Transcript 2011

LEGAL UPDATE
MCA /DOLS /CoP
PETER EDWARDS
Peter Edwards Law
Ventura House
Market Street
Hoylake CH47 2AE
0151 632 6699
[email protected]
November 2011
PETER EDWARDS
•
•
•
•
•
•
•
Director of Peter Edwards Law
President Mental Health Lawyers Association
Nominated Mental Health Lawyer of the Year 2007
Director of IMHL and Peter Edwards Law Training
President of mental health charity; Imagine
Teacher and Broadcaster
Past Appointments:
–
–
–
–
–
–
–
–
Consultant to Solicitors Regulation Authority
Legal Consultant WHO
Member of World Federation Mental Health Human Rights Committee
Law Society Chief Assessor MHRT Panel
Member of Central Policy Committee of MHA Commission
Vice Chair Law Society Mental Health and Disability Committee
Member NACRO Advisory Committee
Member of MIND Council of Management
peteredwardslaw.com
•
•
•
•
North West of England / Midlands / Wales
Solicitors also based in London / Nottingham
Court of Protection and EPA’s / LPA’s
MH(R)T’s and Managers hearings
–
–
–
–
Human Rights
Treatment issues
After care and 117
High Court challenges
• Community Care Law
• Right to assessment and services
– Representing incapacitated clients
• Inquest Law (deaths of patients)
• Legal advice to local authorities and private
organisations
CONTACT
WCC v GS (2011) EWHC 2244
(Ct of P), 15.07.11, DJ Marin
Issue
• Is contact between an elderly mother and her
son was in her best interests, and
• to what extent a fact-finding hearing was
necessary, particularly when the son was
unrepresented.
Facts
• GS was 83 years old and had a diagnosis of
dementia of probably Alzheimer‘s type.
• She also suffered from arthritis and Type II
diabetes.
• Approximately 6 years ago GS and her son RS
bought a ground floor flat in sheltered housing,
and RS became her main carer.
• However, there were concerns about the
general state of cleanliness of the flat, noted as
being cluttered and unhygienic.
• It was also discovered that GS had been
sleeping on a mattress on the floor.
• In 2010, GS became hypoglycaemic and had
chronic renal failure.
• This led to cellulitis and sepsis due to a
diabetic-related foot ulcer.
• She was admitted to hospital acutely confused.
• She had part of her toe amputated as a result of
the necrosis.
• There were severe concerns that RS was no
longer able to cope with GS’s care, and that
she was suffering neglect because he was
unable to meet her needs.
• On discharge, it was plain that GS could not
return home.
• A care home close to the flat belonging to GS
and RS had no vacancies and in any event
could not provide the high level of care
necessary.
• GS was therefore discharged to a high
dependency dementia care home.
• She was non-weight-bearing, requiring full
support with all transfers, and mobilised with a
wheelchair and/or a Zimmer frame.
• GS’s other son JS agreed that it was in her best
interests to continue to reside in her placement where
she was settled and appeared happy.
• His brother RS strongly disagreed.
• RS’s behaviour had been of great concern both to
staff at the hospital to which his mother had been
previously admitted, and to staff at her current
placement.
– He would arrive in the early hours of the morning, had
followed nursing staff home, and interfered with the care of
other residents.
• A serious incident in July led to all direct contact being
withdrawn.
– RS had ‘trashed’ his mother‘s room, upset residents,
threatened staff, and deliberately set off the fire alarm at the
care home.
• BIA DOLS assessment - for SA specifically
recommended reduced contact between RS and his
mother, and ultimately the cessation of contact.
Outcome
• It was not necessary to have a lengthy and costly factfinding hearing in relation to the various allegations
made against RS because he accepted a sufficient
number of the allegations to justify the restrictions in
contact sought by the LA.
– Note: in order to justify any interference with the Article 8
rights of P and their family member, LAs will need to seek a
ruling on the facts in cases where there are strong
denials of allegations made upon which restrictions of
contact are based – as per Mr. Justice Hedley in LBB v JM,
BK and CM, Court of Protection, 5th February 2010.
• It was plain that RS had mental health issues and
would benefit from help and support, albeit that he
was reluctant to engage with professionals.
• The starting point when considering an incapacitated
person’s best interests in terms of contact was that
the person was entitled to see their family on an
unrestricted basis.
