children”, as no child resides there at all. However, all parties have proceeded on the basis that, notwithstanding the fact that currently no children reside there, it remains a children’s home for the purposes of the Act and the regulations, and I will proceed on that basis and assumption.

 

 

 

  • Assuming the premises to be a children’s home, the Children’s Homes Regulations 2001 SI [2001] No 3967 are in general terms engaged. Part III of those regulations is entitled “Conduct of Children’s Homes”. Chapter 1 of Part III is entitled “Welfare of Children”. Within Chapter 1, regulations 11 to 24 make a range of provisions with regard to the welfare of children, the food provided to children, communications with children, the protection of children, the behaviour, management and discipline of children, health needs, hazards and safety and other matters.

 

 

 

  • Of most relevance to the perceived problem in the present case is regulation 17A, which is entitled “Restraint”. Paragraph (1) provides as follows:

 

 

“(1) Subject to paragraph (2) a measure of restraint may only be used on a child accommodated in a children’s home for the purpose of-

(a) preventing injury to any person (including the child who is being restrained);

(b) preventing serious damage to the property of any person (including the child who is being restrained); and

(c) in the case of a child accommodated in a children’s home which is a secure children’s home, preventing the child from absconding from the home,

and then only where no alternative method of preventing the event specified in sub-paragraphs (a) to (c) is available.”

 

  • Just pausing there, whilst the regulation is prominent, it will be noted that throughout that part of that regulation the references are entirely to “a child”, that phrase being used five times in that short quotation.

 

 

 

  • The guidance that was issued on 12th February 2014 states at paragraph 3:

 

 

“3. The Court of Protection should be reminded by the parties of the regulations that apply to children’s homes and residential special schools. The Court of Protection does not have the jurisdiction to require any home or school to act in breach of such regulations or to authorise any such breach. Accordingly, the Court of Protection should not make an order authorising a plan for the care and supervision involving the detention of a person, where to do so would involve the children’s home or a residential special school breaching the regulations that apply to it. If compliance with an order of the Court of Protection would involve such a breach of the relevant Regulations it cannot be relied on to justify breach of the Regulations or enforced in a manner that would involve such a breach.”

 

  • Pausing there, that paragraph contains, if I may respectfully say so, no more than a legal truism. Regulations have the force of law, and no court, frankly, in any circumstances that I can readily think of, can authorise a person or body to act in a way that contravenes a regulation, or still less a statute, so as to be in breach of the regulation or statute. On a careful reading of that paragraph of the guidance, it ultimately says no more than that. The question, therefore, in any case is whether what the Court of Protection is otherwise being asked to authorise would amount to a “breach” of some regulation.

 

But one can see that the children’s home is authorised and approved to accommodate children, and in certain very narrow circumstances to restrict the liberty of children. The Act doesn’t give them as a children’s home, any right to restrain an adult or restrict the liberty of an adult.

 

 

  • he guidance continues at paragraph 4 as follows:

 

 

“4. All children’s homes must meet the Children’s Homes Regulations (2001). In this instance, the relevant regulations are:

Regulation 11 (Promotion of Welfare),

Regulation 17 (Behaviour, management and discipline) and

Regulation 17A (Restraint).

As restraint can only be used to prevent a child from leaving a secure children’s home, there is no purpose to be served in seeking an order of the Court of Protection authorising such restraint by a non-secure children’s home because the Court of Protection has no jurisdiction to order or authorise a breach of these regulations.”

 

  • Pausing there, it is possible (I put it no higher than that) that the accuracy of that part of the guidance is more debatable. It may beg the question of whether paragraph 17A(1)(c) of the regulations is a platform or a ceiling. But that is territory into which I simply should not and do not venture in the present case because paragraph 4 of the guidance is directed to “a child” and, as I have stressed, the patient in this case is not a child.

 

 

 

  • Finally, in a section that is avowedly headed “In Summary”, paragraph 13 of the guidance provides:

 

 

“13. Orders of the Court of Protection authorising a deprivation of liberty by non-secure children’s homes or residential special schools should not be sought or made and they should not be advanced or relied on to permit such homes and schools to act in breach of the regulations that apply to them.”

That, of course, is merely a summary, and the content of paragraph 13 is more fully elaborated in paragraphs 3 and 4 from which I have already quoted.

