TQ (application for welfare deputyship) v VT (by his LF the Official Solicitor) and Birmingham Children’s Trust and Birmingham and Solihull CCG [2019] EWCOP 58

Hearing Date: 13th September 2019

Mr P had severe health problems requiring 24 hour care, due to Lennox Gastaut syndrome. Mr P’s family situation was a complex one; he had no family connections, and after an aunt who brought him up died when he was 12, he had been placed in a care home. There he formed an extremely close and valuable bond with one of his carers (Ms TQ).

When Mr P turned 18 the Council moved Mr P to a placement.  TQ, prior to P’s move, raised the issue of her having contact with P after the move, and signaled her wish to be appointed as the personal welfare deputy.

She was concerned about who would look out for him once he was an adult in view of his lack of family. She was very fond of him and wanted to continue to do her best by him.

This request was not actioned, for reasons that do not appear from the report: TQ’s contact with P ceased from 5 April 2019 until shortly after 28 June 2019.

TQ applied to the Court of Protection and the Court directed the parties to make enquiries of the Placement to ascertain whether, in the event that TQ’s contact with P was restarted the management would seek to terminate P’s placement.

Management confirmed that it would not terminate. At that point the Court found no reason to believe that P lacked capacity to make decisions about the contact he had with others and ordered that P should have contact with TQ at reasonable hours of the day upon TQ giving one hour’s notice of her wish to attend.

Eventually the proceedings were resolved and the public bodies concerned withdrew opposition to the application for welfare deputyship, and the only issue was a costs application because of what the OS saw as very poor practice on the part of those bodies, which we have set out in full (as did the judge) for the public’s general education and awareness raising:

12. A common concern throughout the evidence of all these witnesses was a lack of understanding of the principles of the MCA 2005 and the need for proper person centered decision-making in relation to P.

In addition, the Official Solicitor makes two specific criticisms of Ms Williams and Ms Fairgrieve. Ms Williams made an unsubstantiated accusation that TQ had failed to promote P’s best interests and had sought to conceal evidence for the purposes of supporting her case.

In addition, in her witness evidence at paragraphs 31 and 32 [G68-G69] Ms Williams highlighted contact that had taken place between TQ and P. In her description of TQ’s contact with P, Ms Williams sought to paint a picture that TQ’s contact with P had no positive benefit. Staff at Placement 1 had asserted that there was no distinct change in P’s expressions on either contact session. Deploying this evidence in the manner it was done in paragraphs 31 and 32 was as unfair to TQ, as it was to P, because Ms Williams did not highlight that it was a noticeable feature of P’s presentation not to show any emotion. The fact that there was no distinct change in P’s expression was irrelevant to whether he was enjoying contact.

13. Ms Fairgrieve made an unsubstantiated accusation that TQ had made the PWD application in order to gain some form of financial advantage.

The background to this allegation is that there has been no transfer to Placement 1 of P’s financial arrangements and his benefits continued to be paid to ER. Ms Fairgrieve asserted, without any foundation, that the failure to transfer management to Placement 1 was related to the action or inaction of TQ. In fact, TQ had no involvement in the arrangements for P’s financial affairs nor did she have any power vested in her to make changes so that Placement 1 could manage his affairs. This was entirely within the remit of the statutory bodies who did not make an application to the Court of Protection for appointment of a property and affairs deputy and allowed considerable drift in making arrangements for the appointment of an appointee.

14. Ms Fairgrieve’s written evidence also contained this statement [G54]:

The current home decided that it would be in the best interests of the defendant to end carer relationships with the former child placement and start adapting to his adult life. The defendant had to adjust to his surroundings, new staff voices, new smells and new touch or feel.

Introducing an old voice without the other senses will slow down the progress the defendant is making in his life as an adult to adjust to his current and indefinite home. The defendant will be confused as to why I don’t hear that voice so often and why in a different environment.”

15. In exchanges between counsel for the Official Solicitor and the Judge, the Judge described this evidence as “chilling”. The Official Solicitor agrees. Yet Ms Fairgrieve’s approach was consistent with that of the Trust. In Ms Williams’ first statement [G37] she stated:

Staff at ER (including TQ) were involved solely in a professional relationship with P. It is our expectation that professional relationships are time bound, have a distinct role and purpose and have some structure. The transition and handover of P’s care went smoothly. The professional relationship with staff at ER has therefore come to an end. P has settled well into his new home and has started to adapt to his adult life and new surroundings.”

16. In summary, the evidence of both Ms Williams and Ms Fairgrieve was that there was a need to bring the relationship between TQ and P to an end for no other reason than the pursuit of a “policy” that professional relationships are time bound.

