Mr Justice Peter Jackson:
Introduction
- In this case a local authority accepted a young man with disabilities into respite care for a few days at the request of his father and then kept him there for a year. The question is whether this was lawful.
- Steven Neary is 21. He has childhood autism and a severe learning disability. He is a tall, heavily-built young man who requires supervision and support at all times. He needs things to be predictable and becomes highly anxious if he is not carefully prepared for change of any kind. His life is structured around his home, with reassuring daily routines and rituals and a weekly diary of outings to swimming pools, the gym or a day centre.
- Steven is usually fun to be with, with a good sense of humour and a good memory. However, he can become moody and anxious, particularly when faced with unexpected change, or made to do things that he dislikes. He can lash out, not in malice but rather in the manner of a small child. As a result, he needs to be closely supervised when he is out in the community to ensure his own safety and that of others. He needs one other adult present at all times, and two adults when he is out of the house.
- Steven's parents are Mark and Julie Neary. They brought him up together and accepted increasing levels of professional support as his needs became more evident. He attended a special school until the end of 2007. When his parents separated in 2009, Steven moved with his father to live in a flat in Uxbridge, with his mother visiting regularly.
- The demands of such high levels of care are beyond even the most dedicated parents on their own, and particularly for a one-parent household where the parent works full-time, as Mr Neary does. As a result, Steven depends both on his family and on social services – he cannot do without either. Since 2007, the Adult Social Care Department of The London Borough of Hillingdon has provided extremely high levels of support to Steven and his parents. Until 2010, and the events described below, this was delivered as part of a genuinely cooperative partnership with the family, which not only benefited Steven but was completely essential to making his day-to-day life run smoothly.
- Hillingdon's services to Steven and his parents have included a day centre, regular fortnightly overnight respite care, the support of social workers, the coordination of Steven's medical needs, a successful period of residential assessment in a small behaviour support unit (referred to here as "the support unit") from January to May 2008, and the provision of high levels of financial support from public funds. In particular, Hillingdon have funded agencies and made direct payments to Mr Neary, from which a team of daytime support carers are employed for 5 or 6 days of the week. Some of these carers have worked with Steven for years and, like his parents, are skilled at spotting signs of anxiety and heading off problems.
- Hillingdon works with some 1300 adults with disabilities. Anyone who believes that the work is simple and the right decisions always obvious is mistaken. Giving high-quality support to people with such complex needs is a subtle and demanding task. In the vast majority of cases, it is carried out without fuss, fanfare or public congratulation, but that can be forgotten when attention understandably turns to cases where things have gone wrong.
- In this judgment, I am necessarily critical of decisions taken by Hillingdon in relation to Steven during the year 2010. But even during that year Steven received committed care, and Mr Neary would be the first to say that some tremendous results were achieved during what was otherwise an unhappy time for all.
- A fair-minded observer will therefore want to view my conclusions about recent events against that general background. Steven will need social work support throughout his life and Mr Neary and Hillingdon will need to work together. Taking recent mistakes out of that context would be unfair, and unhelpful to Steven and his family.
- The hearing has taken place in the presence of the media. A small number of reporters sat in court for some or all of the five-day hearing, and their presence had no effect on the course of the proceedings. With minor exceptions, they can report what took place during the hearing, and I am confident that they will do it in a fair and balanced way. This will, I suggest, involve the media ignoring an unfortunate media briefing note, about which I say more later, that was issued by Hillingdon on the eve of the hearing.
- Where the media attends a hearing in the Court of Protection, the information it can publish can be restricted by the court in the interests of the individual at the centre of the proceedings. At the end of the hearing, the parties proposed that a very few matters should not be reported. After discussion, the media agreed, and I made an order accordingly. The two particular matters that will not feature in reports of the hearing are (1) details of a small handful of individual incidents involving Steven, and (2) the names of individual social workers or care assistants or of specific social services facilities. The media is in my view right to accept these relatively minor restrictions. Detailed descriptions of individual incidents may be eye-catching, but they do not represent Steven's ordinary behaviour and it is not in his interests to focus on them unduly. Nor would it be right to name the individual social workers. The shortcomings in this case are not the result of individual decisions but of collective misdirection. Moreover, some of the social workers concerned will continue to play an important part in Steven's future support system and it is not in his interests for them to be singled out.
- As described in my earlier judgment in this case, which can be found on the Bailii website at [2011] EWHC 413 (COP), there are two aspects to these proceedings. The more important concerns Steven's welfare. Having lived at home throughout his life, he spent the period between January and December 2010 in the support unit managed by Hillingdon. At Christmas 2010, as a result of an order made by Mr Justice Mostyn, he returned home to his father and he has remained there ever since. Things have gone well and it is now agreed that Steven will remain at home with high levels of support. Detailed plans for the future are being finalised and I expect to be able to approve them at a short hearing in a few weeks' time, and thereby end the proceedings.
