Author Archive for Gabe Susman

Article 8 of the European Convention on Human Rights – The right to respect for all things close to heart and home including during the Coronavirus crisis

In the last few days, CASCAIDr has been covering human rights in the context of adult social care, on social media.

Examples have touched on policies or resources difficulties which have seen carers doing the council’s job for a variety of reasons, varying from not knowing that there is no legal obligation to take on that responsibility, to feeling one has literally no choice but to do it. Liverpool v Hughes is a case where the carer, rather than the client, needed to bring the challenge. Other cases have seen disabled people left in dire and unconscionably long-lasting situations (Enfield v Bernard) and people’s relatives being upheld in their wish to participate and be involved in due process (Wandsworth v Goldsmith).

You can search for these in www.CASCAIDr’s search box – and at the end of this overview of article 8, here are three more that we predict will matter in the coming days – Elaine McDonald’s case (about the means by which needs can be met, consistent with dignity), Rachel Gunter’s case (about being cared for at home) and MM’s case (about maintaining intimate relationships chosen by people with capacity).

Article 8 is the most relevant article of the ECHR, to which we are still signed up, despite Brexit. The vast majority of the Convention has been made a directly applicable part of our own UK law through the 1998 Human Rights Act, still also in force for all purposes, which provides:

8(1) “Everyone has the right to respect for his private and family life, his home and his correspondence”.

8(2) “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the lawAND is necessary in a democratic society in the interests of 

  • national security [no great surprise there, for anyone, we would suspect],

BUT there are further caveats to take note of, because like most Convention rights, article 8 is not absolute and article 8(2) provides several qualifications, or ‘justifications’ for proportionate interference by a public authority – justifications which could well have been written with the Coronavirus crisis and the problems it presents to our local government sector, expressly in mind!

  • public safety
  • or the economic well-being of the country
  • for the prevention of disorder or crime,
  • for the protection of health or morals,
  • or for the protection of the rights and freedoms of others”.

The reference to ‘the economic well-being of the country’ may be read now, within the UK, as if it said the ‘area’.

The reference to necessity is to a concept of proportionality – that is, any interference by a public authority with an individual’s article 8 rights must correspond to a ‘pressing social need’, and be proportionate in pursuit of a legitimate aim in order to count as ‘necessary in a democratic society’. Thus proposals which will have a financial impact one way or the other cannot be justified just because a saving or getting in an income is desirable – it must be more important than that.

Ironically, in this crisis, it will not be money, so much, that we predict that will be weighed in the balance: it will be the absence of staff or trained staff or trained staff with sufficient protective equipment. Even if there’s fault behind our inadequacy to deal with the problem immediately, that inadequacy is a fact that has to be factored in to the thinking about who gets what and when and why.

The concept of proportionality requires the public authority to strike a fair balance between the interests of the individual whose rights are being impinged upon, and the interests of others or of the community in general. When life is at stake, that is a particularly difficult balance to strike.

Care homes and providers who are contracted to councils, are bound by human rights, because the Care Act says so.

Contractors delivering services for the NHS, for instance, all those in NHS paid for interim beds now that Continuing NHS healthcare assessment has been suspended – also owe human rights, not because of the Care Act but because they are discharging statutory obligations for the NHS directly under the NHS Act, and are thus what’s known as a hybrid public authority.

So, for all providers, there is an obligation to refrain from unjustified interference in people’s private lives and relationships – which is why blanket bans on visiting, are probably not lawful, right now.

However, it is not merely the negative one which the language would suggest. Article 8 also imposes a positive obligation on local authorities to take steps to act to secure enjoyment of the rights or to protect people’s enjoyment of them. In Guerra and Others v Italy, for example, the ECtHR held that a failure by the authorities to take appropriate action to reduce the risk of pollution to the applicants, who lived near a chemical factory, was a breach of article 8.

Human Rights and Dignity – the Elaine McDonald case – incontinence pads for someone who’s not incontinent?

“Article 8 cannot be considered applicable each time an individual’s everyday life is disrupted, but only in exceptional cases where the State’s failure to adopt measures interferes with the individual’s right to personal  development and his or her right to establish and maintain relations with other human beings and the outside world.

Regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole and to the wide margin of appreciation enjoyed by States in this respect in determining the steps to be taken to ensure compliance with the Convention.

This margin of appreciation is even wider when, as in the present case, the issues involve an assessment of the priorities in the context of the allocation of limited State resources. In view of the familiarity with the demands made on the health care system as well as with the funds available to meet those demands, the national authorities are in a better position to carry out this assessment than an international court.”

The judge concluded: “I have the greatest sympathy for the misfortunes of Ms McDonald and, I would like to believe, a real understanding for her dislike of what the Royal Borough has proposed. However, even though the Royal Borough had in my judgment failed in its duty in overlooking that at the time of its November 2008 decision Ms McDonald’s defined need was still that of assistance to access the commode at night, that error was not born of any lack of respect for her dignity, but of a concern, even if at that time wrongly executed, to perform the difficult task of balancing its desire to assist Ms McDonald with its responsibilities to all its clients within the limited resources available to it in its budget.”

Human rights impact within CHC law – keeping a person in their own home, even though there is no right to force the PCT to pay for this:

The Gunter case

http://www.in-control.org.uk/media/33617/independent%20user%20trust%20judgement%20.pdf

“Dr Milne also notes that Rachel had made a far greater recovery than was predicted at the time of her surgery and had continued to improve since being at home. This accords with the views of others and it is apparent that the care provided to her by her parents, in particular her mother, has resulted in a remarkable improvement in her condition. That is, as it seems to me, a very important consideration which must be given due weight in deciding on her future.

I do not regard evidence of what benefits could accrue from the expenditure of sums which could be saved in providing a less costly package for Rachel as helpful. It is obvious that Health Authorities never have enough money to provide the level of services which would be ideal, but that cannot mean that someone such as Rachel should receive care which does not properly meet her needs.

The interference with family life is obvious and so must be justified as proportionate. Cost is a factor which can properly be taken into account. But the evidence of the improvement in Rachel’s condition, the obvious quality of life within her family environment and her expressed views that she does not want to move are all important factors which suggest that to remove her from her home will require clear justification.”

Human rights, sex and learning disability – the MM case

https://www.bailii.org/ew/cases/EWHC/Fam/2007/2003.html

A young woman with learning disabilities but enough capacity to have sex with her long term boyfriend, albeit maybe not enough to figure out how bad he might be for her, and who was therefore expected by the council not to have him to her supported living accommodation – alleged a breach of human rights when the council refused to provide them with somewhere else safe to go to have sex. The judge said this:

“I should add that the local authority cannot in this connection seek to avoid its positive obligations by seeking to toll the bell of scarce resources.…the additional financial burden which this may impose on the local authority is comparatively modest given the overall cost of its provision for MM. And the right in play here is, to repeat, too important, too precious in human terms, to be swept aside by such purely fiscal considerations. If the local authority seeks to impose on MM a regime which in fact involves a breach of her Article 8 rights – the consequence of imposing on MM a regime which in practical terms prevents her continuing her sexual relationship with KM – then the local authority in principle has a choice. It must modify the arrangements so that there is no breach of Article 8. And in the circumstances of the present case it can do this either by abandoning its attempt to prescribe where and with whom MM lives or, if it wishes to exercise that control, by taking appropriate positive steps to enable MM to continue her sexual relationship with KM. If it seeks to do the one without shouldering the burden of doing the other, then its intervention in MM’s life is, he [MM’s counsel] submits, and I agree, disproportionate. And in my judgement it involves a breach of her rights under Article 8.”