17. The CCG clearly knew of this decision. In the statement of Helen Corish dated 20 June 2019 (but signed by Helen Jenkinson) she states:

2. Placement 1 staff have decided that it would be in the best interests of P to end carer relationships at the former child placement and start adapting to his adult life. P needs to adjust to his surroundings and new carers. It was agreed that contact with previous carers may slow down his progress in adjusting to his new life in his current home. This was the Placement 1 following his move. Transition plan was for staff from ER to be involved in the transition from ER to Placement 1. No plan in place following his move.”

18. The CCG, as the relevant commissioner of the placement, should not have allowed this decision to stand unchallenged. As a public body it was there to promote P’s ECHR Article 8 rights and also to promote his best interests. Even if it is correct that the decision was made by Placement 1, the failure of the CCG to challenge this decision represents, at the very least, acquiescence with it.

19. The pursuit of this policy was a fundamental flaw. It infected the decision making of Trust, the CCG and Placement 1. The pursuit of the policy resulted in the requirements of section 4 of the MCA being ignored. The policy was the only relevant factor that appears to have been considered in determining TQ’s relationship and role in P’s life following the move to Placement 1. It is generous to describe the pursuit of this policy as the magnetic factor as this suggests that other factors were in fact weighed in the balance. The policy became the only factor in determining P’s best interests on issues surrounding his ongoing relationship with TQ.

20. The pursuit of the policy by Trust and the CCG resulted in the section 4 assessment of best interests being closed to other compelling factors. One such factor was the assessment of TQ and her motives. There was no suggestion in the written evidence filed by the Trust and the CCG thatTQ had ever acted contrary to P’s best interests. However, as already highlighted, during the course of the evidence, TQ was subjected to accusations that she had not acted in P’s best interests and that she was motivated by desire for financial gain, and not by his best interests. These were unsubstantiated accusations. They provoked no response of open outrage from TQ. She was able to show a level of calmness to rebut the allegations and in so doing, remained focused on P’s best interests.

21. This application, of itself, shows TQ’s ability to act in P’s best interests. In making the application to be appointed PWD TQ has opened up for scrutiny by the court a number of matters which directly related to P’s best interests, his health and welfare. P has no family, no effective advocate, and no one to argue his “corner”. Despite the undoubted pressure that TQ must have felt when told that because her professional relationship had ended she could have no further contact or interest in P’s welfare, she persevered with this application. She has filled the role of his advocate champion with focus, determination and dignity.

22. As his key worker, TQ had the knowledge and insight of knowing P’s moods. For someone so profoundly disabled, his ability (however limited) to communicate with someone else is likely to have enhanced his life and possibly alleviated his frustrations. It appears somewhat cruel to him, given the quality of the relationship between TQ and P and her willingness to continue with that relationship, that these characteristics of the relationship formed no part of the process of best interest decision making.

23. If BCT, the CCG and Placement 1 had followed good practice and the spirit of the MCA 2005 (i.e. placing P’s needs at the centre of best interest decision-making), all the positive factors above would have been obvious to them. The evidence is clear that all were blinded to these qualities in order to pursue a policy which was entirely closed to the other factors relevant to P’s best interests.”

The Court allowed TQ’s application and commended her for her dedication and commitment to VT.

The Judge found the placement management simply applied its own or the BCT’s ‘timebound professional relationships’ policy, which did not sufficiently allow for the consideration of Mr P’s best interests.

The placement staff should have considered standards set out in the MCA, and the CCG should have challenged failure to do that.

The Children’s Trust suggested it “probably overstates things to describe the reservations about TQ’s role as being referable to a ‘policy’ on the part of BCT” but was instead a reaction to a specific set of circumstances it had not encountered before. With hindsight they said they recognised there could and should have been greater recognition of TQ’s role and what she had to offer P in terms of companionship and friendship. They acknowledged a broader analysis of section 4 considerations would have led to a greater degree of involvement on TQ’s part, during  transition and beyond, especially in the absence of family members of P’s own. They also accepted a tighter focus should have been applied to the best interests decision-making process in this case, in conjunction with the CCG and Placement 1.”

The judge said that the BCT had rather minimized the complete absence of records of best interests decisions by reference to the amount of other records which were made.

The court said this of one witness:

“She presented as rigid in her thought process, guided entirely by her belief that it was inappropriate to blur the boundaries of professional carer and friend in any circumstances, referring to TQ as “holding all the power and P as not any”, despite agreeing TQ had never misused that power.

