Lest anyone think that there is no duty to give reasons for a care planning decision in the current crisis, they will be assisted by reminding themselves of the Goldsmith decision from 2004 – from even before the Care Act came in, and when care plans were not even statutory, please note.
Under the Care Act, there is no duty to give written reasons for a council’s belief in adequacy or suitability either, but the Courts have long implied that duty in the interests of fairness and accountability. Examples are the RBKC (Savva) case, Cambridge (K) (on budgets) and several others. The current guidance envisages councils ‘stating’ their reasons for refusing to budge any further on a final offer on a care plan, in para 10.86.
Goodness knows what Corona Guidance will say, if the emergency provisions are triggered. But the good news is that the suspension of s24 and s25, and the modification of s18 regarding meeting needs (which has been provided for by the Coronavirus Act 2020, should it become necessary because of staff shortages), is not a deathknell for people’s legal rights to due process under the public law of this country.
Public law – the duty to act rationally (meaning taking all relevant considerations into account and having an evidence base), lawfully, and fairly (meaning transparently) is not capable of being suspended.
The issue in the Goldsmith case was about rights to make representations to panel, and involvement in the decision making process regarding a care plan (in this case, regarding a setting in which to receive care, given the lady had been very settled in a residential care home before a fall).
Nobody is suggesting that people need to be piling into panel decisions in person, based on this case, please note (not that there will be time for panel decision, we are guessing). But the reason that s27(2)(b) has not been included in the list of sections ripe for suspension or modification is very probably this case: it illustrates the right of involvement and participation in relation to any significant decision that is to be made about a person, by a public body.
76. Against this background, I have to say that I do not agree with the judge’s finding that Linda Goldsmith had no right to attend the LCCP meeting on 8 July 2003. The judge gives no reason for that conclusion, apart from stating that he did not consider the Guidance entitled her to attend. The reason put forward by Wandsworth, namely that the LCCP was discussing “clinical” issues does not to my mind bear examination. Although we do not know the identity of everyone who was present, the LCCP is a joint health and social services panel. I very much doubt if most social workers or social work managers would welcome being described as clinicians. But in any event, if the LCCP was discussing the Appellant’s care needs, that was manifestly a matter on which Linda Goldsmith had a contribution to make. If the matters to be discussed were purely clinical, what was the materiality of her written representations?
87. Judicial review is about process, and in my judgment the process here has been manifestly defective. This analysis, in my judgment, is sufficient to dispose of the appeal [by Wandsworth from the decision below].
Article 8 of the European Convention on Human Rights
- …However, the judge accepted a submission made on Wandsworth’s behalf that whilst Article 8 was engaged in relation to the Appellant’s right to respect for her private life, if the decision was otherwise lawful, Article 8 added nothing to the debate. That was because Wandsworth’s interference was both in accordance with the law and necessary in a democratic society to safeguard the Appellant’s physical and psychological integrity. Speaking for myself, I am unable to accept that submission when applied to the circumstances of this case.
- It is trite law that in addition to being in accordance with the law and necessary in a democratic society for the protection of the Appellant’s health, any interference by the State with her right to respect for her private life must be proportionate. There is no evidence, in my judgment, that Wandsworth gave any consideration to the principle of proportionality.
- This is particularly marked in the meeting on 6 October. I have already set out in paragraph 52 above what can only be regarded as Linda Goldsmith’s practical, albeit emotional, expression of the Appellant’s Article 8 rights. I have recorded Mr. Kelly’s response. It is apparent to me that at no point in the meeting is there any evidence that either Mr. Kelly or any other Wandsworth decision maker had addressed their minds either to Article 8 itself or to the proportionality of Wandsworth’s response.
- These are not academic considerations. It is not in dispute that a change to a strange environment for a person of the Appellant’s frailty could have serious, if not fatal consequences. The proportionality of the response is, therefore, of the utmost importance. In my judgment it is not good enough for Wandsworth, after the institution of proceedings, to produce evidence that this was a factor in its mind when it made the decision (whenever that was). In my judgment, the court has to look at the decision at the time it was made and at the manner in which it was communicated to the person or persons affected by it. And in that process, I find a complete absence of any suggestion that Wandsworth had addressed the Appellant’s Article 8 rights.
- It is, in my judgment, and for all the reasons I have already rehearsed at length, no answer to this point for Wandsworth to suggest that this was not the point of the meeting on 6 October, which was to discuss Dr. Cottee’s conclusions. Dr. Cottee was not the decision maker, Wandsworth was. It is unexceptionable for Dr. Cottee to express his professional opinion, but it is for Wandsworth to conduct the overall balancing exercise, which gives weight to Dr. Cottee’s opinion in the wider context of the Appellant’s needs and rights. The point was put to Mr. Kelly point blank by Linda Goldsmith at the meeting, and his answer, in my judgment, is clear.
- I would therefore, for my part, quash Wandsworth’s decision that the Appellant either should not be returned to alternatively should be removed from Mary Court. I would direct Wandsworth to reconsider its position with an open mind and on all the material available at the date of the fresh decision. I would expect the process of decision making to be transparent and the reasons for its decision to be clearly articulated in writing.
- The merits of the decision are not a matter for this court. Given the history of this case, however, I nonetheless express the hope that what is left of the Appellant’s life can be lived out with the maximum of dignity and the minimum of psychological harm.