Archive for Care and Health Law Cases – Page 2

UNIVERSITY COLLEGE LONDON HOSPITALS NHS FOUNDATION TRUST v MB (2020)

In this case, the NHS Foundation Trust applied for an interim injunction on behalf of one of the hospitals it operated, the National Hospital for Neurology and Neurosurgery (a 12-bed ward for those requiring acute neuropsychiatric care for up to 14 days where the patient’s stay could be extended to 28 days in extreme circumstances).

The Trust had sought to discharge one of its patients, referred to as MB, but she had refused to leave, saying that the care package being offered by the London Borough of Camden Council was insufficient. She had mental capacity but a diagnosis of functional neurological disorder with variable upper and lower limb weakness, tremor and speech disturbance, chronic migraine, fatigue and generalised pain, complex psychological conditions, including PTSD, disrupted attachment, OCD, possibly borderline personality disorder and Asperger’s syndrome.

MB’s representative argued that due to her disabilities (she was wheelchair and bed bound) and complex mental health conditions, discharging her without properly addressing her concerns could lead to her suffering extreme distress as well as being at risk of self-harming or of committing suicide. Discharging her in this way would leave the hospital in breach of its responsibilities under articles 3, 8 and 14 of the European Convention on Human Rights (ECHR) and would amount to disability discrimination and a breach of the duty to make reasonable adjustments, contrary to ss. 29 and 149 of the Equality Act 2010, it was argued.

MB had been residing at the ward since collapsing at home on February 18th 2019.

Staff felt that she could be discharged safely and the local authority had offered adapted accommodation and 24-hour care for 1 month and then extended to 3 months by concession for reassurance, but MB wanted guaranteed care for a whole year and refused to leave.

The judge dismissed the hospital’s subsequent possession claim for MB’s room as ALL such claims have been stayed for 90 days under CPR Pt 55 due to the the COVID-19 pandemic. However, the Civil Procedure Rules do not apply to preclude a claim for an injunction, which the hospital applied for on April 3rd.

The judge heard from MB and her sister, and from hospital staff. Most of the evidence for her prompt discharge from the ward was provided by Dr Christofi, a consultant neurologist working for the hospital. Dr Christofi described MB’s behaviour as unmanageable and often aggressive and threatening. He said “It is of paramount importance that [MB] is discharged from [the Hospital/UCLH] immediately. Not only do we need the beds for critically unwell patients, but remaining in a hospital environment places [MB] at unnecessary risk of contracting COVID-19. It is therefore undoubtedly in [MB’s] best interests to be discharged to a safer location urgently.” Dr Christofi was of the view that the care package consisting of 24hr care was reasonable and that there had been no self-inflicted risk incidents to indicate that MB was a risk to herself.

“She engages in activities such as watching films on her laptop. No psychotic symptoms have been observed (relating to hearing voices, nihilistic delusions etc over the time she has been in hospital). Her plans for DSH [deliberate self-harm]/suicide and not in the context of depression. Her history suggests threats of DSH when her needs are not met…She may well try DSH if she found herself in a situation where her perceived needs are not met and I cannot predict with certainty that she will not harm herself.there are no mental health reasons I can think of to keep her in this hospital.”

MB was not allowed to adduce independent medical evidence. Her main concerns with the care package were due to her distrust of Camden Council and the impending 3 month review which she believed would strip her of the 24hr care.

Although this was not an application for judicial review, MB was effectively raising a public law defence to a private law claim for possession, which is allowed as a matter of principle, without any application for permission, as would be essential if she had been the applicant in the Administrative Court. The judge could not see any good reason for permitting her to adduce evidence that would not be admissible on a direct public law challenge; judicial review would not be an appropriate forum for challenging a clinical view that a person was fit for discharge. Moreover, clinicians cannot be required to provide treatment contrary to their own clinical judgement; the treating team’s view was that the patient did not require hospital care and could safely be discharged.

The judge concluded that MB’s care needs could certainly be met by the care package offered to her by Camden. He felt that the Council had made considerable efforts to accommodate her concerns but that it was unrealistic to think that it would ever satisfy them, due to her distrust in them and the hospital. He said that there was a moderate to low risk of MB resorting to suicide or self-harm if discharged now but accepted that she would likely suffer extreme distress. In either case, this could be managed by the 24hr care offered in her care package, in his view.

Regarding the nature of the property rights being protected, the judge said this:

“The Claimant brings this claim to enforce its private law rights as property owner. As a matter of private law, MB became entitled to occupy the room she is currently in because the Claimant permitted her to do so by admitting her to the Hospital. The Claimant has now terminated her licence to occupy that room. It follows that she is now a trespasser.