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Human rights underpin all social work and social care law – regardless of the Care Act, please note, or any suspension thereof – Goldsmith v Wandsworth LBC – [2004], Court of Appeal

https://www.bailii.org/ew/cases/EWCA/Civ/2004/1170.html

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.
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HUGHES v Liverpool City Council, [2005]

An important case on human rights in the context of adult social care – carers, look to the effect of your continuing to be willing to shoulder that which the council would otherwise have to meet –

https://www.bailii.org/ew/cases/EWHC/Admin/2005/428.html

What happened

KH has severe mental and physical disabilities. They were summarised in his mother’s witness statement … as follows:

“Cerebral palsy; severe learning difficulties; poorly controlled epilepsy; an extremely erratic sleep pattern; Ataxia with poor co-ordination and fluctuating muscle tone with stiffness on the right side of the body; decreasing mobility over the last 4 years or so; double incontinence; no speech.”

He had been looked after by his mother since birth with some help from outside agencies. He lived with his mother in a 3 bedroom semi-detached house which is and had been for some time acknowledged to be unsuitable for his needs. His mother on his behalf had sought assistance from Liverpool City Council to assess his needs for accommodation and welfare services. She claimed that Liverpool’s response has been so inadequate as to be unlawful and/or has put the authority in breach of its statutory duties owed to him which on his behalf she can seek to have enforced by judicial review.

The judge held as follows:

“The duty [to provide care and accommodation that is suitable to his needs] had been owed to the claimant under section 21 since 6th April 2003. It will not be discharged at the earliest until August 2005. It should have been discharged long before… By failing to remedy what [was] identified as “a crisis situation” before now, Liverpool, despite their honest efforts, have in fact been in breach of the duty today owed to the claimant under section 21, and I so declare.”

He then made an order for some urgent respite under the precursor provisions for welfare services and home care before the Care Act was the law.

Human Rights

The judge said this, because damages were claimed.

I now turn to the claim for damages made by the claimant under section 8 of the Human Rights Act. The claim is said to be for infringement of his rights under article 8 of the European Convention of Human Rights. Article 8 provides:

“Right to respect the private and family life.

“(1). Everyone has the right to respect for his private and family life, his home and his correspondence.

“(2). There shall be no interference by a public authority with the exercise of this right except such

as is in accordance with the law

and is necessary in a democratic society in the interests of

national security,

public safety or the economic well-being of the country,

for the prevention of disorder or crime,

for the protection of health or morals, or

for the protection of the rights and freedoms of others.”

Accepting, without deciding, that Article 8 imposed on Liverpool a positive duty to promote the claimant’s private and family life, I am not satisfied that it has acted so as to be in breach of that right.

The claimant’s private and family life have been protected and promoted by the efforts principally of his mother but supplemented by carers paid for by Liverpool. Subject to the limitations necessarily imposed upon the claimant by his disabilities, he has been able to enjoy his private and family life. It is true that his mother has identified respects in which protection of his dignity and personal integrity would be improved were suitable accommodation to be provided. But in all other respects, as far as I can tell from the documents that I have read and the submissions that have been made to me, the limitations imposed upon his enjoyment of private and family life stem from his own condition.

The burden imposed on his mother has been very great, even intolerable.

But it is not she who is the claimant.

As a result of her efforts, the impact upon the claimant’s private and family life of Liverpool’s shortcomings in fulfilment of its statutory duties has been reduced to a level at which his rights have not been infringed.

In any event, I am not satisfied that the high threshold identified by Lord Woolf LCJ in R (Anufrijeva) v Southwark LBC [2004] QB 1124 at paragraph 43 has been crossed. Nor do I think it is necessary to achieve just satisfaction of the claimant’s claim that damages should be awarded. I refer to Lord Woolf’s analysis of the circumstances in which damages may be awarded in paragraph 55 of that decision.

It is possible that in the future matters may be different if despite this judgment Liverpool do not fulfil its duties under sections 21 and 29 of the 1948 Act so that the claimant’s rights under Article 8 become infringed. This may well be so if for example his mother is unable to continue to provide the care that she does owing to her own difficulties, and her efforts are not adequately substituted by Liverpool. But that is a matter for the future if and when it arises.

For those reasons, the application for judicial review succeeds to the extent that I have indicated. The claim for damages for breach of Article 8 fails. I will hear counsel on the detail of any consequential orders.

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Wiltshire Council at fault for inadequate financial assessment, and concluding that there had been a deliberate deprivation of assets

Decision Date: 4th December 2019

What Happened

Mrs B complained on behalf of her father Mr C, who had Parkinson’s disease.

The dates are important in this report, so we have highlighted them.

Up until 2013, Mr C’s wife (Mrs C) had been informally caring for him. Over the years there had been communication between Mrs B and the Council discussing support for Mr C – for example he needed a level-access shower.

After a stay in hospital Mr C was successfully discharged without any care plan, and a month later in July 2013, a social worker visited Mr and Mrs C for a benefits check. The social worker completed applications for higher rate attendance allowance for Mr C and attendance allowance for Mrs C in September.

In late 2013 Mrs B contacted the Council to say that her mother had a serious illness. She explained that Mrs C was struggling as Mr C’s main carer due to her own care needs.

An initial assessment was undertaken in October 2013, and a support package was put in place for four weeks to help Mr C with dressing / undressing, bathing, getting in and out of bed, food preparation and taking medication, but was cancelled after one further month, following a review.

The LGO’s report did not explain why it was cancelled, or who by.

The Council undertook a financial assessment (no indication as to the date of the assessment), to determine whether Mr C would need to contribute towards his care (again, it was unclear from the report why they assessed his finances after the support plan had already been cancelled.) The Council assessed Mr C’s income and concluded that he would not have to make any financial contribution, because the house the couple lived in was not relevant to charges for care at home.

In December 2013, Mr and Mrs B bought their present home which had an annex next door, converted from a former stable building and treated as a separate dwelling. They bought the home with the intention of converting the annex as a space where Mr and Mrs C could one day live, to be close by for any support they needed.

In order to purchase their present home and its annex, Mr and Mrs B extended the term of their mortgage by 12 years and increased their own mortgage amount by £300,000.

Extensive renovation works were needed to convert the annex from an inaccessible two-storey dwelling to an accessible single-level dwelling suitable for a person with disabilities. Mr B saved up receipts totalling £69,402.13.

Mr C was admitted to hospital again in late March 2014. When he was discharged in April, his needs were reassessed (as his previous care package had been cancelled), and the Council agreed to put in a twice-daily care package.

Mr and Mrs C moved into the annex on 6 October 2014.  The Council completed a further assessment of Mr C’s needs. He declined respite care but said he would consider using day care that was discussed.

It is not clear whether he then received any social care at all. The couple’s daughter later contended that it was not foreseeable that he would need care, and thus potentially be charged, but it is not possible to tell from the report what the actual position was about services between October and November or between October and the following February where the couple’s previous home was sold.

On 7 November 2014, Mr and Mrs C signed a deed putting their previous home into Trust and agreed that 90% of the net proceeds of the sale of their home would go to Mrs B. The remaining 10% would go to Mr and Mrs C (or the surviving partner).

The house was sold in February 2015. £78,892.92 of the net sale proceeds were paid to Mr and Mrs B, with £8,765.00 paid to Mr and Mrs C.

Mrs C passed away in April 2015. Mr C inherited the money from Mrs C.

