Gosh, it’s been ages. Not been any juicy cases to write about, as the big beasts of the High Court are all on holiday, but this is an odd one.
It is a Court of Protection case, involving a woman who lacked capacity and whether she should be transported back to her home country of Colombia, interminable wrangling about the costs of transporting a wheelchair, a Court hearing where nobody shows up much to the Judge’s chagrin, and an eventual description of the approach of the public bodies as ‘verging on petulant’ with costs orders following.
London Borough of Lambeth v MCS & Anor  EWCOP 14 (31 August 2018)
- The documents do not reveal a clear picture, but it appears at least likely that P may have been ready for discharge in 2014; self evidently by the date of P’s assessment on 9 January 2017 P was clinically stable and ready for discharge. In fact I am certain that those conditions arose much, much earlier. It should be recalled that the original application to the Court (made by P’s RPR) was itself an application dated 20 December 2016, challenging P’s deprivation of liberty, pursuant to section 21A of the Mental Capacity Act 2005, made out of frustration because, despite the local authority and the Lambeth CCG supporting P’s wish and desire to return to Columbia, they had simply failed to progress it. “Support” has always been offered, and is still, but when something concrete had to be done, they have been found wanting. Even with the institution of proceedings, it has taken a year to achieve what should have been organised much, much earlier, and significantly, proceedings should have been, and were, unnecessary; all of this could and should have been achieved outside any application.
Bear in mind that this woman was ready for discharge in 2014 and the unit she was in was costing £2,000 per week, there ought to have been at the very least a financial incentive to move this along and get her back to Colombia where she wanted to be. It has cost nearly a third of a million pounds to keep someone in a place where she didn’t want to be, when she could have gone back to her home country.
(Having been rebuked on Twitter during the World Cup for conflating Columbia – the city, with Colombia the country, I am spelling it correctly during this piece, although the judgment does not)
The Judge captures the human misery of this awful situation very well.
- There has never been any formal provision supporting P’s need for Spanish speaking staff, which at best has been provided on an ad hoc basis. P is distressed by receiving care from people who cannot speak Spanish, this has happened almost every day, several times a day, for over 3 years. It takes very little imagination to consider how additionally miserable and isolated she must have felt. Reports describe her as distressed, feeling like she is drowning, feeling scared, complaining of pain, each impacting severely on her everyday wellbeing.
- Having now had several hearings (in an application that itself was, or should have been, as I have said, unnecessary), I can only begin to imagine P’s sense of frustration and loss at being kept here for years against her wishes, and for no good reason. As even the proceedings have demonstrated so fully, the arrangements could and should have been established and implemented long ago, years ago, but because of disorganised, muddled and unfocused decision making, and what has at times verged on an arrogance, P has just had to wait. It should be remembered that P had been kept here against her wishes, at a cost to the taxpayer of over £2,000 per week. If the authority had done what it should have done in a timely professional manner, not only could they have saved themselves over £100,000 a year, and saved the cost to the taxpayer of these protracted High Court proceedings, they could have avoided P the years of misery from being kept a prisoner here, against her will.
Some of the hearings in this case were just a debacle
- At the hearing on 16 November 2017, very distinct progress towards repatriation had finally been achieved. Frustratingly, there were however, still significant details missing, not just an interim plan if there was a delay, but there was no detailed transition plan. I have seen some of the documents in relation to this and they are depressingly scant; frankly, they are unedifying. I entertained the hope, since the remaining matters seemed really very straightforward, that it might even have been possible to agree a draft order encompassing the transfer to Columbia and the deprivation of liberty involved in that move. Accordingly I felt able to make qualified declarations (including being transported to Columbia). But a detailed and realistic transfer plan was obviously still necessary. A proposed draft transfer schedule was provided for that hearing, but it was a poor document lacking any detail, proposing transfer on 20 December 2017.