[The reason why this guidance is important is because it makes it plain – that might be too strong a description – it intends to make it plain – that the Court of Protection authorises deprivation of liberty for ADULTS, and the Family Court through s25 Children Act secure accommodation authorises the deprivation of liberty of CHILDREN. The idea is that the Court of Protection should not sidestep s25 Children Act – which has its own protections and safeguards by authorising the detention of children who lack capacity and using the Mental Capacity Act.  So, if SG was 17, the Court of Protection would not be able to tell the children’s home that it was okay to detain her.  And conversely, as she is 19, the Court of Protection can authorise her detention or restriction of her liberty under the MCA. But this person is betwixt. They are an adult in a children’s home. ]

The issue was, does all that guidance mean that the Court of Protection have to butt out (technical term there, but ‘accept that they have no jurisdiction’) for anyone whose liberty is being deprived in a children’s home, as para 13 says?  Or is it nonsense to suggest that para 13 applies to anyone other than CHILDREN?

Holman J takes the latter course, and now finally it all becomes clear (if by clear, you mean – gosh, my head hurts, I feel the need to lay down in a dark room and listen to soothing music)

  • The short and simple point is that the relevant parts of the Children’s Homes Regulations 2001 simply do not apply at all in the case of a person who is no longer a child. It may often happen, as it has happened in this case, that the premises in which a person, now adult, resides or is detained happen also to be a children’s home. But it frankly makes no difference whether the premises themselves are a children’s home or are some dedicated premises that have been provided in the community under the kind of “supported living model” contemplated for this very patient in this very case.

 

  • In my view, the Court of Protection has undoubted power in the present case to make, if appropriate, an order authorising the deprivation of liberty. Further, it is the duty of the person or body, in this case the local authority, who is or are depriving the patient of his liberty, to apply to the court for an authorisation; and, indeed, the duty of the court to make such authorisation as in its discretion and on the fact and in the circumstances of the case it considers appropriate.

 

  • In the present case it is common ground, and there is abundant evidence to support the proposition, that this patient lacks capacity to litigate and to make decisions as to her care and residence, and that it is in her best interests to continue for the time being to reside in the premises which are a children’s home in which she has been residing for some time, and that the deprivation of her liberty which is involved should be authorised.

 

  • So for those reasons I, myself, answer the question posed in paragraph 2 above as “yes”, and there will be an order which records that the court does consider that neither the Children’s Homes Regulations 2001 nor the joint guidance issued by the President of the Court of Protection and OFSTED dated 12th February 2014 prevent the Court of Protection from authorising under the Mental Capacity Act 2005 that a person who is an adult (viz. over the age of 18) may be deprived of his liberty in premises which are a children’s home. There will be appropriate declarations as to the lack of capacity and best interests of the patient and authorising the deprivation of her liberty; and I now transfer this matter back to the Court of Protection sitting in Liverpool where future decision making will be resumed after an appropriate interval by the local district judge there.

 

 

If you thought that the recent case about whether a former head of state had immunity after their death for marrying someone and not paying them any money was (a) complex and (b) a set of circumstances so recherche that they would never arise again if we lived and litigated until the sun ran out of fuel and the stars went out, then this one probably matches it.

 

It does show that the litigation fallout from Cheshire West is the gift that keeps on giving. There was a theory I read once that crossword puzzles were designed by an enemy of Britain, to soak up the brainpower of our most able people so that they would waste time on solving those rather than inventing things to help the War effort. The same may be true of Cheshire West – it may all be a cunning ruse by Baroness Hale to keep all Mental Capacity Act lawyers embroiled in solving what appear to be intractable problems and getting them all to take their eye off something far bigger and more significant.

 

Extinction bursts

 

 
Northamptonshire NHS Trust v Another 2014

http://www.bailii.org/ew/cases/EWCOP/2014/2.html

This is a sad Court of Protection case, involving a young man named ML. ML had a variety of different needs :- severe learning disability, developmental disorder, autism, epilepsy and diabetes. He has very limited conventional skills of communication or social interaction.

As a result of this, his family reached the point where they needed some help. Three times per week he attends an Autistic Day Centre from 10.00am to 3.00pm, but otherwise lives with his family full-time.

The Trust made an application to the Court of Protection seeking a declaration that it would be in ML’s best interests to reside at Bestwood Hospital and get treatment there until he is in a position to return home.