The CCG (which had presumably taken over responsibility for the man when he became 18) initially contended that it was solely the decision of the provider, Placement 1, on the question of contact.

Of that provider’s witness, the Court said this:

“Despite admitting there had been no assessment of capacity in respect of contact she said her Operations Manager, Samantha Kilia, made the decision that as TQ’s role as a carer had come to an end and she was not a relative it was “a nonsense to say she could visit”. She supported her manager’s decision. She was asked how that policy decision placed P at the centre of a best interests decision and responded it was a safeguarding risk. She said she and her manager assessed her as being a risk “because she is not a relative”. Although she was aware TQ had taken him on holiday she did not regard that as altering the fact her role was professional and had come to an end.”

The CCG It accepted they should have taken a more robust approach to seek to influence the decision of Placement 1 as one of the bodies involved in the decision making under the MCA once aware after 11 June 2019. It accepted a best interests meeting on contact should have taken place in light of the decision to stop contact and all three bodies were responsible for arranging such a meeting.

The judge also said this:

“To fail to consider the benefit to P of TQ spending time with him, helping to stimulate him, feed him, talk to him and to show her genuine care of him, when he had no other single person in his life who was willing to do that, outside of a professional relationship  which had commenced in 2018 or 2019, was bewildering and shocking. The very fact that P is quiet and shows little reaction to those around him highlights the importance of him being afforded quality time by someone who cares for him when his needs might otherwise be overlooked in an environment where others might demand more attention by being more vocal. I have set out the submissions made by the OS in this regard in full as I accept them in their entirety. Each point is well made and accords with the view of the Court.

…  TQ’s application highlighted serious flaws in the procedures and practice of the CCG, BCT and Placement 1 in complying with the MCA 2005. Only if there is good practice can we trust our agencies and professionals working within them to deliver satisfactory standards of care to some of the most vulnerable people in our society and to protect their human rights. The extent of the failings in this case were clear only once the witnesses had been cross-examined by the OS and TQ due to the poor quality of the written evidence and the absence of rigorous assessment of decisions taken and the procedures adopted prior to the final hearing. Had TQ not made her application the plight of P in so many respects might still have gone unnoticed or unchallenged, if decision-making in respect of him had proceeded in the same fashion as hitherto.

…  The Mental Capacity Act Code of Practice sets out precisely what should be recorded by those professionals involved in the care of a person who lacks capacity when working out the best interests of that person for each relevant decision. Records should be made of how the decisions were reached, why the decisions have been taken, who participated and what particular factors were taken into account. The record should remain upon the person’s file.”

The CCG accepted there was no evidence that a capacity assessment and best interests meeting had formally taken place prior to P’s move to Placement 1. This failing was deeply concerning to the Court. The Court was pleased with the assurances of the CCG that

“A piece of work has been commenced by senior members of the quality team at the CCG to put in place robust assurance processes in relation to new placements and the requirements of the MCA. Consideration is also being given to training needs of those individuals involved in commissioning packages of care on the requirements of the MCA and a training programme will be put in place once these have been identified. It is anticipated that this will help to ensure that a person-centred approach to decision-making is ensured, having full regard to section 4 MCA, in a way which, very regrettably, appears to have been lacking in this case, both during transition and as to contact.”

HHJ Clayton highlighted that the extremely poor record keeping led to poor care decisions; for example Mr P did not even have his capacity assessed until three months into his placement, there was no proper plan put in place for his initial transition between child and adult services; there was a failure to apply for authorization of his deprivation of liberty under schedule A1 MCA 2005 prior to his move to Placement 1 (so that he was unlawfully deprived of his liberty and without the protection of the Deprivation of Liberty Safeguards for a period of time). The list went on.

HHJ Clayton concluded that ‘The failure to comply with the MCA 2005 was not a technicality. It led to a wholesale failure of best interest decisions’.

Ms TQ was duly appointed as Mr P’s welfare deputy with wide powers save as to medical issues.

On the matter of costs, the judge said this:

“Had the information been set out appropriately in written evidence it is likely all would have realized prior to the commencement of the hearing that this case did fall into those unusual circumstances where there is a real need for P to have a PWD to ensure he is at the centre of best interests decisions in the future and that TQ is the ideal person to take on that role for P…. I have taken account of the change in position by the parties without the requirement for TQ to give evidence, with only their own evidence causing the BCT and the CCG to decide TQ’s application should not be opposed. I have come to the conclusion that the costs of the OS should be borne in full by the BCT and CCG in equal shares.

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The report can be found here

https://www.bailii.org/ew/cases/EWCOP/2019/68.html