Summary of decision
- This hearing deals with the secondary aspect of the proceedings, which is to examine the events of 2010. One aspect of the work of this court is its jurisdiction to make declarations about the lawfulness of any act done in relation to a person without mental capacity, and in particular in relation to any deprivation of their liberty: see ss. 15 and 21A Mental Capacity Act 2005.
- In this case, the Official Solicitor, acting on behalf of Steven Neary, seeks a declaration that when Hillingdon kept Steven in the support unit between January and December 2010, it acted unlawfully by depriving him of his liberty and by failing to respect his right to family life, in breach of Articles 5 and 8 of the European Convention on Human Rights. That application is supported by Mr Mark Neary, but opposed by Hillingdon. Written submissions on the legal issues have been received from the Equality and Human Rights Commission.
- During the hearing, the court heard evidence from a service manager, a team leader, the support unit manager, two carers, a Consultant Psychiatrist in Behavioural Disorders (Dr Dene Robertson), and from Mr Mark Neary himself. Steven's social worker did not give evidence, and a senior manager who was due to give evidence did not do so either; in each case this was due to illness. The social worker's records were carefully compiled, and the actions taken and the thought processes behind them are clearly recorded. It has not been suggested that the absence of these witnesses placed Hillingdon at a disadvantage.
- Having read those records and heard the evidence of the social workers, I am satisfied that everybody concerned has genuinely wanted to do the right thing by Steven at all times, and that a lot of hard work has been done to achieve this. The problems arose from misjudgement, not from lack of commitment.
- The court heard expert submissions from Mr Harrop-Griffiths for Hillingdon and Ms Weereratne for Steven Neary. Mr Neary, although quite unable to afford legal representation for a hearing of this kind, was not eligible for legal aid. Fortunately, his position was well represented by the arguments of the Official Solicitor on Steven's behalf.
- I want to thank Mr Neary for the quiet way in which he has presented his case. Several times, both during his evidence and when acting as advocate, he had the opportunity to vent grievances or launch an attack on Hillingdon in the presence of the media, but he did not do so. I am sure that this is because his focus has been on Steven from beginning to end. Mr Mark Neary is an unusual man and he can be proud of the way in which he has stood up for his son's interests.
- The environment in which local authorities operate in the field of adult care is not legally coherent and bristles with intricate regulation. An overview of the landscape is to be found the judgment of Munby LJ in Re A and C (Equality and Human Rights Commission Intervening) [2010] EWHC 978 (Fam) at paragraphs 63-69.
- Nonetheless, two central principles are clear.
- The first is that it is undoubtedly lawful for actions to be taken by families and local authorities, acting together on the basis of a careful assessment of the best interests of incapacitated persons. The vast majority of arrangements are made in this way and involve no breach of the rights of the persons concerned. Where there is a deprivation of liberty (referred to as a "DOL") a specific statutory code exists to provide safeguards.
- The second central principle concerns cases of disagreement. The ordinary powers of a local authority are limited to investigating, providing support services, and where appropriate referring the matter to the court. If a local authority seeks to regulate, control, compel, restrain, confine or coerce it must, except in an emergency, point to specific statutory authority for what it is doing or else obtain the appropriate sanction of the court: again see Re A and C (above) and the authorities referred to therein.
- The origin of this basic legal principle is to be found in an era long before the invention of local authorities as we know them. Chapter 29 of Magna Carta 1297 provides that:
"No freeman shall be taken or imprisoned, or disseised of his freehold, or liberties, or free customs, or outlawed, or exiled, or any otherwise destroyed; nor will we not pass upon him, nor condemn him, but by lawful judgment of his peers, or by the law of the land."
- As the Court of Appeal has recently said, this right to freedom is a fundamental constitutional right: TTM v Hackney LBC [2011] EWCA Civ 4. It will certainly not lose its importance in the field of adult social care, with an ageing population increasing the responsibilities of families and the State. Decisions about incapacitated people must always be determined by their best interests, but the starting point is their right to respect for their family life where it exists. The burden is always on the State to show that an incapacitated person's welfare cannot be sustained by living with and being looked after by his or her family, with or without outside support.
- In this case, Hillingdon argues that it had the right to keep Steven in the support unit, and that it was in his best interests that it did so. In relation to the period from January to April 2010, it claims that it had the consent of Mr Neary, and that anyhow Steven was not deprived of liberty at that time. In relation to the period from April to December 2010, it claims that a series of DOL authorisations that it (as a supervisory body) granted to itself (as a managing authority) clothed it with legal entitlement.
- For the reasons set out later on, I do not accept Hillingdon's arguments. I find that Steven was deprived of liberty throughout the year. I reject its case that Mr Neary consented. The authorisations relied upon were flawed, and even if they had been valid, they would not in themselves have amounted to lawful authority for keeping Steven at the support unit.
- It follows that Hillingdon had no lawful basis for keeping Steven away from his home between 5 January 2010 and 23 December 2010. The fact that it believed that it was acting for the best during that year is neither here nor there. It acted as if it had the right to make decisions about Steven, and by a combination of turning a deaf ear and force majeure, it tried to wear down Mr Neary's resistance, stretching its relationship with him almost to breaking point. It relied upon him coming to see things its way, even though, as events have proved, he was right and it was wrong. In the meantime, it failed to activate the statutory safeguards that exist to prevent situations like this arising.