All parties were agreed that this would be a deprivation of liberty (particularly following the Supreme Court’s decision in Cheshire) , and thus something that would need to be specifically authorised.
5. Behind these deceptively simple draft declarations is a history of professional and family conflict which has frequently been bitter and occasionally rancorous (amongst the professionals). It is a case which has engendered many high emotions in people who feel strongly about the important nature of the work they are involved in and who are very highly motivated to achieve the best outcomes for ML. Some, though certainly not all, witnesses have overstated their cases, been selective in their use of material, emotive in their use of language, disrespectful to those who hold contrary views. In consequence, despite their laudable objectives, they have made it difficult for me, at times, to get a clear picture of how ML functions and how his needs might best be met. If I accept the evidence of Susan Freeman, Nurse Consultant, ML is one of the most dangerous patients she has encountered still living within the community. She had, she told me, “only experienced one other person with more aggressive behaviour impact on others to the severity that ML’s does” and this was in the context of 30 Years of nursing people “whose behaviour challenges services” as she puts it. In her statement of the 31st January 2014 Ms. Freeman observed “I am a very experienced learning disability nurse. In all the years that I have been practicing ML is one of the most complex and challenging patients that I have been involved with, the range of his needs is quite vast”. Ms Freeman described ML as showing high levels of aggression “impacting on every area of his life and inhibiting appropriate health care intervention”. She believed his abilities were diminishing in an isolated routine. She said “If ML is not transferred out of his current environment and routines his world is going to continue to decrease”. ML’s diet said Ms Freeman was entirely unsatisfactory. By way of example she said ML ate only jam sandwiches and that little attempt was made to vary the diet. Certainly jam sandwiches, as Mr Weston, later confirmed were all ML ever ate at the Day Centre. I have heard in evidence that this resistance to new experiences, taste or routines is a feature of his autism, not uncommon at this severe end of the spectrum. Ms Freeman was uncompromising in her professional criticism of the National Autistic Society Day Centre. Their approach to ML’s care was she said “fundamentally flawed” it was “managing him at a distance” it involved withdrawing from him to avoid outbursts, it left him isolated and under stimulated and it served to reinforce his reliance on aggression.
6. In respect of the parents Ms Freeman said that they believe ML is simply unable to make progress or develop new skills. They are, she considered, over reliant on medication and believe its restorative powers will ultimately manage ML’s aggressive behaviours.
7. There was, however, a radically different picture of ML presented by other witnesses namely the parents, Ian Weston (the support worker at the NAS Day Centre) and Ms Heather Eyers.
8. It was not possible for the mother (EL) to come to London, it would have required an intolerable and unsustainable interruption to ML’s routine. I took her evidence by telephone link so all could hear it. She told me that she had made progress with ML’s diet, that he was now eating a broader range of foods: ‘pasties’, ‘crisps’, ‘sausages’ she said, by way of example, not particularly nutritious but an important improvement . She and her husband had attributed the peak in ML’s violent behaviour at the end of 2012 and early 2013 as being a consequence of his distress during his term as an inpatient in the Vale Hospital, where they considered he had been too readily ‘secluded’ (locked in a partially padded room) and for extended periods of time (4 ½ hours on one occasion). He had since calmed down and become more manageable. They had experienced no difficulty in managing him at home for months. Both parents said he was happy at home, well known and protected in their local community. He enjoyed seeing his brother and enjoyed the Day Centre. They have a padded room at home and both BL and EL told me that ML goes willingly to it when required. They simply do not see the extent of aggression that is attributed to ML and believe that the documented case gives only a partial picture. “We do not keep records at home”, they say. Moreover, they assert, the case papers inevitably concentrate on problem episodes rather than the many times when ML is relaxed and content. In their carefully presented closing submissions they undertook an analysis of the advantages of their proposals. It purported to be a comparative analysis but in truth, it was, understandably, largely one sided. They wish the present arrangements to continue and submit
Home / NAS Day Centre
i) We accept that there are no community living placements currently suitable for ML but there is no immediate need for ML to be moved from his family home. We are very happy for him to remain living here with us. We have managed to look after ML for 25 years and see no reason why we cannot continue to do so for the future.
ii) We are able to provide physical and medical care for ML. He is not disadvantaged in any way by living at home. We believe that we have the best understanding of ML’s medical needs having had to deal with them over his life.
iii) We believe that ML has gained enormously from moving back into his family home. He is happy and enjoys his life. He has daily contact with the outside world. His life is full and he is happy and secure in his routines.
iv) We believe that the work we have been doing at home with ML and the plans given in the recent NAS (National Autistic Society) witness statement give a solid base for work to develop ML’s functional skills using methods that take his autistic limitations into account. We believe this is likely to result in slow but steady progress for ML.
v) ML is an integral part of a loving family. We have always accepted his challenging behaviour and dealt with it. We have come through the difficult times with him and never gave up on him. We strongly believe that ML enjoys his family life and would want it to continue if he were able to choose.

 

Mr Weston comes out of this case with a considerable amount of credit, and the Judge had asked specifically to hear from him.