• Thus, GS should be entitled to see her children.
• That premise was independent of any right of the
family member under Article 8 to see their relative.
• Conditions should only be imposed on that contact if
the incapacitated person‘s best interests
demanded it.
• In the present case, a consideration of GS’ best
interests included the need to ensure her safety and
wellbeing during contact by restrictions being in place.
• Any conditions imposed must be reasonable and
proportionate having regard to their aim and purpose
and the context of the overall situation.
• In some cases conditions will be necessary to manage
every step from the arranging of the visit to the
departure of the family member from the home.
• Often, the dates and times of visits will need to be set
out clearly in a contact schedule.
• When conditions existed, regular court or LA
reviews would be required.
• A plan may be required to address problems in order
to accommodate the family where, for example, a
member could not attend on the appointed day due to
an emergency.
• Further, LAs and Trusts should consider whether
financial assistance should be made available to a
relative to enable them to travel to and from a care
home.
• Where it is in the best interests of P for all contact with
a family member to be supervised, a contact
schedule should make it clear who is to supervise and
what level of supervision is required.
• In severe cases, visits may require detailed notetaking by an independent person, whereas a cursory
check-up by a staff member may be sufficient, or the
allocated social worker may attend to keep a watching
brief.
• Dependent on the circumstances, the record of the
visit may need to be extremely detailed, or a note
simply that that the visit passed without incident.
• There should be a right included in a contact schedule
for the home or contact supervisor to cancel the visit if
appropriate, either before the visit or during it, and
there should be the ability to shorten or lengthen a
visit if it is potentially distressing for P or they are
unwell.
• Conditions may also be required to regulate a
family member‘s behaviour to ensure that
neither P, other residents, nor staff are
harassed.
• It may be necessary to make clear which point
of entry and exit to and from the care home is
acceptable, the fact that other residents should
not be interfered with, or what food and drink is
appropriate for P, as well as clarifying the
specific venue within the home for contact.
• In the circumstances of this case, it was in GS’s
interests for direct contact with her son to be
reintroduced, although stringent conditions
were required to ensure her safety and wellbeing and to protect other residents and staff.
• Further, the medical evidence suggested that
an end of life plan should be put in place for
GS, as she might deteriorate quickly.
• Except in exceptional and rare cases where the
level of harm or potential for harm caused by a
family member against a vulnerable person is
sufficiently severe, at a person‘s end of life
even members of a family who had been
excluded from contact should be able to spend
time with their parent or relative.
THE COUNCIL v (1) X (BY HER LITIGATION FRIEND
THE OS) (2) Y (3) Z (2010) CofP (King J) 9/11/2010
Issue
• Not in the best interests of a 94-year-old
dementia sufferer for her to have direct contact
with her daughter,
• daughter's behaviour during contact was
‘unhelpful and distressing’.
• The applicant LA applied for a declaration that
contact between mother (X) and daughter, the
(Y), was not in her best interests.
• X was a frail 94-year-old who suffered from
mobility problems and dementia.
• She lived in a care home.
• At a previous hearing the court had declared
that she lacked the capacity to make decisions
about, among other things, the contact she
should have with others.
• It made provision for supervised contact between X
and Y, having heard expert evidence that Y showed
little tolerance of X's disorientation and that her
behaviour during contact often caused X distress.
• Though the court had hoped that the quality of the
contact would improve with supervision, that had not
proved to be the case.
• Contact had eventually been suspended when Y was
banned from the care home after having been violent
and aggressive towards staff members.
• The police were required to attend as Y refused to
leave the premises.
• The LA could find no other suitable venue for
supervised contact, and the expert evidence before
the court was that contact with Y was not in X's best
interests.
Held
• Direct contact between X and Y was not in X's
best interests.
• No matter who supervised the contact, Y would
in all probability rapidly fall out with them and
her behaviour would deteriorate.
• If the Judge believed X could make the journey
or that contact was otherwise in her best
interests, she would not have let the
practicalities deter her and would have held the
matter over for other options to be explored by
the LA.
• Indirect contact would be made available and it
was to be hoped that Y would take it up
Woman's plea for more access to disabled sister rejected by
judge, The Independent, 1st October 2011
• A sister's long and bitter battle to see more of her
severely disabled sibling suffered a devastating blow
yesterday when a judge ruled that a LA-selected
nursing home provided the best possible care.