Ordinarily, the Claimant would be entitled to seek an order for possession pursuant to CPR Pt 55: see e.g. Barnet Primary Care Trust v H [2006] EWHC 787 (QB), (2006) 92 BMLR 17 (Wilkie J); Sussex Community NHS Foundation Trust v Price (HHJ Coe).

That is not currently possible because of the general stay on possession claims effected by CPR 51Z PD.

The stay does not, however, affect claims for injunctions: see para. 3 of the Practice Direction. A property owner is in general entitled to an injunction to enforce its rights as against a trespasser: see the decisions of the Court of Appeal Manchester Corporation v Connolly [1970] Ch 420 and Supreme Court in Secretary of State for the Environment, Food and Rural Affairs v Meier [2009] UKSC 11, [2009] 1 WLR 2780.

A hospital is no different from any other proprietor in this regard.”

The order made was as follows, regardless of the realistic prospect of vociferous non-co-operation:

(a) MB must leave the Ward by [a particular time], provided that by that time the Hospital has made arrangements to facilitate the transfer of MB (by ambulance trolley and ambulance) and her belongings from the Ward to the accommodation to which she is to be discharged;

(b) if such arrangements are made, MB must not obstruct or impede their implementation;

(c) MB may thereafter not re-enter the Hospital’s premises without the prior written permission of the Claimant, save if admitted by ambulance.

If MB does not comply, she will be in contempt of court and the full range of the court’s coercive powers will be available to enforce it.

The judge went on to consider whether MB had any prospect of defending the claim, because if she did, he could not conscionably grant an injunction, because it would effectively determine the case on possession, prematurely.

He said this too:

“It is a tragic feature of MB’s complex constellation of mental health difficulties that she frequently suffers from extreme distress, whether she is in hospital or not. But, if the Hospital were precluded from doing anything which might precipitate such distress, it would soon end up in a situation where it was legally precluded from taking any step other than in accordance with MB’s wishes. In this case, MB would be entitled to insist on the provision of whatever she considers she needs as a condition of discharge from hospital, even if the result of her doing so were that the needs of others could not be met. That is not the law, because her needs are not the only ones that the law regards as relevant.

In some circumstances, a hospital may have to decide which of two patients, A or B, has a better claim to a bed, or a better claim to a bed in a particular unit, even if ceasing to provide in-patient care to one of them will certainly cause extreme distress or will give rise to significant risks to that patient’s health or even life.

A hospital which in those circumstances determines rationally, and in accordance with a lawful policy, that A’s clinical need is greater than B’s, or that A would derive greater clinical benefit from the bed than B, is not precluded by Article 3 ECHR from declining to offer in-patient care to B.

This is because in-patient care is a scarce resource and, as Auld LJ put it in R v North West Lancashire Health Authority ex p. A [2000] 1 WLR 977, at 996, “[i]t is plain… that article 3 was not designed for circumstances… where the challenge is as to a health authority’s allocation of finite funds between competing demands”.

Decisions taken by a health authority on the basis of finite funds are, in my judgment, no different in principle from those taken by a hospital on the basis of finite resources of other kinds.

In each case a choice has to be made and, in making it, it is necessary to consider the needs of more than one person.

Analytically, the reason why a decision to require a patient to leave a hospital is unlikely to infringe Article 3 ECHR is because it is based on a prior decision not to provide [further] in- patient care. Such a decision engages the state’s positive (and limited) obligation to take steps to avoid suffering reaching a level that engages Article 3, rather than its negative (and absolute) obligation not itself to inflict such suffering. Where the decision to discontinue in-patient care involves the allocation of scarce public resources, the positive duty can only be to take reasonable steps to avoid such suffering: cf R (Pretty) v Director of Public Prosecutions [2002] 1 AC 800, [13]-[15] (Lord Bingham). It is difficult to conceive of a case in which it could be appropriate for a court to hold a hospital in breach of that duty by deciding, on the basis of an informed clinical assessment and against the background of a desperate need for beds, to discontinue in-patient care in an individual case and, accordingly, to require the patient to leave the hospital. The present is certainly not one.

Even though the decisions to cease to provide in-patient care to MB and to require her to leave, plainly interfere with MB’s right to respect for private and family life, the evidence adduced by the Claimant amply demonstrates that the interference was justified in order to protect the rights of others, namely those who, unlike MB, need in-patient treatment. Bearing in mind the broad discretionary area of judgment applicable to decisions of this kind, there is no prospect that MB will establish the contrary.”