9. Having heard in evidence that ML had a particularly good relationship with his care assistant Ian Weston, I asked if Mr Weston could attend court because I hoped to be able to reconcile these differing accounts of ML’s general behaviour. Mr Weston could not have been more positive: he told me that ML enjoys walks but had, for example, easily been distracted from his usual routine when routes were impassable due to recent flooding. That was a good indicator of some of the progress being made he thought. He saw his role as “giving him the enjoyment that he needs”. I am impressed by the extent to which Mr Weston knew how ML was able to enjoy himself: ‘his Ipad'; ‘YouTube’, especially ‘Winnie the Pooh’ videos which he regularly enjoyed. He particularly likes swimming and likes Mr Weston repeatedly jumping into the pool. He enjoys the sound of the splash.
10. Mr Weston described how he had developed a habit for deflecting repeat requests for him to jump in and to which ML had responded. ML had learnt to dry himself which had always been a problem in the past he said. He was very clear that ML was much happier. Mr Weston was a tall well built man, both his stature and his contagious enthusiasm undoubtedly gave him an advantage over some of his colleagues. This was recognised and he was more regularly selected by the Day Centre to assist ML. It was made clear to me that one or two of the more diminutive assistants were less comfortable.
11. ML, it was agreed, likes “strong confident men”. I formed the view that whilst that strength and confidence was important it was not necessarily physical strength that he responded to (though that undoubtedly helps). He appears to respond to those he trusts well. I have seen photographs of him with his mother which reveal a capacity to display affection that the reports and evidence did not fully reveal to me.
12. All this said I note that on one very unfortunate visit to the swimming pool ML lashed out against Mr Weston, causing him to fall to the ground and crack two ribs. Mr Weston had to take some time off work. It did not deter him though and his relationship with ML has continued to flourish. Mr Weston knew that ML’s parents want to keep him at home and attending the Day Care Centre. I am clear that he intended to support them in his evidence. However, his commitment to ML and I thought real affection for him also communicated a sense of his own evaluation of ML’s potential. He seemed to me to be enthusiastic, to go beyond ‘keeping him happy’ and to bring him on. Mr Weston had, in my judgement, a strong sense that ML had greater potential than was being realised. Both ML and the NAS Day Centre are very fortunate to have Mr Weston. It was very clear to me why ML would respond to such enthusiasm and energy.

 

 

 

As part of the analysis of what ML might need in the future, the Judge wanted and needed to know more about the current assistance he is receiving. That seemingly innocuous enquiry led to an exploration of a short period ML had had in hospital, the Vale Hospital.

Ms Eyers, from the National Autistic Society had prepared a report about what the Day Centre were doing with ML, and the Court quoted extensively from it

16. In her report to the Court dated 11th February 2014, Ms Eyers evaluates the rationale and the success of the program. I propose to set her analysis out in full in order properly to do justice to it and so that it can address the criticisms made of it:
“The rationale of our current approach to behaviour support is to ask staff to leave at set intervals, so that ML’s need for time alone is respected before he has to present with physical aggression, which automatically causes the staff to withdraw. This approach aims to weaken the relationship between the presentation of the behaviour of concern and the reinforcer. This is achieved because the reinforcer is delivered independently of the presentation of the behaviour of concern. At the same time staff are modelling a more socially acceptable way for ML to communicate that he would like to spend time alone (waving of the hand). The full rationale is outlined in exhibit HE3.
Since the introduction of the behaviour support programme the day service has seen a drop in the amount of incidents to a maximum of 5 in one month, from up to 12 previously; with no incidents that have caused harm to others in a 3 month period. Analysis of the incident reports also indicates that the length of time of incidents has decreased from a maximum of 5 hours per day to a maximum 3 minutes. The intensity of incidents has also seen a decrease, with 55% of incidents post intervention requiring minimal response from his support team and not interrupting his activity, compared with 21% prior to the intervention – Exhibit HE4.
I feel that the current approach to supporting ML is successful, although it is slow paced, and we have seen a decrease in both the frequency and intensity of behaviours of concern and an increase in the amount of time that staff are spending in the space that has been dedicated to ML. It must be acknowledged that ML only currently spends 15 hours per week at the day service. The aims of the Behaviour Support Programme are now to increase the amount of time that staff are actively engaged in meaningful activity with ML – Exhibit HE5
In terms of the NAS continuing to support ML it is my opinion that whilst his levels of anxiety and physical aggression remain at current frequency and intensity then ML is not posing a high risk to those supporting him, himself or others who use the service. I would be cautious about using any other approach at the day service than the current Behaviour Support Programme, which relies on Non-contingent reinforcement, in which staff give ML structured periods of time when they are not in his company, as well as teaching functionally equivalent skills for him to tell us that he wants us to leave (rather than use of physical aggression), as this is having the affect of decreasing the number of incidents that ML is having, however it is a slow process and would need ML to continue to have his own safe space at the centre and to be more tolerant of staff before we can begin to look at preference assessment to find other activities that interest him.
The use of ‘extinction theory’ would not be appropriate at the day service due to the high risk of an ‘extinction burst’ challenging behaviour, the result of which would be of too high risk in this setting.
The NAS are committed to providing a good support service to ML and I do feel that once we have worked on his ability to tolerate others we can introduce a range of techniques to develop his functional skills and this will include :
i) Implementation of the Picture Exchange System to support his communication skills;
ii) Intensive interaction sessions to support development of his social interaction skills;
iii) Completing Sensory assessment and developing sensory based activities that meet his processing needs, especially in relation to tactile stimulation, olfactory stimulation and proprioceptive stimulation.
iv) Preference assessment to discover activities that interest and motive ML.