• The 63-year-old claimed she was being slowly cut off
from her elder sister – who suffers from multiple
sclerosis, related dementia and paranoid
schizophrenia - by bullying staff who wanted to reduce
her visits to just 30 minutes a week.
• In court, the pensioner, who can only be named as
HN, pleaded for her 68-year-old sister FL to be moved
to a home closer to her in London so she could see
her more often.
• Hampshire County Council argued that it was, in fact,
HN who was confrontational and threatening to staff.
• It said she was a serial complainer who was so
controlling that she was unwilling to accept
professional opinion.
• Moving her disabled sister from where she had lived
for eight years, they argued, could have devastating
consequences and would only provide a fresh
battlefield for disagreement.
• The case provides a rare insight into the tortuous
decisions faced every day by the Ct of P, Britain's
most secretive court which oversees the wellbeing of
vulnerable people deemed not to have the capacity to
make their own choices.
• It has remained strictly out of the public eye until a
legal victory by The Independent last year.
• Yesterday, in another legal breakthrough for the
media, DJ Ralton allowed contemporaneous
publication of a previously private
case:
– "I think it is important for the country as a
whole to understand the dilemmas that can
be faced by families, LAs and persons
concerned with someone's best interests, to
understand the tremendous responsibility
imposed on the Court of Protection in having
to make official decisions,"
– "It is a balancing exercise the court has to go
through and agonising thought goes into
making a decision."
• After an acrimonious and heated four-day
hearing, Judge Ralton found in favour of the LA.
• While he assessed that the sister's passionate
fight for her sibling was well intentioned, he
found that it was misguided and exceeded
"constructive criticism".
• He said HN had become so obsessed that she
refused to accept a "plethora of independent
opinions".
• "If I could be confident there was a real
prospect of a fresh start, that a
change of care home would be a cure to this
case, I would investigate further a change in
care home.
• But whoever provides care to FL would be
under exceptional scrutiny by HN."
• But he refused to increase restrictions insisting she be
allowed an hour a week.
– "I hope beyond hope that HN will conduct herself
with the right sort of decorum and that these visits
are successful."
• In emotional and often tearful testimony, HN said:
– "This has been very hard for me and I could have
given up a long time ago but I didn't want to give up
on my sister.
– I have tried to protect my sister. That is all I have
tried to do."
DISPUTE OVER RESIDENCE
London Borough of Hillingdon v Neary & Anor
[2011] EWCH 1377, Ct of P, 9th June 2011
Issue
• Breach Article 8
• Unlawful DoL
• LA had tried to wear down father’s resistance,
Facts
• Stephen Neary was 21 years of age and had a
diagnosis of autism and severe LD.
• He required
– 24 hour care and support at all times for his own
safety and the protection of others, and
– 2:1 support when in the community due to
occasional aggressive and unpredictable behaviour.
• Following his parents‘ divorce in 2009, his
father became his main carer with assistance
from professional carers on a daily basis.
• In December 2009 Steven was taken into
respite care for a few days when his father was
unwell and exhausted.
• When Mr. Neary requested that his son return
home, the LA refused due to concerns about
Steven‘s behaviour and weight gain.
• In April 2010 Steven escaped from care and
broke the glasses of a member of the public.
• He was taken to a positive behaviour unit, and
an urgent authorisation under the DOLS
procedure and three subsequent SAs were put
in place (about which his father was not
informed).
• Hillingdon planned to send Steven to a longterm placement outside London, and one such
placement would have required his admission
under s.3 MHA 1983.
• Mr. Neary then brought Ct of P proceedings
contending that his son was unlawfully DOL.
• 7 months later the Court made an interim
declaration that it was in Steven‘s best interests
to return home.
• In early 2011 a court order permitted media
reporting.
• The LA argued that it had had the right to keep
Steven in the support unit in his best interests,
that between January and April 2010 it had had
Mr. Neary’s consent to the placement, and
that Steven was not DOL.
• With regard to the period from April to
December 2010, it relied upon the series of
DOLS authorisations that it had granted to
itself as both MA and SB.
Held
• Most decisions about the residence of those lacking
capacity are made collaboratively between a local or
health authority and family members.
• Where there was a DOL, the statutory DOLS
procedure and DOLS Code had to be followed which
safeguarded P.
• The ordinary powers of a LA were limited to
– investigating,
– providing support services, and
– where appropriate referring the matter to the court.
