TG was an incapacitated 78 year-old man who suffered dementia and some cognitive impairment. He had been resident in a care home in the LLBC area but the placement was terminated by the home following a breakdown in the relationship with JG and KR his daughter and grand-daughter. Before TG could be offered an alternative, he contracted pneumonia and was admitted to hospital. Whilst he was in hospital there was a dispute between LLBC and JR and KG as to TG’s future care. LLBC did not consider that it was in TG’s best interests for his daughter and grand-daughter to provide care for him at their own home. Before the placement at a new care home could be arranged by LLBC, JG and KR, went to the hospital and TG was discharged into their care. LLBC made a ‘without notice’ application to the High Court for an order to achieve TG’s transfer to the chosen care home. JG and KR were give ‘liberty to apply’ to have the order varied set aside or discharged. No application was made and the transfer of TG to the care home took place as required by the order. Further hearings took place at which regular reports were received about TG by the court. Recommendations were made that TG spend time with JG and KR for short periods and it was accepted at the conclusion of the proceedings by all parties that it would be in TG’s best interests to be cared for at home by KR and JG. Because KR and JG lived in a different area another local authority WLBC became involved and were party to discussions on TG’s future care needs.
The case before the High Court centred on the dispute about the need for LLBC to make the ‘without notice’ application which required TG to be placed in a care home rather than be allowed to be cared for at home. JG and KR brought proceedings against LLBC on this basis as well as a claim for breaches of TG’s Article 5, 6 and 8 rights under the ECHR.
The basis for LLBC’s application for the order contained several strands. Firstly, that a mini-mental state examination had not been conducted on TG owing to the defendant’s conduct. Secondly, the defendants accommodation was unsuitable (a one-bedroom flat) and they were feeding him inappropriately in light of his diabetes. Thirdly, his complex needs required a higher level of care than could be provided for by JG and KR. LLBC also claimed that the placement had been terminated by the care home due to abuse and threats made to staff by both JG and KR. It was also suggested by LLBC that there was impropriety by KR and JG in relation to TG’s finances and they were misappropriating his funds for their own benefit. In conclusion, LLBC had considered he was at risk of ‘serious harm’.
The court examined the issues raised by LLBC. It found that several of the assertions were not supported by sufficient evidence to satisfy the court. A mini-mental state had in fact been carried out whilst TG was in hospital and there was no evidence to suggest that the defendants had prevented an examination taking place. Social Services had failed to communicate effectively with the defendants whilst TG was at the first care home and failed to attend a meeting at which a decision was to be made about the future of TG’s placement. The court was critical of this failure and commented that better communication between all parties concerned might have avoided termination of the placement. Given the weight which LLBC placed on the difficulties in working with the defendants the court found it regrettable that no evidence was produced from the first care home. The court was also critical of the failure of social services to carry out a carer’s assessment in relation to the defendants becoming full-time carers for TG. Again it appeared that this may have been due to poor communication between the local authority and the defendants as to what was involved and why the assessment was needed. It acknowledged that a failure to communicate could involve a failure to receive information as well as a failure to achieve effective transmission. LLBC should have a made a genuine and reasonable attempt to carry out a full assessment of the capacity of the family to meet the needs of TG in the community. This was a significant failure on the part of the local authority.
Other failures by LLBC included failing to attend a pre-discharge meeting when TG was in hospital, mistakenly asserting that the defendants lived in one-bed roomed flat when in fact it had two bedrooms, and failing to fully discuss the issues surrounding TG’s Diabetes and his diet. There was a duty on social workers to check the detail on important facts before making them part of their case in proceedings particularly when a ‘without notice’ application was made on their behalf. Had the court of first instance been aware of some of these failures, in the opinion of the High Court, a ‘without notice’ order would not have been made. It was also apparent that the defendants had not understood the implications of the phrase ‘liberty to apply’ in relation to the order made which meant that they could have gone back to court to seek to have the order changed before it took effect. The court accepted some of the blame for the use of such terminology and for not always following the guidance in making without notice applications where relief was sought on an emergency basis to protect vulnerable persons. Making a ‘without notice’ order was a Draconian step and the court should be slow to make such an order unless a “clear and particularised account of events leading up to the application” was made together with an explanation of why the application was made without notice. B Borough Council v S followed. The court made the point that in future cases the term ‘liberty to apply’ should be stated in plain terms to ensure clarity for those involved. LLBC was also unable to substantiate the allegations regarding the defendant’s financial impropriety the court considered that it was unable deal with the matter. Nor could LLBC substantiate its assertions in relation to the defendant’s ability to provide an acceptable standard of care.
In relation to the alleged breaches of TG’s human rights, the court took the following view:
Article 5 was not engaged and though there may have been some restrictions on TG’s liberty these were normal restriction which applied to all residents. There were no restrictions placed on his family for visiting and TG was content to live there. The fact that some family members objected to the placement was not sufficient to alter the character of circumstances which would not otherwise amount to an Article 5 detention. The allegations in relation to the justification for detention and the procedure adopted were contingent on their being an Article 5 being engaged and therefore failed. The Article 6 claim that the OS had not been impartial or independent also failed for the same reasons, though comment was made on the difficulties faced by the OS when faced with situations where at the early stages of proceedings most of the information was held by the claimant local authority. The court also pointed out that under the MCA 2005 the incapacitated subject of the proceedings would not always be made a party to the proceedings and “it was for the court to establish an appropriate practice as to his or her representation and status in the case”. Although Article 8 was engaged the interference with TG’s private and family life was justified. It was accordance with the law for the protection of TG’s health and necessary and proportionate given the defendants refusal to engage with statutory services.
The proceedings were justified on the basis that TG did lack capacity and there was a legitimate and reasonable dispute between the local authority and some family members as to TG’s best interest. However, the without notice application was not justified nor the orders to take TG to a care home even though even if a ‘with notice’ hearing had taken place the likely outcome may well have been that TG was placed in a care home on a temporary basis due to the lack of co-operation and confrontational approach of KR and JG. There were failures on both sides to communicate. On the one hand a failure by LLBC to transmit information adequately correctly or at all and a failure by JG and KR to make themselves available to receive any communication. The court acknowledged the difficulties encountered by the professionals involved in engaging the defendants but was optimistic that the new local authority would ensure that effective future working relationships were essential in maintaining TG’s best interests so that there was ”a clear understanding in future that both side must be entitled to raise or say what they want and for the other to listen and take on board what is said.” WLBC had undertaken to put in place agreed lines and protocols for communication so that all parties understood their responsibilities. A failure of parties to communicate was in the opinion of the court the only thing that could jeopardise TG’s best interests.