 
17. The Strategy referred to as ‘extinction theory’ has been the subject of much controversy in this case
Extinction theory and extinction bursts are a new concept to me, so I am grateful that the Judge explained it. There was a considerable schism between professionals in the case as to whether extinction theory would eventually bear fruit for ML and it was worth persevering through a difficult period, or whether it was harmful and wrong for ML.

24. An Extinction Burst is defined as follows:
“Extinction…. involves eliminating the reinforcement contingency maintaining a response which can result in … a temporary increase in the frequency, intensity or duration of the target response, also called ‘Extinction Bursts’ ” (Cooper, Heron and Heward, 1987 in Leman and Iawatu 1955).
I hesitate to attempt to reduce this concept into lay terms because, as has been emphasised, to do so runs the risk of oversimplifying what can be a subtle and complex process. Nonetheless, with that caveat in mind, it implies that if ML is confronted with something he does not like (stimuli of any kind) his fight instinct is aroused. The essence of the technique is to not respond in spite of the aggression and to continue the stimulus. It seems inevitable that until ML realises that his aggression is not causing the removal of the stimulus his aggression will accelerate. Breaking through this cycle, as I understand it, is termed the “extinction burst”. As ML recognised, he and EL are simply not able to manage this strategy. The reality (as opposed to the theory) is very painful and distressing both emotionally and likely physically too. BL told me he was profoundly afraid for his son, frightened about the technique and about the consequences if as he puts it “it all goes wrong”.
Part of the reason that ML’s family were worried that it would all go wrong, and opposed to ML being placed in hospital was the awful experience of his previous hospitalisation at the Vale.

 

 