The Council reassessed Mr C’s needs in April 2015 and agreed to providing “double-up” care. The report did not indicate how long exactly the support was planned for, but the Council arranged to review his needs in September, where they authorised his support plan for a further 26 weeks.

The financial assessment process did not begin until 2017 – for reasons unexplained. The Council asked Mrs B for details of the equity release from Mr and Mrs C’s former home, and for verification of the conversion of the annex.

The financial assessment was finally completed in 2018.

  • It decided that Mr C should be liable for the full costs of his care from February 2015.
  • Having regard to the guidelines on deprivation of assets, it considered that, at the time the property was sold, Mr C would have had a reasonable expression of the need for care and support.
  • It noted that some of the proceeds of the sale had been used to adapt the annex, but that Mr C had acquired no legal interest in the annex.
  • It concluded that there had been deliberate deprivation of assets and that Mr B was liable for the cost of his care.

There followed further correspondence between the Council, Mrs B and her solicitor. However, the Council maintained its position but continued to fully fund Mr C’s care.

What was found

The LGO recommended that the Council review its financial assessment of Mr C.

Mr and Mrs B explained that the work to convert the annex from an inaccessible two-storey dwelling to a level-access dwelling suitable for a person with a disability was substantial. However, the Council only took into consideration receipts totalling £7,564.56, despite on several occasions Mr and Mrs B providing receipts totalling £69,402.13 for the full cost of conversion. The LGO did not recite what the council’s reasoning was for only considering that small, specific portion of the conversion costs.

The Council also questioned why there was no change in ownership to reflect the payment to Mr and Mrs B. Mr and Mrs B explained that with a mortgage of £300,000 on their overall home it was unlikely that the mortgage lender would consent to a change in ownership.

Moreover, Mr and Mrs C would have been unable to place a second charge on their own property, as there was already an encumbrance on the property due to earlier equity release.

Mr and Mrs B explained that the reason for the Trust was to make sure that they were reimbursed for the money they spent on renovating the annex. They said the Deed of Trust was not 100% in their favour, which was indicative of repayment rather than an attempt to circumvent the rules. They received £78,892.92 and provided receipts for the works totalling £69,402.13.

Mrs B stated that had the annex not been converted she would have been unable to provide support to her mother and father, so the cost to the public purse would have been much greater.

The Council explained that in carrying out the financial assessment it took into account the receipts for conversion costs totalling £7,564.56.

However, it said it would have expected Mr C to have retained a share in the annex and / or the sale proceeds.

The LGO concluded that there was fault in the way that the Council undertook its final assessment because it only took into consideration receipts for works undertaken totalling £7,564.56. It did not consider the receipts totalling £69,402.13 which Mr and Mrs B provided on several occasions.

Furthermore, at the time that Mr and Mrs C sold their home, they each had an equal share in the property. The Council should therefore have considered the question of deprivation of assets separately in respect of Mr and Mrs C’s shares. It had not done so and this was fault.

Given the substantial difference between the two sums, the LGO recommended the Council reviews its financial assessment. It recommended the Council

  1. review its decision in light of the fact that Mr and Mrs C owned equal shares in their former home;
  2. reconsider whether some or all of the renovation costs should be excluded from the calculation of Mr C’s capital;
  3. once it has completed the review, consider whether there has been any fault causing injustice which would warrant a remedy.

Points for the public and for charging officers

This complaint brings out the fact that the Care Act made deprivation of assets an issue for those needing to pay for home care, not just care home care.

What puzzles us about this report is that the law is that the value in one’s property is not relevant to financial assessment if it would be disregarded anyway.

From what we can tell, the value of the couple’s property would not have been relevant to any financial assessment at the time the man received services, because he was always receiving care at HOME.

Yes, of course we see that the property money was turned into cash, when it was not his main or only home, but if the couple had been bridging in order to move when they needed to, that would have given rise to a debt related to accommodation. It does not appear to have been foreseen that Mrs C would die so soon after moving into the annex with her husband.

To our minds, the man and his wife arranged their finances in order to pay for somewhere to live. If, say, he had merely promised to pay his daughter the money by way of rent over the rest of his life, it would not have been relevant, at all – it would have been a legitimate commitment for housing costs. Paying her back for converting it, could never be seen as deliberate deprivation of income OR capital assets in our view.

Yes, they entered into the trust deed AFTER the move, and that was a disposal of the bulk of the remaining equity, half of which was his.

And yes, the man probably knew that he needed support, when he entered into that trust, but the motivation was the antithesis of avoiding paying for care, as far as we can see.

Ultimately, he and his wife, whilst still his carer, needed support and he used their (and what became his) money, to obtain a place to live – an environment in which that support could be secured.

That does not seem to us to be a scenario where one could ever hope to justify concluding that the significant motivation for the disposal was the avoidance of a liability to pay for care!

The current Care Act guidance (which was not in force at the time when the Trust deed was entered into) says this:

11) There may be many reasons for a person depriving themselves of an asset. A local authority should therefore consider the following before deciding whether deprivation for the purpose of avoiding care and support charges has occurred:

(a) whether avoiding the care and support charge was a significant motivation in the timing of the disposal of the asset; at the point the capital was disposed of could the person have a reasonable expectation of the need for care and support?

(b) did the person have a reasonable expectation of needing to contribute to the cost of their eligible care needs?

There is also an example in the current guidance regarding ‘Max’ and ‘David’ which although about someone moving into a care home and then freeing up their share of the previously owned property, seems to us to be in point:

At the time the property is sold [for this, read the Trust Deed was entered into..], Max’s 50% share of the proceeds could be taken into account in the financial assessment [for Max’s services in the care home], but, in order to ensure that David is able to purchase the smaller property, Max makes part of his share of the proceeds from the sale available. [We think that this is comparable to agreeing to repay the expenditure on conversion of the property]

In such circumstance, it would not be reasonable to treat Max as having deprived himself of capital in order to reduce his care home charges.”

It does not seem to be lacking in credibility either, that the Trust, rather than a loan repayment agreement, was needed, because if there could be no second charge on the property the couple had previously owned (equity release is often geared to take up the whole of the value of the property) the expenditure by the daughter and son in law for the benefit of the parents, would have been unsecured.

The only point we would make is that the couple put a lot more into Trust than was needed to repay the debt, but the LGO says nothing about that. We think that that extra would have been an appropriate amount to pay by way of a reasonable fee for 6 months’ occupation of the annex prior to the freeing up of the proceeds of sale – and indeed, the owners had increased their own mortgage to make this project work.

So, overall, we are astonished that this approach was taken by the council – and applaud the LGSCO’s implicit engagement with the question of significant motivation.

If you want help, please consider seeking advice from CASCAIDr via our referral form on the top bar menu of the site.

The full Local Government Ombudsman report Wiltshire Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/18-017-678

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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.

CASCAIDr does not get involved in this sort of case, because we are not a law firm and we cannot represent people in contentious litigation. However, we do work with law firms that provided legally aided services, in the Court of Protection and in the Administrative Court for judicial review. So please feel free to seek initial advice from CASCAIDr via our referral form on the top bar menu of the site.

The report can be found here

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

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error

Provider (commissioned by Bristol County Council) at fault for not following emergency procedure and failing to provide care for one night (relevant to Coronavirus scenarios)

Decision Date: 18th December 2019

What Happened

Mrs B complained on behalf of her husband, Mr B.

