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.