25. ML was admitted between March and August 2012 as his parents were struggling to manage him. He returned having been discharged under the Mental Health Act 1983, pursuant to the discretionary powers of the Mental Health Review Tribunal in August 2012. It seems clear that the approach of the The Vale had been challenging and, had broadly, pursued the ‘extinction burst’ strategy that I have referred to above. It was a very difficult period for ML and his family. It was his parents who ultimately applied for his discharge under the Mental Health Act, which was opposed by the Trust.
26. In his 1st report, dated 24th October 2012, Dr Carpenter reviewed this period of admission. He saw no evidence that during the 5 months in hospital ML had learnt new self care skills sufficient to change his care needs. He observes
“In hospital he appears to have been restrained at length and this often disturbed him later, it certainly seems to have encouraged him to use his teeth to get away from being held…
He was then moved to another room to be secluded. My assessment is that as he had by then been in a struggling restraint for a period of time he enters the seclusion room very aroused and angry and then kicks and headbangs in a way that he was not prone to do – to the point of knocking himself unconscious and giving himself black eyes”.
27. In Dr Carpenter’s assessment, based on his review of the notes, the lengths of seclusion needed for ML to calm down were 10 times longer than they had been at home. Dr Carpenter also added:
“It is a challenge to find things that he enjoys. I feel we need to brainstorm the sensory likes he has and activities suitable for his development level“.
28. I endorse his last observation and I would emphasise it because, in different ways, every witness indentified the importance of this. Had there been a more collaborative approach amongst the professionals I suspect that much of this work would already have been done.
29. Annexed to Dr Carpenter’s report is a schedule headed ‘Hospital Seclusion record extracts’. I have found that to be a very disturbing document indeed. BL was unrepresented at this hearing and so I, on his behalf put this document under considerable forensic scrutiny. It is intrinsic to BL’s case that ML’s past treatment at the Vale Hospital has a direct bearing on future treatment and the declarations sought to enable such treatment to be implemented. Analysing carefully the periods of ‘seclusion’ whilst at the Vale Hospital is therefore crucial to this forensic process. BL is not a lawyer, he is a father. Though very effective in other aspects of the presentation of the case, the material relating to seclusion was something he found difficult to organise and evaluate. In my judgment that period was so full of pain for him as a father he could barely face revisiting it. His distress was visible despite his determination to remain controlled.
30. The way in which and the extent to which vulnerable adults are ‘secluded’ or deprived of their liberty is one of the indexes by which we measure our maturity as a democratic society. The necessity and proportionality of restriction of an individual’s personal autonomy requires constant vigilance and effective independent review. Both the framework of the Mental Health Act 1983 and the Mental Capacity Act 2005 are rigorous in affording a regime of both protection and review. Public funding for family members in both systems is rarely available and so they regularly appear unrepresented. This inevitably imposes an even greater burden on the offices of the Official Solicitor to ensure that those who they represent are fully protected. The enquiry into the extent and safety of ML’s detention in the Vale Hospital here was Judge led. It ought not to have been necessary for it to be so. The facts ought to have triggered, at very least, forensic curiosity. The Official Solicitor has provided, valuable assistance on the legal issues the case raises but the welfare investigation was, in my judgement, not sufficiently searching.
31. On the 10th April 2012 ML was kept in seclusion for 5 hours. That was unusual, but the records show that he was regularly secluded between 1 hr and 1hr 30 minutes.
That, if you missed it, was the Judge opening up a six pack of Whup-Ass. He was very unhappy about what the Vale had done, very unhappy that these awful facts came to light as a result of judicial investigation rather than had been presented directly to him, and was very unhappy that the Official Solicitor hadn’t found this stuff out.
The thrust was that “extinction theory” had been used on ML, with a view to when he was exposed to something he didn’t like and became aggressive rather than stopping the exposure, professionals would continue it and ignore the aggression, under the expectation that EVENTUALLY ML would learn that aggressive behaviour does not end up getting his needs met and he would move away from it as a strategy or technique. In practice, what happened was that ML got so aggressive that he had to be secluded, on one occasion for 5 hours but very often for about an hour.

This is what the Judge had to say about seclusion
32. ‘Seclusion’ is defined in the Mental Health Act Code of Practice
“15.43 Seclusion is the supervised confinement of a patient in a room, which may be locked. Its sole aim is to contain severely disturbed behaviour which is likely to cause harm to others.
15.44 Alternative terminology such as “therapeutic isolation”, “single-person wards” and “enforced segregation” should not be used to deprive patients of the safeguards established for the use of seclusion. All episodes which meet the definition in the previous paragraph must be treated as seclusion, regardless of the terminology used.”
33. Further features of the codes need to be highlighted:
“15.45 Seclusion should be used only as a last resort and for the shortest possible time. Seclusion should not be used as a punishment or a threat, or because of a shortage of staff. It should not form part of a treatment programme. Seclusion should never be used solely as a means of managing self-harming behaviour. Where the patient poses a risk of self-harm as well as harm to others, seclusion should be used only when the professionals involved are satisfied that the need to protect other people outweighs any increased risk to the patient’s health or safety and that any such risk can be properly managed.
15.46 Seclusion of an informal patient should be taken as an indication of the need to consider formal detention.
15.47 Hospital policies should include clear written guidelines on the use of seclusion. Guidelines should:
• ensure the safety and wellbeing of the patient;
• ensure that the patient receives the care and support rendered necessary by their seclusion both during and after it has taken place;
• distinguish between seclusion and psychological behaviour therapy interventions (such as “time out”);
• specify a suitable environment that takes account of the patient’s dignity and physical wellbeing;
• set out the roles and responsibilities of staff; and
• set requirements for recording, monitoring and reviewing the use of seclusion and any follow-up action.
So, having already established that seclusion is a last resort, should only be used for the shortest possible time and should not be used as part of a treatment programme or to manage self-harming behaviour, it was already pretty plain that it ought not to have been used on ML in this way.