- Fortunately, the evidence establishes that Steven has suffered no significant or long-term harm as a result of these events, although they were distressing for him and for his father. However, things might easily have turned out differently. By the summer of 2010, Hillingdon's plan was to send Steven to a long-term placement somewhere outside London, which could have caused irretrievable damage to his family ties, and particularly his very close relationship with his father. In the case of at least one of the facilities, it was a precondition that Steven was placed under a compulsory Mental Health Act section. It is very troubling to reflect that this approach might actually have succeeded, with a lesser parent than Mr Neary giving up in the face of such official determination. Had that happened, Steven would have faced a life in public care that he did not want and does not need.
- These conclusions could be reached by applying long-standing common law principles. Nowadays, the analysis proceeds on human rights lines, but the effect is the same.
- Article 8 of the European Convention on Human Rights provides:
Right to respect for 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.
- Article 5 ECHR relevantly provides:
Right to liberty and security
(1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
...
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
...
(4) Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
- I declare that Hillingdon has breached the rights of Steven Neary in the following respects:
(1) By keeping Steven Neary away from his home between 5 January 2010 and 23 December 2010, Hillingdon unlawfully breached his right to respect for his family life, contrary to Article 8 ECHR.
(2) By keeping Steven Neary at the support unit between 5 January 2010 and 14 April 2010, Hillingdon unlawfully deprived him of his liberty, contrary to Article 5(1) ECHR.
(3) By keeping Steven Neary at the support unit between 15 April 2010 and 23 December 2010, and notwithstanding the urgent DOL authorisation granted by Hillingdon as managing authority and the three standard DOL authorisations granted by Hillingdon as supervisory body, Hillingdon unlawfully deprived him of his liberty, contrary to Article 5 (1) ECHR.
(4) By failing to
(i) refer the matter to the Court of Protection sooner than 28 October 2010, and/or
(ii) appoint an Independent Mental Capacity Advocate for Steven sooner than 29 October 2010, and/or
(iii) conduct an effective review of the DOL best interests assessments under Part 8 of Schedule A1 of the Mental Capacity Act 2005,
Hillingdon deprived Steven Neary of his entitlement to take proceedings for a speedy decision by a court on the lawfulness of his detention, contrary to Article 5 (4) ECHR.
- This case gives rise to practice issues for those working in the field. For the present, I will mention three:
(1) The purpose of DOL authorisations and of the Court of Protection
Significant welfare issues that cannot be resolved by discussion should be placed before the Court of Protection, where decisions can be taken as a matter of urgency where necessary. The DOL scheme is an important safeguard against arbitrary detention. Where stringent conditions are met, it allows a managing authority to deprive a person of liberty at a particular place. It is not to be used by a local authority as a means of getting its own way on the question of whether it is in the person's best interests to be in the place at all. Using the DOL regime in that way turns the spirit of the Mental Capacity Act 2005 on its head, with a code designed to protect the liberty of vulnerable people being used instead as an instrument of confinement. In this case, far from being a safeguard, the way in which the DOL process was used masked the real deprivation of liberty, which was the refusal to allow Steven to go home.
(2)Decision-making
Poor decision-making processes often lead to bad decisions. Where a local authority wears a number of hats, it should be clear about who is responsible for its direction. Here, one sub-department of Hillingdon's adult social services provides social work support and another is responsible for running facilities such as the support unit. At the same time, senior social workers represent the supervisory body that determines whether or not a DOL authorisation should be granted. In that situation, welfare planning should be directed by the team to which the allocated social worker belongs, although there will of course be the closest liaison with those who run the support facilities. The tail of service provision, however expert and specialised, should not wag the dog of welfare planning. Unfortunately, this case was characterised either by an absence of decision-making or by a disorganised situation where nobody was truly in charge and it was consequently possible for nobody to take responsibility. At various stages during the hearing, I asked Hillingdon witnesses to explain who was answerable for various actions, but no-one could say. Even when its position came under strong and public challenge towards the end of the year, and when at least one very senior social work manager had serious concerns about what was happening, this had no effect on the corporate position.
(3)The responsibilities of the supervisory body
The granting of DOL standard authorisations is a matter for the local authority in its role as a supervisory body. The responsibilities of a supervisory body, correctly understood, require it to scrutinise the assessment it receives with independence and a degree of care that is appropriate to the seriousness of the decision and to the circumstances of the individual case that are or should be known to it. Where, as here, a supervisory body grants authorisations on the basis of perfunctory scrutiny of superficial best interests assessments, it cannot expect the authorisations to be legally valid.
The history
Earlier events
- Steven showed developmental delay at an early age and was diagnosed as having learning disabilities and special educational needs. An additional diagnosis of autistic spectrum disorder was later made. He left school in November 2007 at the age of 17 in difficult circumstances and Hillingdon provided him with community-based support funded by the local authority and by direct payments to the family. This broadly amounted to 80 hours per week plus community transport for his activities.