Mr B received three visits a day from care workers. The last visit of the day was scheduled at 9pm, to help him get ready for bed, which involved using a hoist to use the toilet. Mrs B could not help with those tasks as she herself had health problems.

Mr B started using the Care Provider (CP) on 30th January 2019. On Friday 1st Feb, there were heavy snowstorms which affected the CP’s ability to get to its customers.

The CP said that they rang Mrs B at 21.30 that night, to say that Mr B’s carer had broken down in the snow, so would be over an hour late. It provided a screen shot showing a call made to Mrs B’s number at 21:30 on 1 February 2019, lasting 13 minutes. The CP said Mrs B was very aggressive and upset, saying 11pm was too late and ‘hung up’.

Mr and Mrs B said they never received the phone call. Mrs B provided evidence that she called the CP’s emergency number at 21:52, 22:16, 22:31 and 22:32 (all lasting less than 1 minute).

After failing to get through to anyone from the CP, she called Bristol City Council’s main number and the emergency council number shortly afterwards at 22:23 to say Mr B’s morning and lunchtime visits were amalgamated into one and no-one had turned up for the evening visit. Mr B had not been to the toilet all day. He needed to be hoisted over the toilet and into bed.

The duty worker advised Mrs B to call the Care Provider’s out of hours number and call back if she couldn’t speak to anyone.

She rang back at 22:35 to say the out of hours number was switched off.

The duty worker also tried to get in contact with the CP, could not, so tried to arrange alternative care for Mr B. Nothing was available so advised her to ring 111. He wrote the following summary and referred the case to Mr B’s social worker to follow up.

“This lack of service is effectively an adult safeguarding issue in terms of care provider neglecting their responsibilities, leaving [Mr B] with no help with toileting and getting to bed. There has been no communication from the care agency, neither is there any facility for [Mr and Mrs B] to communicate their needs to the agency. Please can the s/w treat this as such and take safeguarding actions.”

The CP said it did not receive any voicemails from Mrs B, or the duty worker that night. It suggested that because of the snow storm, the on-call worker would have been taking calls and doing visits at the same time, so calls to the emergency number would have been transferred over to her mobile phone, possibly affecting the receipt of voicemails.

The Care Provider rang Mrs B back on Monday 4 February 2019. Mrs B said she had made several calls to the emergency number but no-one had got back to her. Mr B had not had a visit and sat in his wheelchair all night with wet clothing.

The Care Provider investigated the complaint; it found no problems with its telephones, and assumed that Mrs B did not want the visit because she had said ‘what’s the point’ and hung up, when the CP said they would be late to the 9pm visit.

Following this conclusion, came a long back and forth dispute between the CP and Mrs B over the phone calls. On the 4 March 2019 the CP repeated its findings and the LGO stated that the two parties ‘agreed to disagree’.

On 17 March 2019 the Care Provider gave Mrs B notice that it would be terminating its service on 16 April, as it had reports of Mrs B acting aggressively towards staff.

Mrs B denied this, and asked if the CP would consider. The CP declined, so Mrs B found an alternative agency, and complained to the LGO.

What was found

Missed appointment

The LGO stated that ‘Given the discrepancies in the call records provided by the Care Provider and the additional evidence from Bristol City Council I am unable to safely conclude that the Care Provider called Mrs B at 9.30pm to offer a visit.’

The provider’s evidence was that it made a call to Mrs B at 9.30pm on 1 February 2019 which lasted for 13 minutes. But a separate screenshot did not correlate with this call: it was taken half an hour later than the first one and shows a missed call from Mrs B’s number followed by two outgoing calls to her number on a Friday.

The first screenshot should show details of the missed incoming call from and the two outgoing calls, but it only shows one outgoing call at 9:30pm.

The second screenshot could well have been earlier in the day or from a different Friday – one could not tell for sure.

From the LGO’s perspective, this called into question the validity of the first screenshot.

This, coupled with the duty worker also being unable to get through to the out of hours number that evening led the LGO to its decision).

Despite the CP failing to offer a visit, Mrs B called the out of hours number four times, as did the duty worker. The CP’s failure to respond to those calls, whether a message was left or not, was fault which led to Mr B being left in an unacceptable state for a whole night.

Emergency Procedure

The Care Provider provided a copy of its emergency procedure. It covered bad weather situations and it required the Care Provider to inform customers that visits may be late due to bad weather. It also required it to have an out of hours emergency number. Given the failure to answer or respond to messages and calls on the emergency number the LGO concluded that its emergency procedure was not followed.

Given Mrs B’s disability, Mr B’s visit should have been assessed as a priority one. There was no evidence that it was.

The Care Provider had a reasonable amount of evidence from its staff of Mrs B being rude and aggressive. The Care Provider decided to give notice due to the impact of this behaviour on its staff. The LGSCO noted that the provider had explained its reasons, considered Mrs B’s response and gave her adequate time to find a replacement.

However, in recognition of the distress caused to Mr and Mr B by the failure to do the care visit, the LGO recommended the CP pay Mr and Mrs B £300.

Points for the Public, Service Users, Families and Councils

There is no detail in this report as to what the council’s own Safeguarding Team thought of this matter. Bristol was technically at fault however, because all statutory duties – even if contracted to outside providers, or delegated to outside providers, remain the responsibility of the public body. The duty is owed by the council to the client under the Care Act and is non-delegable.

The provider’s emergency plan was not a bad one, and it’s an interesting thought in light of the Coronavirus Act modifications to the duty to meet needs, when to do otherwise would be a breach of human rights.

Its own plan required the Care Provider to:

  1. monitor weather reports and if required check on the condition of vulnerable customers living in isolated locations;
  2. assess safety of staff;
  3. keep a list of all staff with 4WD vehicles;
  4. advise customers when appointments may be late due to conditions;
  5. borrow 4WD vehicles to reach cut-off customers who need assistance; and
  6. prioritise services according to a risk rating.

Priority level one customers include those who lived alone or who live with someone who is unable to assist in an emergency. This category was then prioritised according to the number of visits per day.

The plan gave a mobile number for out of hours emergency situations.

Let us assume that the Care Act has been suspended. The only people who are getting their needs met, under commissioning arrangements giving effect to the Care Plan, are people for whom an omission would count as a breach of human rights.

According to the LGO, this gentleman should have been counted as priority one.

If one asks oneself what that would mean, in a staff shortage situation where the backstop is human rights, one has to ask whether not being able to go to the toilet would be a breach of article 3 or article 8.

We have to say that it is not likely – for a one-off situation. It’s shocking, and it’s not desirable, or excusable, but a person competing for a carer, with a life-sustaining need, is going to be preferred, in an emergency.

But if it was not every now and then but systemic, because of an evening visit being cut out of the care plan, to free up services for someone else, because of the virus, the sector will be looking back to the Elaine McDonald case, where incontinence pads were not thought to be inadequate in terms of respect for her dignity and autonomy, by the Supreme Court (or the European Court of Human Rights)

Comparing that with Enfield v Barnard, in 2002 – is interesting – in which case a breach of article 8 was found to have occurred, and in which damages were awarded for a breach of statutory duty, in the context of community care:

Having referred to his back injury and to the tortuous route up steps and down steps to the bath and WC in the lean-to at the back of the house, [Mr Bernard] said this this:

“Because my wife is doubly incontinent and only gets, frequently, less than 1 minute warning of the need to use the toilet, she commonly defecates or urinates before we reach the toilet.

The result has been that I have had to persistently clean the carpets, together with her clothes and bedclothes.

This is a problem, which arises several times each day.