- In view of the history, the shocking history, I made provision for a “long stop” hearing on 13 December 2017 whilst sitting on circuit (hoping still to retain the transfer date of 20 December 2017). I do not think I ever received a position statement from the applicants, who attended by new counsel, who had been inadequately instructed. No one from the applicants, CCG or solicitors had the courtesy to attend. To say this was unfortunate (leaving aside any other issues) is an understatement. No transfer plan had been filed, and important missing detail prevented any progress being achieved. No one appeared to be qualified to make what in some instances were trifling decisions involving a few hundred pounds, e.g. innumerable communications occurred over the provision of, cost of, source of, import duty on, or who should pay for the transport of a wheelchair so urgently required by P, far, far exceeding the cost of the chair itself. Information was given to the Court in relation to, for example, the air ambulance, which subsequently appeared to be wholly misleading and totally without foundation. The approach taken was unhelpful and, at times, verging on petulant. Despite my best efforts it appeared to reflect a deeper, most unfortunate perspective that has, from time to time, permeated these proceedings. In any event, as I say, no one had the courtesy to turn up, so nothing constructive could be achieved at all. Yet again the case was listed for hearing on 19 December 2017, making detailed and contingent directions.
- At that hearing, absolutely astonishingly, I was told that, whilst the CCG had approved funding for P’s flight to Columbia, it had arranged its meeting inter alia in relation to the cost of transporting the wheelchair and any import duty in Columbia (see above) for 20 December 2017, the following day – apparently those concerned were rather busy with other meetings. An additional issue concerned the provision for the cost of any care if P was taken ill on the flight; who would pay, was it possible to obtain insurance? The authority, in common with its actions before and since the institution of proceedings, conducted itself without regard to anything else, certainly not the welfare of P, and yet further evidence that the institution of proceedings had had no effect. They have had no regard to Court orders, or the involvement of the Court. This hearing occurred just a day short of the first anniversary of the issue of proceedings, and still the simple goal seemed a mile away.
Bear in mind that the unit was costing £2000 per week, and that the hold-up was the cost of flying a wheelchair that she needed out with her, this is just crazy. Even if you paid for the wheelchair to go first class, that’s just 2-3 weeks of the unit. And as the Judge rightly noted, it would surely have been cheaper (even ignoring legal costs) to have just bought a wheelchair in Colombia and avoided the flight costs.
- Finally, on 15 January 2018, it was possible to approve a final order. Contrary to previous occasions when either no one attended, or those present had not obtained delegated financial responsibility, on this occasion, what should have occurred much, much earlier, probably years ago, was obtainable, and significant assurances and undertakings were forthcoming for the provision of care in the unlikely event P was taken ill in transit and required hospitalisation en route. All that should have occurred several months earlier and it is entirely symptomatic of the malaise which has beset these proceedings from the outset. For which P has been the unhappy victim, and the Applicant entirely responsible.
- P left the UK on 25 January 2018 by air ambulance. Her move is described thus:
- “The move went very well. There were no health concerns en route. P remained calm, restful and slept during the journey. The ambulance crew were extremely impressive and efficient. The doctor could speak Spanish. Upon arrival P “recognised many of her relatives and smiled all over her face.””
Finally, a happy ending to a tragic story.
- I set out a summary of these unhappy proceedings, not just because they should not have been necessary, but to highlight the very deeply frustrating and disorganised thinking, planning and management within the authority. As a result a vulnerable adult has been kept unnecessarily miserable against her will, confined in an environment for much longer than was necessary. In my best estimate, for 3 years.
We need to look at the system as a whole and ask ourselves why local authorities aren’t punished harshly when in breach/contempt of court orders, teach them a lesson. This is across the board, they will continue to believe they’re above the law until someone faces a hefty fine or jail, like anyone else who does the same
I cant agree with you more. My son’s LA can break every rule and law there is, they can lie and fabricate, always to my son’s disadvantage, without anyone (except me) even noticing. My son’s only recourse is a judicial review against the LA brought to Court by him personally’ His only income is his benefits.. Legal aid (even if it were available) is a travesty, like the LA legal aid lawyers are answerable to no-one.