- Between January and May 2008, Steven was placed in the support unit. This is a 4-bedroom semi-detached house with a large garden in a quiet side street off a main road. The unit is run by specially trained staff whose task is to assess and understand difficult and challenging behaviour and help develop strategies for the benefit of residents and their carers by using an approach known as functional analysis. This means methodically recording particular types of behaviour and counting increases and decreases in its frequency in the light of behaviour modification strategies. Steven's stay in 2008 was described by his father as a positive experience, and he was generally happy there, although he twice walked out of the unit and went back home. Relations between the family and the unit were reasonably good.
- Throughout recent times there have been incidents where Steven has hit his father, or carers, or, on a very few occasions, members of the public. These incidents, and in particular any involving members of the public, have rightly caused great concern to the family and to Hillingdon. In each case, they have followed a lapse in the normal level of supervision. At Hillingdon's suggestion, Mr Neary and the carers kept a detailed log of any incidents. However, as time went on, social workers became concerned that Mr Neary was underreporting incidents, because he was afraid that Steven would be taken away from him if he seemed not to be coping. I accept that Mr Neary had this fear, but I do not find that he or the care staff underreported incidents. No example of underreporting has been given, still less proved.
- In August 2009, following the separation of his parents, Steven moved with his father to their flat, which Steven calls "the Uxbridge house".
- Another justifiable concern was Steven's weight. This rose sharply during 2009, to the point where he had become dangerously overweight. It is clear that he was being allowed to eat too much, with food being used as a reward for good behaviour. Mr Neary accepts that he was not strict enough, and perhaps the best result of the year at the support unit is that Steven has lost five stone in weight. Since his return home, his weight has remained stable, though he remains overweight.
- Because of Steven's difficulty in handling change, Christmas is a difficult time. The places where he does his activities are closed. The television schedules all change and his favourite programmes are sometimes taken off. In 2009, the exceptional weather prevented him from going out for several days. Mr Neary and the two main carers describe Steven as being in a bad mood. On 14 December 2009, after the first carer left for the evening, Mr Neary found that he could not cope with getting Steven to bed and he called the manager of the carer's agency in distress, and asked for help. The carer returned, and the situation was dealt with. At that point, Mr Neary describes asking for increased support and feeling that he was battening down the hatches for Christmas.
- On 15 December 2009, the day after the telephone call to the agency, its manager sent a somewhat dramatic e-mail to Steven's social worker. It described Steven as "terrorising" his father and referred to two recent incidents. The manager was depending on her contacts with the carers and Mr Neary for her information. They both recognise the incidents mentioned in the e-mail, and accepted that Steven's behaviour at the time was difficult. However, they did not accept that matters were as bad as described, and the second carer, who worked directly for Mr Neary and had known Steven since 2005, also confirmed this.
- On 16 December, Steven's social worker spoke to Mr Neary and recorded that he was asking for help. At all events, Steven spent Christmas at home.
- On 29 December, as a follow-up from the previous discussions, the support unit manager, visited the home. He and Mr Neary knew each other from 2008 and they discussed alternative activities for Steven over the period when his normal venues were closed.
January to April 2010
- By Wednesday 30 December, Mr Neary was unwell and felt exhausted. Steven was due to go for his normal one night period of respite care on the following Monday, 4 January 2010, and Mr Neary contacted the social worker and asked whether he could be admitted early and stay until then. A bed was available for one night, and Steven went to the respite placement on 30 December. Mr Neary now says that he regrets the way in which Steven had left home without any preparation.
- Steven could not stay at the respite placement for more than a night, and on 31 December, Mr Neary and the social worker met. They agreed that Steven would go to the support unit for a period of "a couple of weeks" until Mr Neary was restored. It is therefore common ground that when Steven went to the support unit on 31 December, it was on the basis that he would stay there for a short period before returning home. This was an entirely appropriate measure at a time when Mr Neary was temporarily at a low ebb.
- However, soon after Steven arrived at the support unit, the staff found his behaviour very challenging, particularly around food issues. Given the unexpected move, it is not surprising that Steven did not react well.
- By 4 January 2010, there were the first signs of the seeds of later difficulties. A professionals meeting took place between the social worker and staff at the unit and the care workers' manager. A letter from the social worker to the manager refers to a longer stay so that the support unit could get a better understanding of Steven's needs, with a review on 15 January. For some reason, the social worker asked for this plan to be kept confidential. On the same day, the social worker spoke to Mr Neary and outlined plans for a longer stay for Steven than had originally been contemplated.
- It seems that Mr Neary must have spoken to Mrs Neary after this because, also on the same day, she wrote to the social worker querying the arrangements and referring to the fact that Mr Neary "seems to think he has a bit of a fight on". To this, the social worker replied on 5 January that "we will be discussing with Mark the possibility of increased respite before Steven goes home" and that "there is no "fight" in any shape or form and never has been".