I have to go to the laundrette often twice a day, and because of the layout of the house, I have had to buy adult size nappies for my wife together with disposal pants and wipes…

We only have benefits to live on and the additional cost of going to the laundrette twice a day and having to buy large amounts of floor cleaner and carpet cleaner has left us impoverished. We have not been able to pay the difference between our Housing Benefit and rent because we are so impoverished by these laundrette and cleaning costs.

Additionally, my wife’s role in bringing up the children is greatly limited. She cannot access the upper part of the house at all and it is a real struggle for her to leave her bedroom, which is in fact, the family’s living room. She has no privacy. We have six children, and she is in the living room, which is accessed directly from the front, street door.

Understandably my wife finds this state of affairs depressing and demeaning. It is very humiliating for her to constantly defecate or urinate in her clothing, as she is unable to reach the toilet. This happens as a result of the layout of the house and because the house does not have proper adaptations for a disabled person.”

https://www.escr-net.org/sites/default/files/caselaw/full_judgment_2.pdf

The Court said this, using ECHR jurisprudence already established at that point.

“Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim.”

In Price a severely disabled woman had been imprisoned for three nights for contempt of court. In paragraph 30 of its judgment, the court said: “There is no evidence in this case of any positive intention to humiliate or debase the applicant. However, the Court considers that to detain a severely disabled person in conditions where she is dangerously cold, risks developing sores because her bed is too hard or unreachable, and is unable to go to the toilet or keep clean without the greatest of difficulty, constitutes degrading treatment contrary to Article 3.”

It should be noted that in that case male officers had been required to assist in lifting the applicant on to and off the toilet, and that “by the time of her release the applicant had to be catheterised because of the lack of fluid intake, and problems in getting to the toilet had caused her to retain urine”.

Although not conclusive, the fact that there was no intention to humiliate or debase the claimants is a most important consideration. The cases concerned with prisoners’ rights, upon which the claimants placed great reliance, must be treated with great caution outside the prison gates. A prisoner is in a uniquely vulnerable position: detained against his will, he is literally at the mercy of the prison authorities. It is understandable that the protection afforded by Article 3 should be rigorously applied in such circumstances, even if there is no intention to humiliate or debase.

By contrast the case under Article 8 is not finely balanced. Under Article 8 the claimants are entitled to respect for their “private and family life.” While the main thrust of Article 8 is to prevent arbitrary interference by public authorities with an individual’s private and family life, the European Court of Human Rights has recognised that Article 8 may require public authorities to take positive measures to secure respect for private or family life… In Botta v Italy [1998] 26 EHRR 241, the court said this in paragraphs 32 to 34:

“Private life, in the Court’s view, includes a person’s physical and psychological integrity; the guarantee afforded by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings.”

In the instant case the applicant complained in substance not of action but of a lack of action by the State. While the essential object of Article 8 is to protect the individual against arbitrary interference by public authorities, it does not merely compel the state to abstain from such interference: in addition to this negative undertaking, there may be positive obligations inherent in effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves. However, the concept of respect is not precisely defined. In order to determine whether such obligations exist, regard must be had to the fair balance that has to be struck between the general interest and the interests of the individual, while the State has, in any event, a margin of appreciation.

… I accept the defendant’s submission that not every breach of duty under section 21 of the 1948 Act will result in a breach of Article 8. Respect for private and family life does not require the state to provide every one of its citizens with a house: see the decision of Jackson J in Morris v LB Newham [2002] EWHC 1262 (Admin) paragraphs 59 to 62. However, those entitled to care under section 21 are a particularly vulnerable group. Positive measures have to be taken (by way of community care facilities) to enable them to enjoy, so far as possible, a normal private and family life. In Morris Jackson J was concerned with an unlawful failure to provide accommodation under Part VII of the Housing Act 1996, but the same approach is equally applicable to the duty to provide suitably adapted accommodation under the 1948 Act.

Whether the breach of statutory duty has also resulted in an infringement of the claimants’ Article 8 rights will depend upon all the circumstances of the case. Just what was the effect of the breach in practical terms on the claimants’ family and private life?

Following the assessments in September 2000 the defendant was under an obligation not merely to refrain from unwarranted interference in the claimants’ family life, but also to take positive steps, including the provision of suitably adapted accommodation, to enable the claimants and their children to lead as normal a family life as possible, bearing in mind the second claimant’s severe disabilities.

Suitably adapted accommodation would not merely have facilitated the normal incidents of family life, for example the second claimant would have been able to move around her home to some extent and would have been able to play some part, together with the first claimant, in looking after their children. It would also have secured her “physical and psychological integrity”. She would no longer have been housebound, confined to a shower chair for most of the day, lacking privacy in the most undignified of circumstances, but would have been able to operate again as part of her family and as a person in her own right, rather than being a burden, wholly dependent upon the rest of her family. In short, it would have restored her dignity as a human being.

The Council’s failure to act on the September 2000 assessments showed a singular lack of respect for the claimants’ private and family life. It condemned the claimants to living conditions which made it virtually impossible for them to have any meaningful private or family life for the purposes of Article 8.

Accordingly, I have no doubt that the defendant was not merely in breach of its statutory duty under the 1948 Act. Its failure to act on the September 2000 assessments over a period of 20 months was also incompatible with the claimants’ rights under Article 8 of the Convention.”

In my experience in this court, dealing with a wide range of complaints against public authorities, most citizens who have suffered as a result of some bureaucratic error are not motivated, or at least not primarily motivated, by a desire for monetary compensation.

They institute proceedings because they feel outraged by what they see as an injustice and want “them”, the faceless persons in an apparently insensitive, unresponsive and impenetrable bureaucratic labyrinth, to acknowledge that something has gone wrong, to provide them with an explanation, an apology and an assurance that steps have been taken to ensure (so far as possible in an imperfect world) that the same mistake will not happen again. This assurance will at least give them the satisfaction of knowing that they have not suffered in vain.

If a public body takes all of those steps reasonably promptly, once the problem has been drawn to its attention, then it may well be the case that nothing more is required by way of monetary compensation in order to afford “just satisfaction” in very many cases.

Sadly, that is not the position in the present case. The defendants were repeatedly urged by the claimants’ solicitors to take action in numerous letters written between August 2001 and February 2002; most of those letters were simply ignored.

Through Counsel, the defendant agreed to the making of a mandatory order on 27th March 2002, but there has been no acknowledgment that the defendant was in error, no explanation, no apology, and nothing to indicate that the defendant’s procedures have been improved so that the same kind of mistake, the Housing Department failing to act on Social Services Department assessments, is less likely to occur in the future. Moreover, the defendant’s conduct in dealing with the matter was not confined to mere inaction. In February 2002 the Housing Department threatened to evict the claimants. The threat was soon withdrawn, but it should never have been made had there been proper liaison between the defendant’s Housing and Social Services Departments. After 27th March 2002 the defendant failed to comply with the original and then with the extended timescales set by the court. There may well have been a reasonable explanation but, again, there has been no apology or explanation, and the apparent delays were compounded by the defendant’s insistence, maintained until the 11th hour, that the offer of 66 Mitchell Road had discharged its statutory duty.”