It gets worse

35. Susan Freeman drew the hospital’s attention to what she considered to be inadequate padding to the door of the seclusion room. She is very experienced, she is, as is already evident from this judgment, forthright in her manner of expression. I should have thought that anyone hearing her views on this particular issue would have responded immediately and with some alarm. Astonishingly, and I do not use that word lightly, what followed was an email exchange that challenged the necessity of the additional padding largely on the grounds of expense. On one occasion ML knocked himself unconscious and on another may have sustained two black eyes. I say ‘may’ here because there is a possibility that the black and swollen eyes were the consequence of rubbing eyes affected by hay fever. ML is very resistant to physical examination and the Doctor who saw him was unable to come to a conclusion. Ms Freeman preferred the more benign explanation but with respect to her the proper course was to have remained open minded.
36. The fact of injury coupled with the frequency and the duration of some of the periods of seclusion is profoundly disturbing. The tardiness in responding to Ms Freeman’s concerns, (the padding was eventually rectified) and the reasoning behind the delay is to, my mind, unjustifiable. ML’s safety and his dignity were avoidably compromised. At the end of the case I heard from Mr Richard Mc Kendrick , the Chief Operating Officer of the Northamptonshire Healthcare NHS Foundation Trust. He had, I think, been present throughout most if not all of the evidence in this case.
37. He told me from the witness box:
“Hearing the evidence I share the concern expressed. I am very disappointed at the quality of care ML received at the Vale Hospital. I find it unacceptable. On behalf of the Trust I apologise to the L family for making mistakes and getting it wrong. In my experience, listening to and reading the evidence we should have been more proactive from the first point of ML’s head banging to ensure the seclusion room was safe and properly padded…. The whole circumstances of ML’s admission falls far short of the standards our staff and services aim to provide. I can only say the staff acted with good intentions but made mistakes. I apologise unreservedly on behalf of the Trust.”
38. Mr McKendrick went on in his evidence to state “I will take on board the lessons of this hearing to see that this does not happen again.”
39. That fulsome apology was well judged and nothing less would have been appropriate. When I heard it I asked BL for a response. He told me that he was ‘astonished’. He accepted it with dignity, though he commented that it was too late to afford him any reassurance.

 

In case you missed that, the Vale hospital who were secluding this young man because their use of extinction theory wasn’t working, in breach of the code of practice, didn’t have a properly padded room, and despite warnings that this was dangerous AND the young person injuring himself, did not resolve it because of cost issues.
[The Court weren’t dealing with any compensation claim on behalf of ML, though it appears to me that a lot of the essential ingredients are provided here. That decision not to resolve the padding on cost issues might turn out to be a very false economy]

Looking then, at the family’s objections to ML going into hospital, the Judge said this

40. BL feels that if ML goes into care at Bestwood for the lengthy period (18 – 24 months) contemplated, it will, because of his Autism, weaken his relationship with his family, who he does not respond to well out of the context of the home environment. It is distinctly possible he will not want to see them in hospital. If his behaviour were to deteriorate, as it did following the Vale admission, he would potentially be entirely unmanageable in the community (as Ms Freeman already feels he is) and there would in effect be no way back. ML would have lost the delicate security of the present status quo and be consigned to permanent institutional care. For BL that heartbreaking prospect is simply too great a risk.
41. I hope I have done proper justice to BL’s primary arguments. It is not difficult to see how in the light of the painful experience that Mr McKendrick has now acknowledged BL should be so deeply resistant to the care course planned. No parent or compassionate individual could fail to have anything other than profound sympathy for him and his wife.
To be quite honest, I would have stopped there, invited the Trust to devise a care plan that would support this young man at home and in his Day Centre, and made no deprivation of liberty declarations. I really wish that the Court had.