- However, on the same day, 5 January, Mr Neary sent an e-mail to the social worker entitled "Steven's Respite" which included this: "When we met on 31st December, I agreed to Steven staying at [the support unit] for "a couple of weeks" in order for me to recharge my batteries. There is absolutely no way I would have agreed to Steven staying there for an indefinite longer period. It was quite a shock to hear the agenda could be so changed in just four days. The issues that you say you wish to work on at [the support unit] are areas that need to be worked on in Steven's normal environment. ... So, I wish to restate my position from last Thursday (sc.31 December). The break has been extremely useful and I would expect Steven to return home towards the end of next week."
- On 6 January, a home meeting took place between Mr Neary, the social worker and the unit manager. At that meeting, the professionals proposed a longer stay so that the staff could continue the assessment. Mr Neary said he would think about it and come back with a decision. At the request of the support unit, Mr Neary was not visiting Steven, and did not do so until 16 January. He wanted to speak to the carers, who saw Steven daily, before making a decision.
- Mr Neary says that during the meeting on 6 January, the social worker said that if Steven did not remain at the support unit, Hillingdon would have to "review" his home support package and that Mr Neary would have to "put a strong case" for Steven's return. The unit manager agrees that the home support package was mentioned, but he did not regard it as being said in a threatening way. However, Mr Neary understandably felt pressured by this reference to Steven's support package, without which there could be no return home.
- Mr Neary's response is contained in an e-mail sent that evening entitled "The BIG Decision" and reading "Okay folks - how are about this proposal: We go to Steven's appointment with [Steven's treating psychiatrist] on 17th to discuss the medication and get any input from him that is needed. We then meet on 18th to discuss progress and finalise plans for return home, giving ourselves two more days to do anything extra that needs to be done. Steven comes home on Saturday 21st."
- Mr Neary received no direct reply to this proposal, which conflicted with Hillingdon's emerging plans. However, a meeting involving Mr Neary, the social worker, the unit manager and the care manager took place on 14 January. The social worker records that at that meeting Mr Neary agreed to Steven staying at the support unit "for a longer period of time than first agreed". Mr Neary describes the professionals speaking about the work they could do as part of a long-term plan. He accepts that he agreed to a short extension of the original plan, but only for a few days, as suggested in his earlier e-mail. As he put it in evidence, he certainly was not expecting Steven to be there in February. Insofar as there is a discrepancy in the accounts, I accept the evidence of Mr Neary. It is consistent with his previous position and the other evidence, and it is noteworthy that Hillingdon were not at any stage suggesting any clear or structured period of assessment, or any timescale for it.
- This is borne out by a record of a professionals meeting held on 15 January, attended by the social worker, the unit manager, the carers' manager and three others. The purpose of the meeting is recorded as being "to get an update on where we are now and to set objectives to Steven's stay while at [the support unit]". It is noted that "A significant change has been the decision by Mr Neary to agree for Steven to stay at [the support unit] for a longer period of time than the original plan. If Mr Neary had insisted that Steven went home, then a Safeguarding Referral would have been implemented due to the continued concerns over Steven's general health (his weight)."
- It can be seen that Hillingdon had by now decided that it would not let Steven go home, but had not revealed this to Mr Neary. Its approach was rather to manage his opposition. It is clear that Mr Neary never agreed to Steven remaining at the support unit for long-term assessment, but that is what happened.
- By this stage, Steven's behaviour was causing grave concern to professionals and to Mr Neary. The latter describes himself as quite overwhelmed by the number of issues arising daily, and feeling very emotional himself. He described in evidence how in the period between January and April he got caught up in lots of micro-events and lost sight of the bigger picture. He accepts that during these weeks he was not actively objecting to Steven being in the support unit, even though he had never agreed to it. By 25 January, a meeting was taking place between Mr Neary and the professionals which focused exclusively on practical day-to-day issues.
- I again accept this description of events. Regrettably, once Mr Neary's initial resistance to its plans weakened and fell away, Hillingdon appears to have taken a dim view of his concerns. In an e-mail dated 22 February from the social worker to the support unit, the following appears: "There is always going to be something or other that Mr Neary will bring up and more often than not we are having to appease his needs rather than Steven's, however I want Steven to remain at [the support unit]. I know that it seems that you as a team are constantly being questioned but this will be the case because Mr Neary wants to find issues with the care that other people give Steven. We just need to ensure like we have that we are working together for the best outcome for Steven."
- It is now accepted by Hillingdon that Mr Neary had done nothing to deserve this disrespect. The unfortunate tone of the message demonstrates that even at this stage the expression "working together" did not include working together with Steven's father in the true sense and that Hillingdon's thinking had by this stage become adversarial. Worse, the professional view was withheld from Mr Neary, perhaps because revealing it would have provoked a renewed challenge. In the meantime, a "transition plan", ostensibly leading towards a return home, was put into place. It started on 4 March, with four phases: (1) 4/6 weeks of return home on Monday afternoons, (2) 4/6 weeks of return home on Monday and Tuesday afternoons, (3) the above plus Saturday afternoons at home, (4) the above plus a couple of overnight stays before a final return home. It was not until 8 July, by which time the four phases had been successfully accomplished, that Hillingdon told Mr Neary that it was not willing to return Steven to his care.