“The parties had not considered the two other possible sources of information: the reports of the Local Government Ombudsman and the awards for pain and suffering in cases of minor personal injury. I invited them to make written submissions dealing with these matters, and I am most grateful for their very helpful responses. Mr Clayton referred to a number of decisions by the Local Government Ombudsman, recommending awards between (at current values) £16,530 and £2,120 for various failures in the field of social services: to provide care for a child with severe learning difficulties, to provide home care assistance for a mother with multiple disabilities, to provide a residential placement for a young man with learning disabilities, to provide a residential care home for an elderly lady, and adequate care at a multi-purpose day centre for a young man with sensory impairment. In all of these cases, the families who acted as carers suffered varying degrees of stress, exhaustion, anxiety and disruption to their lives. At the bottom end of the scale, a mere failure to recognise a carer’s needs merited an award of £2,000. Non-provision of services for a relatively short period of time can result in a substantial award (£5,000 for 11 months of stress and exhaustion). At the top end of the scale, in cases where there is a great deal of anxiety and disruption or extreme stress, significantly more has been recommended (£10,900). The highest recommended award (£16,350 at current values) included a significant element of pecuniary loss. The complainant had been unable to find a suitable job because of her care commitments, had sought medical treatment for depression, had exhausted her substantial savings and was reduced to living on income support, her previous standard of living having disappeared.”

It is very much in the interests of society as a whole that public authorities should be encouraged to respect individual’s rights under the Convention. A “restrained” or “moderate” approach to quantum will provide the necessary degree of encouragement whilst not unduly depleting the funds available to the defendant for the benefit of others in need of care.

For all these reasons, I am satisfied that the award to the claimants should be at the very top of the £5,000 to £10,000 range identified above.

Although there are two claimants it is important to avoid double counting, and since these damages are intended to give them just satisfaction for a breach of their Article 8 rights, it is sensible to start off with an overall figure to reflect the impact of the breach on their family life together, and then to apportion that figure between the two claimants having regard to the relative effects on their private lives.

Bearing all these factors in mind, I conclude that the appropriate figure is £10,000, and I apportion that £8,000 to the second claimant and £2,000 to the first claimant.”

If you want help, please consider seeking advice from CASCAIDr via our referral form on the top bar menu of the site.

The full Local Government Ombudsman report can be found here

https://www.lgo.org.uk/decisions/adult-care-services/domiciliary-care/18-019-660

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Sherwood Forest Hospitals NHS Foundation Trust & Anor v H [2020] EWCOP 5

Hearing date 14th January 2020

This report considers an application to the Court of Protection.

What Happened

Mrs H was 71 and lived with her daughter Miss T and had numerous mental health issues.

She had been known to the local mental health team since 2014, when she had been hospitalised under section 2 and then 3 of the Mental Health Act.

During this stay, she was diagnosed with bipolar disorder. Although initially it appeared that Mrs H accepted her diagnosis, she displayed deceptive tendencies. She ‘deceived the medical establishment into believing she was taking her medication when in fact she was not’ and did not effectively engage with her diagnosis. She was discharged in December 2014.

Mrs H became aware in October 2018 that she had squamous cell carcinoma (‘SCC’ – which manifested as a growth on her cheek) which would require surgical removal under general anaesthetic. Again, she displayed duplicitous tendencies – she engaged with surgery and reconstruction plans, but failed to attend any follow up appointments, and often ‘entirely rejected the diagnosis of cancer’.

On 30th May 2019 Mrs H was assessed as lacking the capacity to make decisions in relation to her medical treatment. Despite this happening in May, the application to the Court of Protection to secure authorisation for the required treatment, did not happen until the end of December.

Hayden J highlighted that treatment was not progressed sufficiently quickly, because clinicians were unclear on the circumstances in which Mrs H could be forced, physically and by coercion if necessary, to attend for her treatment and, if so, how that might be achieved.

What was found

Hayden J surmised that the delay was unacceptable. He stated ‘that whilst avoidance of delay is not [explicitly] incorporated into the framework of the Mental Capacity Act in specific terms, it is to be read into that Act as a facet of Article 6 and Article 8 [human rights]. It is self-evident and, indeed, striking, that time here was of the essence and delay was likely to be inimical to Mrs H’s welfare. Not only inimical but as it has transpired, potentially fatal.’ (as the growth had grown).

He said the delay was inconsistent with Mrs H’s welfare, and could not see why an application was not made to the court much sooner than December. The Mental Capacity Act creates an obligation to deploy all reasonable steps available in order to promote a return to capacity.

Hayden J stated ‘a reasonable period before making an application might have been a week, two weeks, three weeks, but it was certainly not 6 months.’

Mrs H, her daughter, and her doctor Mr Pollock devised a plan, reflected in her care plan, for coercive treatment that Hayden J considered to be ‘both unusual as well as intensely sensitive’, and in her best interests.

He stated that the plan was ‘the appropriate and kindly way forward and one that respects, in different ways, Mrs H’s dignity, her autonomy and the very grave circumstances that she finds herself in’.

The plan involved some subterfuge but was benign and the least restrictive way forwards at that point. It had initially been contemplated that Mrs H should be sedated and physically coerced into treatment but she was physically acquiescent although definitely not capacitously agreeing. Sedation remained the Trusts’ fall-back position.

The judge added the following from revised guidance about WHEN a medical treatment issue should go to the CoP and not just be decided on the basis of best interests process and thinking.

8. If, at the conclusion of the medical decision-making process, there remain concerns that the way forward in any case is:

(a) finely balanced, or

(b) there is a difference of medical opinion, or

(c) a lack of agreement as to a proposed course of action from those with an interest in the person’s welfare, or

(d) there is a potential conflict of interest on the part of those involved in the decision-making process

(not an exhaustive list)

then it is highly probable that an application to the Court of Protection is appropriate. In such an event consideration must always be given as to whether an application to the Court of Protection is required.

9. Where any of the matters at paragraph 8 above arise and the decision relates to the provision of life-sustaining treatment an application to the Court of Protection must be made. This is to be regarded as an inalienable facet of the individual’s rights, guaranteed by the European Convention on Human Rights (‘ECHR’). For the avoidance of any doubt, this specifically includes the withdrawal or withholding of clinically assisted nutrition and hydration.

10. In any case which is not about the provision of life-sustaining treatment, but involves the serious interference with the person’s rights under the ECHR, it is “highly probable that, in most, if not all, cases, professionals faced with a decision whether to take that step will conclude that it is appropriate to apply to the court to facilitate a comprehensive analysis of [capacity and] best interests, with [the person] having the benefit of legal representation and independent expert advice.”[5] This will be so even where there is agreement between all those with an interest in the person’s welfare.

11. Examples of cases which may fall into paragraph 10 above will include, but are not limited to:

a. where a medical procedure or treatment is for the primary purpose of sterilisation;

b. where a medical procedure is proposed to be performed on a person who lacks capacity to consent to it, where the procedure is for the purpose of a donation of an organ, bone marrow, stem cells, tissue or bodily fluid to another person;

c. a procedure for the covert insertion of a contraceptive device or other means of contraception;

d. where it is proposed that an experimental or innovative treatment to be carried out;

e. a case involving a significant ethical question in an untested or controversial area of medicine.

12. Separately to the matters set out above, an application to court may also be required where the proposed procedure or treatment is to be carried out using a degree of force to restrain the person concerned and the restraint may go beyond the parameters set out in sections 5 and 6 Mental Capacity Act 2005. In such a case, the restraint will amount to a deprivation of the person’s liberty and thus constitute a deprivation of liberty.[6] The authority of the court will be required to make this deprivation of liberty lawful.

13. It requires to be stated clearly that those providing or commissioning clinical and caring services should approach the Court of Protection in any case in which they assess it as right to do so.

If you want help, please consider seeking advice from CASCAIDr via our referral form on the top bar menu of the site.