Comment

People may need to know during the Covid 19 period whether they can bring proceedings for possession against anyone whom they would wish to evict for a good reason – residential licensees, for instance, sharing premises with a resident landlord, or from a care home, when the home does not wish to have the person back, after a spell in hospital. This route of seeking an injunction enables some protection of a property owner’s rights, even if no possession order can be granted.

The judge did accept that a decision by an NHS hospital not to provide in-patient care in an individual case might, in principle, be challengeable on public law grounds, by judicial review if the decision were tainted by improper purpose or had been made in breach of statutory duty or otherwise contrary to law. So that preserves public law challenges for anyone in the Covid19 period to raise, for instance on the basis of a blanket policy of non admission or non selection of anyone aged over 90, or just based on being disabled intellectually or physically, assuming the property owner is a public body amenable to judicial review, such as hospitals. The difference between this and any other case that might arise is that here, the view was very firmly that this woman MB did not NEED any other treatment the hospital could give her, whereas in a Covid competition for a ventilator, it will be different, one can only presume.

An interesting question arises in the context of care homes, who do owe human rights, directly to publicly funded clients, but who are not public bodies in the normal sense required by public law before one can bring judicial review – they do not shoulder the actual public function of a council in meeting needs, when contracted to the council, nor act as a delegate.

If one reads the full case, one discovers that the offer of 24 hour care was being made in the context of a tenancy, which MB had been willing to sign. We do not know how that came about but it is a dearly held principle of CASCAIDr’s legal experts that an offer of care cannot be made conditional upon a council’s expectation that a person provides themselves with housing, and pays for it, before it will provide the care. MB had declined services in her own home; she had declined services in a care home setting, and the Council had just kept on trying to obtain her agreement instead of treating her as capacitated to refuse offers they were satisfied were reasonable. That is not a necessary position for any council to take when a person blocking a bed has capacity; but if it does continue to try to reach agreement, that is the council’s choice, and it must still act under the Care Act.

As noted Ground floor wheelchair accessible accommodation was eventually found which could be secured through a tenancy as opposed to a temporary licence. MB’s willingness to move to the particular accommodation finally identified and adapted must be assumed, because she had signed a tenancy, but if she had been told that she was obliged to take on that tenancy in order to obtain discharge from hospital (as happens to many other people with autism in ATUs, for instance) we think that that would have made for a much stronger public law challenge against the council in a different court.

Here is the link to the full judgment:

https://www.bailii.org/ew/cases/EWHC/QB/2020/882.html

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R (on the application of Glynis McKeown) v Islington LBC (2020)

What Happened

C was 63 years old, and had had health difficulties since the age of 38. In 2019 she had her right leg amputated above the knee, resulting in her being wheelchair bound.

She was a secure tenant of a garden maisonette, and the only way C could get into her home was for someone to carry her up or down the steps to the front door. She applied to the Council for a disabled facilities grant (DFG) to fund a platform lift.

The Council refused funding. It stated that it found the home unsuitable for C, the works were not reasonable or practicable, and offered to find her and her family suitable alternative accommodation.

S23 and 24 of The Housing Grants, Construction and Regeneration Act 1996 set out the purposes of grants, and the approval of applications;

S23 Disabled facilities grants: purposes for which grant must or may be given

(1) The purposes for which an application for a grant must be approved, subject to the provisions of this Chapter, are the following:

(a) facilitating access by the disabled occupant to and from – (i) the dwelling

S24 Grants: approval of application.

(3) A local housing authority shall not approve an application for a grant unless they are satisfied –

(a) that the relevant works are necessary and appropriate to meet the needs of the disabled occupant, and

(b) that it is reasonable and practicable to carryout the relevant works having regard to the age and condition of – (i) the dwelling …”

C declined this offer as she was comfortable in her home and was close to her friends and family. She sought judicial review over the Council’s decision to refuse her application.

What was found

Section 23(1) was satisfied in this case. C could not enter or exit her home, thus a grant for facilitating access (the relevant purpose) must be approved. That means that the Claimant has “established [her] grant eligibility in principle” relying on the judgement in the R(B) v. Calderdale MBC case [2004] EWCA Civ 134 [2004] 1 WLR 2017 at §28) (under section 23(1)(a)).

Needs’

The only means of facilitating the Claimant’s access to her home was to install a platform lift. In order to determine whether this is “necessary and appropriate”, one has to determine what ‘needs’ are referred to in section 24(3)(a). C stated that she had a ‘need’ to access her home, whereas the Council said this was too narrow.

The Judge started by considering Bloomsbury International Limited v. Sea Fish Industry Authority, which stated that “In matters of statutory construction, the statutory purpose and the general scheme by which it is to be put into effect are of central importance.”