- In the meantime, Steven's behaviour was bad for much of the time, and he repeatedly said that he wanted to go home. I accept that many of his statements have a repetitive quality, and that the fact that he says something does not necessarily reflect his true feelings at that very moment. I also accept that Steven had some good times at the support unit and that some of his unhappiness was due to his being trained to do things for his own benefit. However, the evidence as a whole leaves no doubt that throughout his time at the support unit he did not want to be there, but wanted to be at home with his father.
- By this stage, a feature of the functional analysis method used by the support unit became an issue. As explained, the method involves careful counting of noteworthy incidents. The number of incidents being logged by the support unit was extremely high, far higher than those that had been logged by Mr Neary at home. Functional analysis is a self-contained system designed to trace behaviour and elucidate the reasons for it. It is not intended to be used as a basis for comparison between two quite different environments. Unfortunately, this is what happened. Hillingdon began to refer to the high number of incidents as a reason why Steven could not be allowed to go home. In response, Mr Neary referred to the massive increase as a reason why Steven should not stay. This led Hillingdon to cast doubt on the validity of Mr Neary's own data. This was a sterile argument. There is no doubt that Steven's behaviour was more difficult at the support unit and, considering he did not want to be there and was being challenged about his behaviour, that is hardly surprising.
- On 10 March, a worker at the support unit filled in a standard questionnaire circulated by Hillingdon in order to establish whether Steven and the other residents at the unit were being deprived of their liberty. The questionnaire raises 11 relevant questions, all which were answered in the negative. This included the reply to the question "Have relatives or carers asked for the Service User to be discharged from the care service to their care, and been refused?" It is true that by this date, Mr Neary was acquiescent, the transition plan having started, but his earlier request had nonetheless been refused.
- On 9 April, Mr Neary wrote to the Head of Adult Social Care at Hillingdon, challenging information that he had been given at a meeting with the social worker the day before. Because Steven had been at the support unit for so long, Hillingdon were now classifying him as "resident" there. This would bring with it the withdrawal of direct payments to Mr Neary, with the result that he would not be able to fund Steven's home support package. It would also entitle Hillingdon to claim money from Steven's benefits towards the costs of his being at the support unit.
- On 11 April, an incident took place at the support unit that led to Hillingdon invoking the procedures under the Mental Capacity Act 2005 to authorise a deprivation of Steven's liberty. While staff were preparing a birthday party for another resident, Steven wandered out of the garden, through the gate, and onto the road outside. He snatched the glasses off a passer-by and threw them into the road, causing no injuries but breaking the glasses. He then headed for the junction with the main road, before being brought back by staff. Following this incident, staff were reminded to double lock the front gate. A keypad and alarm were fitted to the front door of the house and a member of staff was allocated to be with Steven at all times indoors. Steven's activities outside the support unit were suspended pending risk assessments of all his venues.
- Mr Neary was understandably concerned that Steven had been allowed to wander out of the unit, and complained about this. He was also dismayed at the suspension of activities.
- On 13 April, the team manager responsible for support services, including the support unit, wrote to the social worker expressing concern that despite 2:1 levels of staffing and other controls there had been a number of incidents that could have had severe consequences. He wrote that all professionals at the support unit had real concern about plans for Steven to return home due to his behaviour and the family's ability to continue behavioural programmes.
15 April 2010 onwards
- On 15 April, the unit manager, acting as the managing authority, signed an urgent authorisation allowing Hillingdon to deprive Steven of his liberty at the support unit for a period of seven days. At the same time, a request for a standard authorisation was submitted to the service manager who performs the responsibilities of the supervisory body. Mr Neary was informed on the same day.
- On 16 April, a professionals meeting was held. Nine social workers attended, including all those mentioned above and the team manager. In a report for the meeting, the social worker summarised the concerns that were felt. These did not just include the risk to Steven and others from further incidents but also the issue of "Steven going home" and "Mr Neary taking Steven out of [the support unit. (If we as a borough have nothing in place to prevent this happening.)" At the meeting itself, the social worker asked "what should we do when dad decides to take Steven back home?" The team manager raised the concern that Steven could end up in a secure environment and expressed the opinion that it was not in his best interests for him to be returned home. The meeting agreed as a medium/long-term strategy that (1) Steven should remain at the support unit, (2) he could not go home to either parent, (3) Hillingdon should look at residential resources. The meeting noted that Mr Neary had not been told this, and agreed that he should not be told while Hillingdon took legal advice. The team manager suggested, and the meeting agreed, that they needed to gather information in case they needed it for court proceedings.
- At the request of the team manager, this meeting was chaired by the team manager responsible for the support services team. This was in my view unhelpful, not because of anything that the chair did or did not do, but because it confused the question of where leadership within the local authority properly lay.