The full report can be found here

https://www.localgovernmentlawyer.co.uk/healthcare-law/174-healthcare-features/42974-not-only-inimical-but-potentially-fatal-medical-treatment-cases-and-delay

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London Borough of Bromley at fault for failing to consider sufficiently if a care home could meet a person’s needs

Decision Date: 26th November 2010

What Happened

Mr X complained on behalf of his father, Mr B, who was from Gujarat. Mr B spoke Guajarati with only a limited amount of English, and was Jain, so in observance of his faith he followed a strict vegetarian diet with no eggs, onion, or garlic.

The Council assessed Mr B as needing residential care in January 2019.

The Council suggested he move to a nearby home, but Mr X found that no staff member could speak Guajarati and the home could not cater to Mr B’s dietary needs.

Instead, Mr X found Mr B an alternative home (home A), in an alternative borough, which had Guajarati speaking staff, social and religious events in that language, and could provide meals suitable for Jains. However, this home was more expensive.

The Council agreed to increase Mr B’s personal budget to around £200 per week more than it would usually pay. In an email to Mr X, the Council confirmed that it had “agreed to fund at the residential rate…at £637pw”. This still left a shortfall of nearly £240 per week.

Before Mr B moved into Home A, the Council wrote to him with information surrounding paying with his care, for example information about third party top-ups.

After Mr B moved, Mr X started to receive bills, and he realised he had misunderstood how the funding would work. He had thought that the Council would pay £637 and that Mr B could make up with shortfall using his pension. However, the Council’s figure already included Mr B’s contribution, so the further shortfall was for Mr X and the family to find.

The Council assessed Mr B’s income and decided he should pay £240 per week and that Mr X would still need to pay a top up of a further £240 per week. By this time Mr B had settled into the home and his family did not want to move him.

Mr X complained to the Council that he was told too late about the top up fees, and that the Council were unable to meet Mr B’s needs elsewhere.

The Council responded, stating it had sent him information about how the fee was broken down and a link to its guide before Mr B moved in. It said also that Mr B’s needs could have been met within the Council’s rate of £637 per week but Mr X had chosen a more expensive home, knowing that the family would have to pay a top-up fee.

What was found

The LGO found that the Council was at fault because it could not evidence that it investigated available homes sufficiently or offered a suitable place within Mr B’s personal budget.

Internal emails highlighted the Council had considered whether it was able to offer Mr B a choice of homes, but not sufficiently.

The emails confirmed the Council’s stance that it ‘expected’ all care homes to provide services to adults of various ethnic, cultural and religious backgrounds. However, this was not enough for the LGO. The Council had to actually be satisfied that the home it offered could actually provide the services within the personal budget.

Despite the misunderstanding, the LGO found no fault by the council in how it communicated with the family regarding the top-up fee. The relevant information was made available to Mr B, and the LGO considered the mistake to be genuine.

The LGO recommended that the Council take over payment of the third party top-up, pay Mr X the total of the top-up payments he has made to date, and investigate how other homes could meet Mr B’s language and religious needs within his personal budget. If the Council were unable to find an alternative home, it should continue to pay the top up-fees, if they were able, Mr B could move to the cheaper home or Mr X and his family could resume paying the fees.

Points for the public, service users, commissioners, families and care homes

The Care Act guidance requires councils to commission a good quality and diverse range of services.

A council cannot claim to have commissioned reasonably if there is no provision for ensuring that people’s religiously driven dietary requirements are met, within a fee rate, because it is a person’s human right to manifest their religious beliefs, within reasonable limits, in the context of affecting other people in the care home.

Councils, under the Care Act, and care homes providing for people’s needs to be met in care homes and providers providing for home care in the community, owe human rights directly to members of the public, if the service is funded publicly, including through a direct payment.

The Care Act makes that the law by the requirement that councils promote wellbeing and by the principle that the Guidance must be followed unless there is a very good reason not to.

One would not even be surprised if Ramadan or Kosher sensibilities were funded so as to be assured of observance, in council contracts with care homes seeking to provide an environment that was person-centred for people of Islamic or Jewish faiths. Whether that is done on a flat rate basis or on the basis of a person-centred NEED makes no difference: it just needs to be done for the care to be minimally appropriate.

The fact that a religion may be less well represented in an area may be a good reason for negotiating a spot contracted for extra fee for observing a specialist diet. This man though, was merely committed to being a vegetarian, with a particular disdain for eggs onions and garlic, which one would not see as unusual these days, now that ethical veganism has been regarded as a philosophical belief by at least one tribunal in 2020.

We think that the language point is even more important and goes to the essence of the capability and appropriateness of the proposed service, to meet the needs of the service user.

Whether the environment’s offering of Gujarat culture and Guajarati speakers actually ‘justified’ another £200 above the asserted normal rate for people of this man’s level of need is another matter, and we cannot know whether Bromley’s usual rate was an arbitrarily low one in the first place.

But that is all irrelevant in this specific context: if there is only one way to meet the assessed eligible needs, then it is not the family’s fault that the provider has had the commercial sense to charge more for providing a scarce resource. It was a NEED and not a want, we think a court would have said, had the matter gone to a court.

If you want help, please consider seeking advice from CASCAIDr via our referral form on the top bar menu of the site.

The full Local Government Ombudsman report of London Borough of Bromley’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/19-001-438

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Inspiration Care Limited at fault for ending its service inconsistently with its service agreement

Decision date: 29th November 2019

What Happened

Mrs X complained on behalf of her sister, Miss Y.

Miss Y was assessed as needing 56 hours’ support a week at home, including an escort to and from her work placement. Miss Y contracted for the services of the Care Provider to deliver her care package using direct payment (DP).

In June 2018, the Care Provider had several staff changes over a short period of time. Mrs X complained to the Council about the effect this had on Miss Y’s standard of care. She said:

  • before the staff changes the Care Provider arranged an on-call service so Miss Y could contact support workers if she was feeling unwell or anxious. Mrs X said this service ended without any warning;
  • the Care Provider escorted Miss Y to and from her work placement. Mrs X has complained about one occasion when the support worker did not arrive which caused Miss Y considerable distress;
  • Miss Y had capacity to manage her own finances, but the Care Provider restricted access to her money, financial records and care notes, by locking them away in a filing cabinet;
  • Miss Y’s support hours were used inappropriately by staff for their personal commitments;
  • the Care Provider lost the keys to Miss Y’s home.

After sending its complaint response, the Care Provider terminated its service agreement with Miss Y, giving 28 days’ notice. Mrs X said the Care Provider did not explain why it ended the agreement and did not give Miss Y enough time to find an alternative care provider. This meant Miss Y had to move into a residential care home for two weeks.

The Care Provider eventually arranged a meeting to discuss Miss Y’s complaint at short notice and therefore she did not have the opportunity to have a representative present.

The Care Provider said it did tell service users about the staff changes and tried to contact Mrs X and her family. It said that the on-call service did not end, it did not keep a copy of Miss Y’s house keys, and disputed that support workers failed to escort her from her work placement. It did however accept that Miss Y was taken to a member of staff’s slimming class, but said Miss Y agreed and they were only there for a short time.

What was found

The LGO said that ‘regardless of which version of events is correct, many of the matters complained about would not meet the threshold for fault or have caused Miss Y any significant injustice.’ Evidence suggested that Miss Y was told about the staff changes, and that despite being taken to a staff member’s private appointment, she agreed to it. Therefore the LGO did not find fault or injustice here.