The Judge also stated that “The overriding purpose of the DFG is to make the dwelling or building suitable for the accommodation welfare or employment of the disabled occupant1

“[Sections 21 and 22 of] the statute is making clear that DFGs are not restricted to local authority tenants or tenants more generally but extend to disabled persons whether they are owner occupiers, tenants or simply occupiers (section 22A). The reason for that seems self-evident when one examines the list of purposes in section 23(1) which include facilitating access to the dwelling, making the dwelling safe, facilitating access to the living room, bedroom, bathroom etc. These are very basic needs which persons who are not disabled take for granted and Parliament has decided that grants in respect of such matters will be mandatory”

“The fact that different forms of tenure at the relevant property are included within the terms of DFGs means that in principle the interpretation of sections 23 and 24 must be capable of accommodating not only local authority tenants but tenants generally and indeed owner occupiers. This is important in relation to one of the main planks of the Defendant’s case which is that the Claimant’s home is not suitable for her, that the Defendant will look for a new alternative home and rather than carrying out expensive and not straightforward works to the Claimant’s home, the grant should be refused and the Claimant should move to a new home. But the fact that the terms of sections 23 and 24 must be applicable to all, including owner occupiers, is a strong indication against the Defendant’s position. Had the Claimant exercised her right to buy, it would not in my judgment be open to the Defendant to refuse the grant on the basis that she must sell up and move elsewhere. The structure of the Act, the legislative history and its purpose which relates, according to section 23, to “the dwelling”, i.e. the person’s home for the time being, exclude such an approach.”

“True it is that an external platform lift will do nothing to improve the suitability of the Claimant’s kitchen or bathroom for a disabled person but that is in my judgment the wrong question on three counts. First and very obviously a platform lift is confined by its nature to the Claimant’s needs to access/exit her home because that is what brings the application within section 23; second because suitability is a housing test which may well be the correct test for selecting suitable accommodation but is not one which is to be found in section 24(3); third because this is the Claimant’s application for monies to do works for a narrowly defined purpose, not a request to the Defendant to do works to her home as might be the case under other legislation applied by the Defendant to the Claimant’s or her husband’s needs

Effectively, the judge stated that the overriding purpose of the legislation and grant system was to make dwellings suitable for their occupants, so the appropriateness of any DFG application should be referenced against the need it was designed to serve. In this case it was the need to access and exit her home.

Necessary and appropriate

The judge stated that platform lift was necessary and appropriate;

“it is common ground that the platform lift is necessary in the sense that a stair lift will not do the job (due to additional steps after the main run of steps). It also does not appear to be in dispute that a platform lift is “appropriate” in the Calderdale sense that it would permit the Claimant to enter and exit her property using her wheelchair.”

The Council had given numerous reasons why the DFG application failed the “necessary and appropriate to meet the needs of the disabled occupant” test, to which the judge did not agree with. The Council mainly argued that C’s maisonette would not be suitable in the long term for her;

“The assessment by (the Council) was directed at whether difficulties accessing the internal stair lift “may result in her current accommodation becoming increasingly unsuitable for her long-term needs”. In my judgment that is not a relevant consideration on the issue of “necessary and appropriate to meet the needs” of the Claimant in section 24(3)(a) given my conclusion on the needs being referred to, i.e. the needs to access and exit the home.”

“Section 24(3)(b) requires the Defendant to be satisfied “that it is reasonable and practicable to carry out the relevant works having regard to the age and condition of the dwelling”. Previously section 24(4) (now repealed) added to consideration of the age and condition of the dwelling whether it was fit for human habitation. Dyson J in ex p Mohammed cited above expressed the following view: “No doubt, the reason for these conditions was an appreciation of the fact that it was not a sensible use of resources to make a DFG to improve an old, dilapidated building …””

However, the judge pointed out that the “considerations taken into account by (the Council) do not relate to the age or condition of the dwelling but rather to the suitability of the dwelling for the Claimant’s care needs…. it cannot be said that the lack of suitability in various respects of a person’s home excludes such a person from access to a grant in order to facilitate the basic need of accessing/exiting the home.”

The judge concluded; “Finally, I return to the point which I described earlier as one of the main planks of the Defendant’s case. This is the point that the Claimant’s need to leave her home would be more suitably met by a move to wheelchair accessible accommodation. For reasons which will be apparent with regard to my conclusion that the application for the DFG for a council tenant must be considered on the same basis as an application from an owner occupier and that what is being considered is the need to access the dwelling which the applicant occupies as his/her home, in my judgment it is not lawful to refuse a DFG on the ground that the Claimant must move her home.