- Hillingdon was undoubtedly prompted to pursue the DOL route by the incident on 11 April, but unfortunately, as the discussion at the meeting on 16 April shows, that issue became intertwined with its concern about Steven returning home.
- On the evening of 16 April, Mr Neary sent an e-mail to the unit manager, asking how he could appeal against the DOL authorisation. He then began a dialogue with the social worker about this, which was a learning experience for them both, as neither had any experience of the procedures. Mr Neary explained in evidence that he wanted to object to the withdrawal of Steven's activities. He did not appreciate that the authorisation specifically named the support unit, and could be used to anchor Steven to it.
- On 18 April, Mr Neary wrote to his Member of Parliament inviting his intervention. He referred to encountering "institutionalised defensive practice" and complained of feeling being "backed into a corner".
- Steven's holidays in previous years with his father and care workers had occurred without difficulty. In February, Mr Neary had told Hillingdon about his plans for a holiday with Steven in the West Country for 2010. On 20 April, he wrote to the social worker giving the dates as 5 to 9 July.
- Having received the DOL request from the support unit, the service manager responsible for DOL procedures commissioned the necessary assessments. On 19 April, the Best Interests Assessor (BIA1) spoke to Mr Neary about the request for a standard authorisation.
- On 21 April, BIA1 prepared a report recommending a two-month DOL authorisation. It records Mr Neary as having expressed concerns about the appropriateness of the current placement and his own "susceptibility to being "coerced" into expressing opinions which may not necessarily be consistent with his wishes." The assessment also suggested involving an Independent Mental Capacity Advocate (IMCA). The report recommended that four conditions be attached to the authorisation, among them: "(1) Consideration to be given to the most appropriate place in which to provide ongoing care to meet [Steven's] needs, (2) Consideration be given to referral to IMCA services to act as an independent advocate for [Steven]."
- All parties accept BIA1's conclusion that Steven was correctly assessed as being deprived of his liberty in the support unit at this point. But that is not the end of the matter. The standard form used for the report specifically states: "You must consider whether any care or treatment the person needs can be provided effectively in a way that is less restrictive of their rights and freedom of action." and makes reference to paragraph 4.61 of the DOL safeguards Code of Practice, which refers to the question of "what other care options there are which could avoid a deprivation of liberty". It would not be right to be unduly critical of her report, particularly as it was the first DOL best interests assessment she had undertaken. She flagged up what became known during the hearing as "the elephant in the room", which was whether Steven should be at the support unit at all. However, she did not follow up on this. She does not refer to the alternative of a return home as being an obviously less restrictive alternative. Nor does she refer to Steven's unhappiness at being in the support unit. Nor did she propose an application to court as a condition of the authorisation.
- On the same day, 21 April, this assessment, together with a number of other more formal assessments, were checked by the service manager on behalf of the supervisory body, who carried the best interests assessment forward into the authorisation document practically verbatim, along with the proposed conditions. The first standard authorisation was signed that day by the Director of Adult Social Care.
- As to the conditions, the first (consideration to be given to the most appropriate place to provide care) hardly placed any onus on Hillingdon to revisit its decision not to return Steven. As to the second, the social worker immediately referred the case to the agency that provides IMCAs, but was told that Steven did not qualify. The matter rested there for about six months.
- Again on 21 April, the social worker wrote to Steven's psychiatrist, seeking advice. The letter said "my overall concern is that Mr Neary wants Steven home. I have spoken to the other professionals involved in Steven's support and the general views are that Steven would be better supported in an environment that could offer him clear boundaries, structured approach, as well as staff that could manage the behaviours that Steven presents." The team manager wrote to the psychiatrist on 26 April in the same vein, saying: "Mr Neary snr is challenging most aspects of what is taking place; it is increasingly likely that this will end up in the Court of Protection as we have major concerns about the idea of Steven returning home to Dad's to live. It is much more likely that we will be looking for a long-term placement for Steven as we feel that this would be in his best interests." These letters hardly provided a neutral summary of events as a basis for professional advice.
- On 22 April, Mr Neary wrote a long e-mail to the social worker. He described the DOL "order" as "completely unjust considering the circumstances that led to the order being served", and by this he meant that it arose from the inattention of staff at the support unit in letting Steven out. He urged Hillingdon not to stop Steven's activities.
- Earlier that day, the team manager's own service manager had sent a small group e-mail entitled "Changes to Steven's Care Package". This related to the direct payments issue, but included the following: "the other issue we need to consider is that we may choose to keep Steven in [the support unit] as a safeguarding solution which may be against Mr Neary's will – this may also affect the decision. This information is presently very confidential please do not discuss with anybody until informed differently. At present we have a Members Enquiry and a Complaint running for this man and it is important to coordinate responses, as we investigate the complaint these decisions will be made as part of the response so please do not feel [driven] to give Mr Neary any decisions at the moment just let him know it is being addressed as part of his complaints and there will be responses coming from [the service manager] on the provider issues and [another service manager] or myself on the care management issues."