The LGO did however find fault in the Care Provider restricting access to Miss Y’s finances.

Despite being assessed as having capacity, the Care Provider said it put the restrictions in place to protect Miss Y’s personal information following the introduction of the General Data Protection Regulation (GDPR). However, it then accepted that it misunderstood the GDPR requirements and gave staff further guidance.

Despite the LGO finding fault, there was no injustice found to have been caused to Miss Y, as she still received support each day.

The LGO did not find fault in there being no representative for Miss Y present during their meeting, because the Care Provider gave Miss Y the option to postpone. As Miss Y was happy to go ahead, the LGO could not say the Care Provider was at fault.

The LGO saw ‘some evidence of fault’ in the way that the Care Provider ended its service agreement. It was not at fault over the length of its notice period but was at fault for the circumstances it ended the agreement.

The contract of services between the Care Provider and Miss Y stated 28 days’ notice will be given in writing to terminate the contract.

The Care Provider said it had a meeting with Miss Y to discuss the termination of the service agreement and confirmed the 28 day notice period. It said the written minutes from this meeting were sent to Miss Y.

Miss Y had to move into a residential care home for two weeks as there was a delay before her new provider could arrange care. The LGO did not find the Care Provider at fault for this, as it was outside of their control, and the notice period it gave was in line with its contract.

The LGO did highlight however that ‘while the Care Provider was entitled to end the service agreement, the reason for ending the service was a little unclear and did not seem to fall within the circumstances listed in its service agreement.’ The LGO said that although the minutes were sent to Miss Y, it would have been beneficial to send Miss Y a letter to confirm the outcome of the meeting and the reasons for ending the agreement. The LGO failed to go into what injustice may have been caused by that omission, however.

The LGO recommended that the Care Provider apologise to Miss Y for ‘not ending the service in line with the service agreement.’

Points for the public, service users, and families, advocates or council staff

Notice over a reasonable period is likely to be implied into any support provider’s contract for personal services, because in this country it is accepted that one cannot and should not enforce on a provider the obligation to provide services that are essential to a person’s wellbeing against its will. It would be asking for trouble.

So, the law is that there’s either a reasonable notice period to be implied or an express provision detailing the timing.

These days, a prudent provider would not just stop there, but would detail the circumstances in which it might envisage giving notice, the most obvious one of which would be the person’s direct payment falling behind the market rate for care in the area.

Another typical termination trigger might inability to meet the person’s needs by reason of specified (or unspecified) situations. There are LGO reports in this section as to care homes not really being able to explain why a person could not be re-admitted back to the home after hospital discharge, and not having deteriorated, so the LGO can evaluate the reality of the situation and will find fault sometimes.

Another one might be irretrievable breakdown, a claim to which the LGO tends to respect, because of knowing you can’t make an unwilling provider keep someone on their books.

Our view is that there should also be scope for challenging notice on any such grounds, within providers’ contracts with direct payment clients.

That is because all providers providing services to those who are publicly funded, do owe human rights directly to the funded client. Given the upheaval that termination invariably causes for the service user, it would be only reasonable conscientiously to attempt to resolve a matter, and not regard the making of a complaint as the reason for the termination in the first place.

If you want help, please consider seeking advice from CASCAIDr via our referral form on the top bar menu of the site.

The full Local Government Ombudsman report Inspiration Care Limited’sactions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/domiciliary-care/18-011-402

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R (on the application of LEWIS) v SENIOR CORONER FOR NORTH WEST KENT [2020]

12/02/2020

What Happened

Below, highlights of proceedings by way of judicial review of a coroner’s decision.

Ms L suffered from mental and physical health issues which were exacerbated by a 2010 operation. After the operation Ms L suffered significant weight loss and led to her being sectioned, briefly.

Between 2010 and 2016 her weight was mostly stable, but Ms L still had visits to psychiatric units, and generally struggled to co-operate with hospital staff (eg refusing medication or giving blood samples).

In February 2017 her health deteriorated to the point where she was readmitted to the psychiatric unit. In July she was found partially conscious; she was undernourished, had poor oral hygiene and bed sores. She had lost a significant amount of weight, her medical records were not properly maintained, and clearly her hydration and nutrition policy/plan was not being sufficiently followed.

Just under two weeks later, she died. There was an inquest into her death.

A doctor questioned the aftercare she received at the unit, and Ms L’s family also criticised the unit – stating that they failed to keep proper records of Ms L’s decline, failed to seek proper advice and failed to follow their own policy on nutrition. However, the psychiatric unit stated Ms L was unco-operative and they had trouble feeding her as she had malabsorption anyway.

It was concluded by the jury that Ms L’s cause of death was malnutrition. The coroner highlighted concerns surrounding the communication between psychiatrists and doctors, and the inadequate care they provided at the unit.


During the coroner’s summing up, the claimant queried the coroner’s decision not to allow the jury to rule on the issue of neglect. The coroner stated that it would not be appropriate in this case citing another earlier case as informing that view (R. v HM Coroner for North Humberside and Scunthorpe Ex p. Jamieson [1995] Q.B. 1).

What was found

The Jury’s decision was quashed, and a new inquest would take place.

The claimant only realised that the issue of neglect would not be discussed by the jury when the coroner was summing up. The Administrative Court said that it would have been better practice if the coroner had made his intentions clear at the beginning of proceeding.

Given the surrounding circumstances Ms L passed away under – malnutrition, bad record keeping etc, it was not possible for the Court to understand why neglect was not an issue properly to be left to the jury, or how it could have been detrimental for them to consider the issue.

Therefore the coroner’s closing off the option of a finding neglect from the jury when it should have been properly open to them, was unreasonable, and therefore the inquest was flawed. The Jury’s decision was quashed, and a new inquest would take place.

Points for the public, service users, families and safeguarding

When someone dies in the care of the State an inquest is not always held, but in this situation one was.

Section 1 of the Coroners & Justice Act 2009 requires a Coroner’s investigation to be held if the Coroner has reason to suspect that a person has died:

A violent or unnatural death;

A death, the cause of which is unknown; or

The deceased died while in the custody or otherwise in state detention – this also includes those subject to Deprivation of Liberty Safeguards and the Mental Health Act 1983. The Coroner is under a duty to carry out preliminary investigations to determine whether there then needs to be an inquest hearing.

The main thrust of an inquest is how the person died? And sometimes, by what means and in what circumstances did they die?

The Coroner here had seemingly focused on whether any aspect of the care had been negligent, but neglect is the concept that is the essence of an inquest that might involve system failure, not negligence.

In this context “neglect” means a gross failure to provide adequate nourishment or liquid; or provide or procure basic care or medical attention or shelter or warmth for someone in a dependent position who cannot provide it for himself.

Failure to provide basic care for a dependent person whose physical condition is such as to show that he obviously needs it, may amount to neglect. The required treatment can be for a person’s mental condition if that is the area which obviously calls for medical attention, and a failure to provide mental health treatment can result in a neglect finding. However there cannot be a finding of neglect unless there is a clear, causal connection between neglect and the death. Most cases of neglect will be cases where there has been a failure to provide care rather than cases of providing the wrong type of care. “Neglect” in the coronial sense has nothing to do with “negligence” as in civil negligence.

The reason bereaved people sometimes want a finding of neglect is that changing a culture within an organisation or getting a ‘lessons learned’ approach embedded is very hard if nothing has been found to have happened that was less than adequate.

There is no appeal from an Inquest, but there is judicial review, on the normal grounds of irrationality, error of law, etc.

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