• If it sought to regulate, control, compel, restrain,
confine or coerce, save in an emergency it had to rely
upon specific statutory authority for its actions, or
obtain the court‘s endorsement.
• Mr Justice Peter Jackson found that Steven
was DOL throughout the year at the placement
contrary to Art 5(1) ECHR, and that the DOLS
authorisations were flawed.
• He also found that Mr. Neary had not given his
consent to the placement.
• Hillingdon had tried to wear down Mr. Neary‘s
resistance, even though in fact he was right
about Steven‘s best interests, and it was wrong.
• It had failed to activate the statutory safeguards
that existed to prevent the situation arising.
• Hillingdon should have referred the matter to
the Ct of P, and it had failed to appoint an IMCA
for Steven until October 2010.
• It had also failed to conduct an effective review
of Steven’s DOLS assessments under Part 8
SchA1.
• The failings breached his right to a speedy
review by a court of the lawfulness of his
detention, contrary to Art 5(4).
• Further, the practical and evidential burden is
on a LA to demonstrate that its arrangements
are better than those that can be achieved
within the family.
• Further, LAs have the advantage over
individuals both in terms of experience and
funds, and so where an individual does not
bring a matter to court, the LA has an even
stronger obligation to do so.
• The obligation on the state under Art 5(4) is not
only to ensure that there is a mechanism by
which an individual may have the lawfulness of
his detention reviewed speedily by a court, but
to enable that review, and therefore Hillingdon
had breached that right.
• The Judge also found that Hillingdon had
unlawfully breached Steven‘s right to respect
for his family life, contrary to Art 8.
• Hillingdon had not:
– weighed the advantages and disadvantages
of Steven living at home as opposed to in the
care home, and
– no genuine and balanced best interests
assessment had been carried out.
• A SB under DOLS must scrutinise assessments
received by it with independence and particular care.
• LA had granted authorisations on the basis of
– perfunctory scrutiny of
– superficial best interests assessments,
– which were not legally valid.
• Jackson J. found that the DOLS process had been
used to justify Hillingdon‘s decision and as an
instrument of confinement, rather than as a
protection of the vulnerable person‘s liberty.
• The LA had relied on the DOLS authorisations to mask
the real DOL which had occurred, which had been the
refusal to allow Steven to go home.
• Welfare planning should be directed by the team to
which the allocated social worker belongs, with close
liaison with those running the support facilities.
• There had been a stark absence of decision-making
and/or disorganisation and a lack of willingness to take
responsibility.
• Hillingdon had provided a media briefing note in an
attempt to counteract adverse publicity which had
been full of contentious and inaccurate
information, and created an unfair and negative
picture of Steven and his behaviour, which Hillingdon
accepted in hindsight had been an error of judgment.
• The Council apologised to Mr. Neary and stated that it
had already made significant changes and was
currently reviewing its training for staff who dealt with
the MCA and the DOLS process.
• Declaration that Hillingdon Council had unlawfully
detained Steven Neary granted.
WHAT IS A DOL?
Cheshire West and Chester Council v P (by his
litigation friend, the Official Solicitor) and M,
[2011] EWHC 1330 (Fam), Court of Protection,
14th June 2011
Issue:
• Whether the care
arrangements in place
for P amounted to a
DOL or merely a
restriction upon him.
Facts:
• P was 38 years old and had cerebral palsy and Down‘s
Syndrome with a history of cerebral vascular accidents.
• He presented with significant physical and LD, and a
history of challenging behaviour.
• He lacked capacity to make decisions about his residence
and care.
• Until 2009 he had lived with his mother until her health
deteriorated and he was taken into emergency respite care.
• The day after a best interests meeting, an application was
made to the Ct of P by the LA and a number of interim
directions were made on the same day.
• In November 2009 P moved to Z House.
• At times care staff had to resort to physical
intervention and used an all-in-one body suit sewn
up at the front to prevent P from tearing off parts of
his continence pads and ingesting them, which
posed severe risks to P in terms of hygiene and
choking.
• This and other management was thought to amount
to a DOL.
• LA argued that the level of physical intervention in
P‘s case amounted merely to a restriction on P,
rather than a DOL
• 2 incidents had occurred in April and July 2010 which
had not been disclosed, one of which had required P to
be taken to hospital.