42. My responsibility is to identify what is in ML’s best interest, mindful that the course proposed by the Applicants undoubtedly, as all agree, amounts to a deprivation of liberty. As the Supreme Court has recently restated P (by his litigation friend the Official Solicitor v Cheshire West and Chester Council and another; PQ (by their litigation friend, the Official Solicitor v Surrey County Council [2014] UKSC19, “human rights have a universal character”. In determining best interests, I must be careful here to focus on what is right for ML by independently and dispassionately evaluating his personal situation. BL’s perception of best interests is relevant only in so far as he is a crucial component of any plan and as such any plan which has his whole hearted support is more likely to succeed. But BL’s views have no further weight than that. (See subsection 4 (7) (b) of the Mental Capacity Act 2005 which imposes an obligation to take into account, if it practicable and appropriate to consult them, the views of anyone engaged in caring for the person or interested in his welfare).
43. The forensic process in this court has not permitted any witness to seek refuge in any particular professional ideology. It has kept an intense focus on ML and what is right for him. In the end the picture that emerged is an amalgamation of the views, contributions and experiences of all the professionals, from the varying disciplines and, of course most importantly from the parents. As BL recognised there was ultimately a professional consensus, though not one to which he could subscribe.
44. The key milestones to my conclusions are as follows:
i) ML at 25 will at some point need to be afforded the opportunity of independent living, which will always require a support structure to underpin it. His parents will not be able to care for him for ever;
ii) It is important that any move is planned and not the result of crisis, either in ML’s behaviour or in his parents’ health or general situation;
iii) There is, when analysed, a consensus that ML has greater potential than his present situation is enabling him to realise;
iv) The objectives of any regime of care ought to aspire to the goal of achieving independent living.
v) That goal (iv) may not always mean that ML’s personal happiness is given priority; integral to improvement is challenge which by definition is not easy;
vi) ML has a strong relationship with his parents, sibling and other key figures in his life. This relationship with his loving and committed parents has given ML a template from which to forge other relationships, as has been seen at the NAS Day Centre. All agree that this capacity is a very encouraging prognostic indicator of ML’s capacity to develop strategies that will equip him better for independent living;
vii) It follows from (vi) above that in addressing the balance of risk in terms of likely outcome at the Bestwood Centre the preponderance of evidence is optimistic. This is of crucial importance when determining whether to retain the status quo or not;
viii) Bestwood is a quite extraordinary resource. It is regarded by all the experts as a centre of excellence. It is finely tailored to the needs of those in ML’s circumstances. BL makes a very telling acknowledgement that if it were convenient to their home, so that they could call in frequently, he would now be supportive of it;
ix) Bestwood is highly sought after by many patients, it is an expensive resource that rarely becomes available. It follows that if ML were moved in crisis it is highly unlikely to be available. Indeed this may be ML’s only chance to gain access to such provision;
x) Whilst the Vale Hospital was not best equipped to manage the ‘extinction burst’ approach, predicated on exposure to stimuli, Bestwood is streamlined to put it in place and fully equipped to do so. I am persuaded that such approach is the correct one for ML.

45. I am satisfied that it is in ML’s best interest to have this opportunity. There is no guarantee of success of course and I fully understand the parents anxiety. I have been struck by how similar their concerns are to the fears of every parent whose child leaves home on the first steps to independent living. I don’t intend in any way to trivialise the issues here by that observation nor to underestimate the impact of their bad experiences at the Vale Hospital. I say it because the sheer normality of their reaction signals to me that ML like any other young man is entitled to the opportunity to fulfil his potential, it is the opportunity and not the outcome that is his right. I would be failing to respect his personal integrity and autonomy if I did not afford him this chance. I hope BL and EL will embrace it.

 

[I don’t think that the Judge got this wrong, in an analytical sense, but I wish from a human perspective, he had reached a different conclusion]
There followed a very technical argument about the precise legal framework (basically, the Mental Health Act trumps the other regimes if it is accessible, so that was the regime that happened here). The Judge was obviously mindful that under the Mental Health Act, ML’s family could oppose detention under the nearest relative requirement and that an application MIGHT be made to displace them as nearest relatives.
83. For this reason I propose to take an unusual course. As I have foreshadowed above, any application to displace the nearest relative is to be reserved to me (upon the relevant authorisation to sit as a County Court Judge). I also propose to release this judgment to the President of the First Tier Tribunal with an invitation to him to allocate a judge of the First Tier to hear any applications in this case, to ensure judicial continuity. I will provide that a copy of this judgment follows this case.

Finally, there were some general case management observations
84. By way of a postscript I would add that I am delivering this judgment in early May having heard evidence and submissions in late February and early March. To accommodate the hearing of this case it was necessary to sit long hours and to overrun into the following case. No time was allocated to read the extensive papers in advance. Two volumes of authorities were presented in closing submission, and no time at all had been allocated to reflect on the submissions to write the judgment or to reflect on the submissions.
85. The consequence is that this judgment has been delayed to a degree that I consider to be quite unacceptable for ML. Those who practice within the Court of Protection must understand that it is part of the responsibility of the lawyers to ensure that there are realistic time estimates given to the court. The instinct to underestimate the timescale of a case in order that it might be heard more expeditiously is misconceived as this case certainly has proved. I make these observations because this case is far from an isolated example. That said I have received invaluable assistance from all Counsel to whom I am extremely grateful.

 

Lucy Series over at The Small Places has written about another case where the vulnerable person has been very badly let down by professionals

https://thesmallplaces.wordpress.com/2014/05/16/another-local-authority-behaving-badly/

and I agree with everything that she writes there. I am do not feel that in either case, quite enough attention went on what could be put in place to care and support these people living in their own homes rather than in institutions.

A Re B type judgment is overdue in Mental Capacity cases, that would put the emphasis squarely on making things work at home if at all possible.

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