Remedy

C sought orders compelling the Council to approve the DFG and quickly commission the work. However there was confusion as to the Council’s policy; C was supposed to commission the work in accordance with the grant. So, the judge issued an order to quash the decision, and have the Council reconsider its decision according to the law as laid out.

Comment

This decision lays to rest a longstanding moot point, in local government law, which may well be of relevance to the much more common question whether a council can expect a person to move to a house of its own choosing, in order to deliver cheaper or more cost effective social care. We have always thought that the answer would be No, applying public law principles, despite the discretion on the part of a council to say We believe that the needs could be met by pointing at this that or the other community based service so we will not be providing anything ourselves.

We think it’s markedly different where the only way of accessing this community based alternative would be for the client to spend money of their own on an long term ongoing paying for accommodation, when in fact the can point to the Care Act and say – “Here I am, living here, these are my apparent needs – please care plan now for meeting them.”

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Gerald James v Hertsmere Borough Council Court of Appeal (Civil Division)

This case concerned the legality or otherwise of a contracted-out review decision for a district council’s housing authority, made under section 202 of the HA 1996.

Of more general applicability however, was the wider question of the scope of the jurisdiction of the county court whenever hearing homelessness appeals.

The facts of the case

In November 2017, the appellant, a Mr. James, applied to Hertsmere BC for accommodation on the basis that he was homeless. The authority made its inquiries under section 184 of the Housing Act and on the 29th January 2018 notified Mr. James that he was not regarded as being in priority need and was intentionally homeless.

This being a pre-Homelessness Reduction Act case, the council only had a duty to provide advice and assistance. Prior to the passing of the Homelessness Reduction Act on 5th April 2018, anyone who was found to be homeless, but not in priority need, was only owed the limited advice and assistance duty.  This was a duty to provide advice and assistance for someone to find their own accommodation, and in reality, this often amounted to no more than giving applicants a list of private landlords.

Since the passing of the HRA, an applicant is owed the prevention duty (threatened with homelessness within 56 days) or the prevention duty (homeless) which in turn, both require an a housing assessment and personalised housing plan to be completed, regardless of priority need.

On the 6th February 2018, Mr. James applied for a review of the decision that he was not in priority need pursuant to section 202 of the 1996 Act.

Where an authority carries out a statutory review it must be must be carried out within 56 days unless a longer period is agreed between the applicant and the reviewer: regulation 9 of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999, which was applicable in this case, and regulation 9 of its successor, the Homelessness (Review Procedure etc.) Regulations 2018.

The review took some 28 weeks to complete, and on the 24th August 2018 Mr. James received the outcome of the review which confirmed the original decision that he was not in priority need. On the 15th September 2018, Mr. James appealed that decision to the county court under section 204.

The authority in this case had contracted out its homelessness review functions to a private sector property management organisation. At the time of Mr James’s review 2 of the senior roles were vacant, which meant that responsibility for entering into a new contract travelled up the chain to the chief executive.  A much more junior official reached an agreement with the company to extend the contract to cover the period during which Mr James’ review decision was reached. 

The appellant argued that the reviewer had acted outside the framework of the Housing Act because its contract with the council had only been authorised for a period of 12 months, and this decision had actually been completed outside of this period.

The court gave this argument short shrift, stating that as long as the decision had been started within the contractual period it still had the legal authority to make the decision. The review decision was lawfully made because it was commissioned during the review period.

The jurisdiction of the county court in homelessness appeals

It is the wider issue in this case however, which is of interest to local authorities and advisers alike, that of the jurisdiction of the County Court when considering a point of law in a homelessness appeal.

The central issue was whether the jurisdiction of the county court was limited to considering a point of law arising from the review decision, or whether it had wider powers similar to those of the High Court on judicial review.

Lord Justice Peter Jackson, giving the leading judgement, reviewed the conflicting authorities on this issue.

In Nipa Begum v Tower Hamlets LBC Auld LJ took the clear view that

“a point of law” includes not only matters of legal interpretation but also the full range of issues which would otherwise be the subject of an application to the High Court for judicial review, such as procedural error and questions of vires, also of irrationality and inadequacy of reasons”.

However, in Panayiotou v Waltham Forest LBC, another case which involved a challenge to the authority’s contracting-out policy, Lewison LJ commented:

“The original right to apply to the Administrative Court for judicial review was transferred to the county court (under s204) because county courts were thought to have expertise in housing not administrative law generally. The right of appeal against a decision on a review is a right limited to a point of law arising from the review decision, whereas (in this case) the points raised are challenges to Haringey’s antecedent decision to contract out its functions.”