• Further, the LA had not disclosed all relevant records,
which required an adjournment of one hearing.
• At the oral hearing, staff indicated that diversionary
techniques were used before physical intervention or
restraint was used upon P, which would be used as a last
resort a few times each month.
• The LA had a ‘no restraint’ policy, and none of the staff at Z
House had received training in restraint techniques.
• The Judge continued the interim declarations
• However, a member of the Z House staff then
informed the LA that A, and at her instigation other
members of staff, had altered a number of records
concerning P‘s care and treatment.
• This included an incident report form relating to 2nd
April 2010 which had been re-written, and other
notes having been changed to omit references to P
attempting to hit members of staff and attempting to
remove his incontinence pad, and to a member of
staff holding him to stop him removing the pad.
• The actions led to disciplinary proceedings being
taken against A and other staff members, leading to
dismissal.
• M’s solicitor argued that an ISW ought to be
instructed and paid for by LA, given that it was clear
that P‘s care plan had involved physical intervention
and was thus a DOL.
• Costs were sought from the council for having
argued that the care arrangements had not been a
deprivation of P‘s liberty which had led to a hearing
on the matter.
• The council considered the instruction of an ISW
unnecessary, and the OS made an application for
permission to instruct such an expert, which was
granted, with the issue of costs reserved.
• The ISW concluded that it was in P’s interests to remain in
residence at Z House and considered that contact between P
and M in M‘s home was in P‘s best interests.
• However, her view was that P‘s care package did not meet
his needs, and she made a number of recommendations.
• In her opinion, the level of restraint and physical
intervention required in P‘s case was greater than that
currently being provided.
• A further hearing was held and the matter adjourned to
consider whether agreement might be reached on the
appropriate amendments to the care plan.
• LA then drew up a new physical intervention policy, which
was ratified by its Departmental Management Team.
Held:
• It was held that the misconduct by staff employed by a LA
involving the re-writing of its records after a hearing had
seriously impeded the court process.
• M argued that the authority should be named, and LA
argued that to do so would risk identifying P.
• The OS was neutral on the issue.
• The Judge held that the public interest in holding public
authorities accountable for the actions of their employees
amounted to a ‘good reason’ for publishing the judgment in
an anonymised format whilst authorising the naming of the
LA in the judgment.
• He found that it would help to sustain public confidence that
the Ct of P
• There was little likelihood that naming the authority would
lead to the identification of P
• Did P‘s circumstances objectively amount to a DOL?
• Held that there were a number of features that, by
themselves, might suggest it was not a case of DOL, and
that P‘s life was made as normal as possible (which was a
factor that made it less likely for restrictions to amount to a
DoL, P & Q v Surrey County Council (2011) EWCA Civ
190).
• However, P‘s life was completely under the control of
members of staff at Z House, and he could not go anywhere
or do anything without their support or assistance.
• His occasionally aggressive behaviour and habit of touching
and eating his continence pads required a range of measures
to protect him, including occasional physical restraint and
the intrusive procedure of inserting fingers into his mouth to
remove bits of the pads whilst he was being restrained.
• Thus P was DOL.
• The removal of unhygienic pads from his hands and
mouth was plainly in his best interests and therefore
justifiable, but as a matter of fact and legal principle,
it would involve a DOL.
• Staff had a duty to ensure that the measures taken
were the least interventionist possible, which
required a regular reassessment of his circumstances
to see if there were alternative strategies that could
be adopted to meet his needs without involving
actions impacting upon his liberty, such as the use of
a bodysuit or an intensive programme of education
to teach and encourage P not to behave in ways that
required restraint.
• The Court further held that there must be regular court reviews and
not just LA reviews to comply with Article 5 to scrutinise the
circumstances and assess whether or not the circumstances amounted
to a DOL. A further oral hearing in the form of a review was to take
place later in 2011.
• On the issue of costs, Mr Justice Baker observed that the misconduct
of the LA’s employees in tampering with P‘s records had been serious.
• Although it had not been unreasonable for LA to contest the DOL, its
failure to disclose some relevant documents, and the attempt to
interfere with records had plainly lengthened the proceedings and had
amounted to serious misconduct.
• Thus the council was ordered to pay a substantial proportion of
the overall costs of the proceedings.
• Cheshire West & Chester was named and ordered to pay some of
the costs incurred by the other parties involved in the proceedings.