Jackson LJ concluded that normal statutory construction and the majority of the authorities pointed to the county court having jurisdiction not merely over points of law which could be described as “points of housing law” but also the full range of issues which would otherwise be the subject of an application to the High Court for judicial review. He also noted the practical advantages of this interpretation, such as the time and expense involved in applying for judicial review, and the splitting of grounds of appeal leading to duplication of court time and costs.

In my view, the correct interpretation of s. 204 Housing Act 1996 is that a point of law arises from a decision if it concerns or relates to the lawfulness of the decision. Both normal statutory construction and the preponderance of authority point to the county court having jurisdiction to hear appeals from s. 202 review decisions that is not limited to points of law that might broadly but imprecisely be described as “points of housing law” but extends to the full range of issues that would otherwise be the subject of an application to the High Court for judicial review. These include challenges on grounds of procedural error, the extent of legal powers (vires), irrationality, and inadequacy of reasons.” 

Relevance for advisers

Many practitioners will be well aware of the practical difficulties, in terms of time and expense, of applying for judicial review. Specialist housing advice and often the services of a barrister will be required, and it can be difficult to match up these services with individuals who often have multiple and complex needs, who may not have the necessary documentation for a legal aid claim necessary to fund this costly endeavour.

Writers have commented that local authorities are increasingly running arguments based on the third and fourth limbs of Bean LJ’s decision in the Adesotu case by:

  • Asserting that the ground of appeal does not ‘arise from the decision’ and
  • Relying on the ‘respondent’s notice point’ in Adesotu (questioning whether the issue had been raised at any stage before the review decision).

So, according to Nick Bano of Garden Court Chambers’ housing team, “applying James an appellant could challenge something that took place before the review process, whereas applying Adesotu s/he could not; applying James an appellant could challenge something that merely ‘concerns or relates to’ the review decision, whereas applying Adesotu s/he could only challenge the lawfulness of something in the decision itself.

On the second Adesotu point (the ‘respondent’s notice point’ – whether an appellant may rely on something that had not been raised before the review decision), the contrast between the two cases is even stronger.

In Adesotu Bean LJ upheld HHJ Luba QC’s decision that there is no jurisdiction to consider a point that had not been raised before the review decision was made.  In James, on the other hand, Peter Jackson LJ reminded us of what Sedley LJ had said in Nipa Begum: “The jurisdiction of the county court is at least as wide as that of a court of judicial review” (affirmed in Runa Begum).”

This decision is therefore welcome authority for the proposition that, relatively straightforward appeals in the county court are not limited to considering mistakes of legal interpretation in the review decision itself, but can also now be challenged on traditional public law grounds such as procedural error, irrationality, inadequacy of decisions and, as in this case, that the authority was acting outside its legal powers.

https://www.bailii.org/ew/cases/EWCA/Civ/2020/489.html is the link to the full judgment of the court

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R (M) v London Borough of Newham [2020] EWHC 327 Admin

What was the case about?

The case concerned a family with 4 dependent children who had spent nearly 15 years in three bedroomed ‘temporary’ accommodation provided by the London Borough of Newham following the acceptance of a full homelessness duty in 2005. The family included a daughter who suffered from a number of disabilities necessitating specialist bathroom facilities, and the family had raised this, together with the need for larger accommodation, with Newham on a number of occasions.

In December 2017, Newham notified the family that the authority had secured a four bedroomed house for the family and that it regarded the offer as suitable. In the offer letter, Newham warned the family that if they did not accept the offer then their case would be closed subject to a review on suitability.

In view of the warning, the family accepted the offer, but maintained that it was not suitable because it did not provide and could not be adapted for the bariatric bathroom, disabled toilet and walk-in bath or shower access, all of which were required for the hygiene and safety of the disabled child.

The review request was accompanied by a paediatric occupational therapy report supporting the family’s view that the property was not suitable for their daughter’s needs.

In February 2018, the authority’s review officer concluded that, in the light of the report from the occupational therapist, the temporary accommodation offered to M was not suitable.

It was accepted that helping the daughter to mobilise was causing shoulder injury to the mother. However, no further offer of accommodation was forthcoming.

In September 2019, the family made an application for judicial review on the basis that the defendant local authority was in breach of its statutory duty, under section 193(2) of the Housing Act 1996, to provide suitable accommodation. The hearing was expedited but more than two years after the claimant and his family had moved in, they were still living at the alternative accommodation.

Newham made submissions on the basis that the duty to provide suitable accommodation was not subject to any particular timescale, and that they had taken sufficient steps to try to secure alternative accommodation, despite the failure to actually do so (in part they alleged due to a failure by the family to make appropriate bids – this was disputed).

Newham also argued that the accommodation could be considered “suitable” on a short-term basis even if accepted that it would not be reasonable to continue to occupy it on a long-term or permanent basis.

What did the court decide?

The court decided that Newham was in breach of their statutory duty and had been since the date of their decision letter in February 2018 when they had acknowledged that the property was unsuitable.

The case of Birmingham City Council v Ali & Ors [2009] UKHL 36 had confirmed that in cases where accommodation was unreasonable to continue to occupy, resulting in a decision of homelessness, it could, nevertheless, be found to be suitable for a short-period or on a temporary basis. The judge distinguished this present case however, as the reviewing officer’s decision had not considered whether the family was in fat homeless but whether or not the accommodation they had been placed in was suitable; the family’s accommodation could not be considered suitable given that the review decision had specifically considered this fact and had concluded that it was not.

Once the accommodation had been deemed unsuitable, then the local authority must be regarded as in breach of its statutory duty to secure suitable accommodation, with a short delay only permissible where an authority had concluded that the accommodation was suitable in the short-term. The duty was not to provide suitable accommodation within a reasonable time, where the authority had already accepted it was not suitable.

The courts have differed over the years as to whether there is a concept of a reasonable time in which to discharge the Part VII s193 duty, in the context of people living in unsuitable accommodation at the time and thus homeless albeit housed.

In R v Newham LBC ex parte Begum (1999) 32 HLR 808 Collins J said this:

“While I have considerable sympathy with the Council, I do not think that the qualifications which [the Council] submits are necessary can be read into the words of the statute. Parliament has not qualified the duty in any way: it could have done. However, the situation for the Council is not quite as desperate as might be thought. While the duty exists, no court will enforce it unreasonably.” (page 816)

  1. He added:

“Furthermore, whether or not accommodation is suitable may depend upon how long it is to be occupied and what is available. It may be reasonable to expect a family to put up with conditions for a few days which would be clearly unsuitable if they had to be tolerated for a number of weeks. But there is a line to be drawn below which the standard of accommodation cannot fall.” (page 816)

Collins J’s analysis of the law did not preclude the possibility that a period of time would elapse between the authority’s acceptance of the section 193(2) duty and the making available of alternative accommodation. But this was on the basis that the concept of suitability would, in appropriate cases, allow that the existing accommodation was “suitable” for a short period of time and that the authority therefore was not in breach.

The judge in this case said that even if there was a concept in legal terms of a reasonable period in which to provide properly suitable accommodation, because for instance the inappropriateness of the housing that led to the finding of homelessness was not so grave as to make it immediately suitable for a little while longer, this had been well exceeded in this case.

The difficulties for A and her family caused by the current accommodation significantly undermined her health and well-being, her dignity and her ability to lead a reasonably independent life at home. They also impacted on A’s family and on her mother, in particular. The evidence is that, for some time, these issues had needed to be addressed as a matter of urgency. There was no evidence that Newham had taken the family’s case seriously and had made all reasonable efforts to secure suitable accommodation.

A judge at an earlier pre-trial stage had ordered a witness statement from the council regarding the steps taken and the reason for the difficulties experienced. The judge at the trial thought it would have been reasonable for the court to expect a “procurement officer” who had been involved in the claimant’s case, to give evidence on behalf of the defendant which explained, in detail, the efforts which had been made on the claimant’s behalf and exhibited documents to support his evidence, for example from the claimant’s case file. The officer who provided a witness statement was called a ‘Local Space Manager’ and he mis-stated the young woman’s requirements and thus exaggerated the difficulties faced by the council. It was not clear what researches he had carried out, or what the sources of his information were, or how he was able to assess the bathroom facilities in properties he mentioned. The judge said “…it is not credible that, as he appears to imply, only five 4 bedroomed properties have been available for rental in the private sector in the last two years, even looking as far afield as Nottingham.” 

The claimant had sought a declaration to this effect together with a mandatory order requiring the defendant to provide him with suitable accommodation within a period of eight weeks. The court made a mandatory order requiring Newham to provide suitable accommodation within 12 weeks. The judge said that the council’s short-lived efforts that were made in May 2019 when judicial review was threatened and in December 2019 after proceedings were issued suggested to him that a mere declaration would not lead to a sustained and thoughtful effort to assist the claimant and his family.

Learning for advisers and points for the public and for councils

This case established that, where a review clearly states that accommodation is unsuitable, then that decision immediately puts a local authority in breach of its statutory duty to provide suitable accommodation under section 193(2) Housing Act 1996.

Such a decision cannot be read as meaning that that accommodation may be suitable in the short-term; immediate and comprehensive (to be realistic in difficult times, best endeavours) efforts should be made by the local authority to secure accommodation (in which case relief within judicial review proceedings may even be withheld in certain circumstances because all JR remedies are discretionary and no council will be ordered to do that which is genuinely impossible).

Advisers should be aware that, in an application for a mandatory order the courts may be willing to grant some relief to authorities. This is because the courts recognise the practical difficulties for authorities in sourcing scarce accommodation in the context of a housing crisis where immediate compliance might be impossible.

At CASCAIDr we think that this case may well help relatives of those seeking the provision of specialist housing for people waiting to come out of assessment and treatment units, or anyone coming out of mental hospital with s117 rights. We like the line of case management directions as to a witness statement as to the efforts made, and the negotiations attempted because we believe that when commissioners say that ‘there’s nowhere suitable’ what they really mean is “there’s nowhere suitable for the price that we are willing to pay” or that there’s “nowhere where we’ve commissioned the necessary support services where there’s a vacancy”. We think that that is a downgrading of a similar provision duty under social services and mental health legislation as the securing duty discussed in the case above, such that it is seen as a discretion, in the end, not a duty, at all, any longer.

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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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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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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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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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PB and JB v Priory Group Ltd [2018] MHLO 74 – May 10, 2018

This was a case for damages for unlawful psychiatric detention and restitution of fees demanded for that ‘service’.

PB found herself compulsorily detained at the Priory Hospital during an outpatients’ appointment in September, 2016.

She was detained under s5(2) Mental Health Act 1983 under a provision that applies ONLY to the detention of in-patients (emergency detention).

The heading of Section 5 refers to patients “already in a hospital” and s5(2) itself is expressly limited to “a patient who is an in-patient”.

PB was at the Defendant’s hospital simply to discuss a lower dose of her medication.

Within 15 minutes of the start of that appointment she was told that she was being detained under Section 5(2) and could not leave.

She ran out of the room and was prevented from leaving the facility by hospital staff and taken upstairs and ‘given’ a bed.

Her husband who was with her was required to make an immediate down-payment of £10,626, in respect of the Priory’s daily rate of £834.

She was detained at the hospital for 17 days.

  • The first 72 hours was purportedly done under Section 5(2).
  • The next phase was done under no power at all for just under seven hours.
  • The last phase was done under Section 2 of the Act (but without any explanation being provided on the Form A2 for not consulting a doctor who knew the patient)

until discharged by her Responsible Clinician on 17 October 2016.

When the Hospital later pursued recovery of around £3,000 in outstanding fees, the couple consulted solicitors who advised a complaint.

After a complaint was rejected by the hospital, the couple brought proceedings against the Defendant’s Priory Hospital in North London. The woman claimed damages for the whole period of her stay for unlawful detention at common law and contrary to Article 5 ECHR.

The human rights claim was predicated on the basis that the Defendant (albeit a private hospital) was a public authority for the purposes of Section 6 of the Human Rights Act 1998 when compulsorily detaining patients under the Mental Health Act 1983.

The man claimed restitution of the fees he had paid on the basis that it would be contrary to public policy to allow a tortfeasor to profit from its wrong.

Procedings seeking permission to bring the claim, as required by s139, were compromised, and the claim was allowed to proceed. An extension to the period for issuing County Court proceedings was agreed. The Defendant made a CPR Part 36 offer of £11,500 plus legal costs on 27 April 2018 which the Claimants accepted on 11 May 2018.

The Claimants’ solicitors had valued the claim in the Letter of Claim to the Defendant “at the same rate as you charged our client for remaining forcibly in your hospital, which is £834 per day.”

However, the Claimant was advised to accept an award calculated on the basis of a higher level of compensation for a shorter period – the 72-hours of the detention under s5(2) only, plus the next 6 hours 45 minutes. The reasoning was that, as against the Hospital, there was a litigation risk that the application under s2 that followed might have been held to have appeared to be “duly made” and thus lawful for the purposes of s6(3) of the Act.

Following compromise of the claim, the settlement was notified by the Medical Protection Society to the Compensation Recovery Unit. This is part of the DWP. If you get damages as a result of clinical negligence the CRU must be notified of the details of your claim by the organisation (or person) paying the compensation (the compensator). The CRU records all welfare benefits you receive as a result of your injuries. If you are awarded compensation then the compensator is liable to repay the DWP for any injury-related benefits you receive to prevent double compensation through the award and the benefits. 

It was subsequently accepted by that unit that this settlement did not fall within the scheme, it not being clinical negligence that was the problem here.

The Hospital did not continue its pursuit of the £3,000 arrears.

[Matthew Seligman of Campbell Taylor Solicitors has provided this summary to a number of sources.]

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