- The social worker sent an immediate e-mail to a psychologist who had been asked to assess Steven, marked "confidential" and emphasising "Mr Neary is unaware that we may need to keep Steven at [the support unit] or a place similar and he's not to be informed of this possibility." The psychologist duly reported that Steven lacks capacity to decide things for himself.
- On the very same day, 22 April, the social worker spoke to Mr Neary and sent him a letter. The letter contains no clue to the local authority's true thinking, but instead refers to a meeting "to talk about the transition plan for Steven". It refers to having asked the psychologist to report on whether Steven had the capacity to make decisions about where he wants to live "(i.e. to return home or move to alternative accommodation)".
- As a result of the DOL authorisation, Mr Neary had become Steven's Relevant Person's Representative (RPR). Also on 22 April, he was sent a copy of the Department of Health booklet "Deprivation of Liberty Safeguards – a guide for relevant person's representatives". This explains that authorisations could be challenged in the Court of Protection by unpaid RPRs, who would be entitled to an IMCA when doing so.
- Unaware that Hillingdon's policy was to keep him in the dark, Mr Neary persisted, though unfortunately not by means of an immediate court application. On 24 April, he wrote to the service manager as Steven's RPR to challenge the DOL authorisation. He said that he understood that the protocol was to write to the service manager before contacting the Court of Protection. He complained that Steven had not had an opportunity to be represented, about the evidence on which the authorisation was based, and about the use that would be made of it. He requested an immediate review of the conditions of the authorisation so that Steven would be able to resume his activities.
- The service manager replied on 26 April, agreeing that "the Court of Protection is the correct place for this matter to be resolved." He suggested that Mr Neary might wish to take independent advice and agreed to set up an early meeting to review the evidence. In the event of major differences which appeared to have no resolution, he said that Mr Neary might wish to refer the matter to the Court of Protection. On receiving this reply, Mr Neary immediately asked the social worker to arrange the meeting and said "I also wish to discuss steps to arrange for Steven to return home at the earliest possible time." This message was copied to the other social workers concerned. Having received it, the social worker wrote to colleagues: "a meeting does need to take place and further discussions need to be considered about what is best for Steven in terms of where he should live which will all come down to a decision being made by the Courts, which is where I believe that this case is heading."
- Twice in April, the social worker contacted Hillingdon's legal department for advice, describing the case as one that was moving very quickly and where legal representation would be needed at some point.
- On 26 April, Mr Neary wrote to the unit manager about the restrictions on Steven's activities "whilst he is detained on the premises" and added the delicate "obviously, I'm not going to give up my fight to have the order overturned, or interpreted so rigidly."
- On 27 April, the social worker wrote to the team manager saying that there were a number of live areas, and "some sit uncomfortably for me." Home visits "are taking place and Mr Neary is still of the opinion that Steven is going home, I'm aware that even though as professionals we have voiced our concerns amongst each other, we have not spoken to Mr Neary about this directly. I understand that the decision on where Steven should live is not down to us, however by not informing Mr Neary with our concerns is like saying that we are "ok" on Steven going back."
- On 28 April, Mr Neary wrote to Hillingdon's finance department enclosing a financial assessment that it required in relation to the direct payments issue. When doing so he said: "I ... want to put on record that as Steven is currently being held against his will at [the support unit] and without my consent as his father, I am challenging the need for the assessment or the expectation that Steven has to pay anything towards the costs."
- On 30 April, the DOL review meeting called by the service manager took place. It was attended by nine social workers, including all mentioned above and BIA1. Mr Neary attended with a supporter. He challenged the reasons for the order and the restrictions on Steven. Nothing whatever was achieved. The unit manager's manager is recorded as saying "we are acting legally on everyone's behalf".
- The service manager in his evidence said that he regarded this meeting as Hillingdon's review of the DOL authorisation. It is disappointing that the meeting did not reach the obvious decision that an urgent application should be made to the court. There is no hindsight needed – it can be seen from the various messages in the preceding week that everybody was by now aware that this was the proper course.
- There then followed detailed correspondence about the precise restrictions on Steven's movements. Hillingdon were also consulting internally about the acceptability of Steven going on holiday while he was subject to a DOL authorisation, on the assumption that it was going to be renewed.
- On 26 May Mr Neary and the social worker met to discuss matters, including the home visits which seemed to be going well. On the following day, the social worker wrote about matters that had been discussed. One section in the middle of this long letter contained the first clue to Mr Neary of Hillingdon's thinking. The social worker wrote: "We talked quite openly about Steven coming home and I expressed my thoughts and concerns about this. It will be helpful that as a group of people who are working with you and Steven that we sit down and have a discussion about Steven's future. It may be that we have the best interest meeting as Steven lacks capacity to make a decision in relation to his future; I will explore this further and come back to you. In the meantime I have asked you to consider alternative placements and options for Steven and perhaps it would help if you had a few examples that you have visited to enable you to see what else could be available. I know that if Steven did not come back and live with you then you would like him to live in Hillingdon. I have asked you to consider alternative placements for Steven." The letter ended: "Please let me know if you would like me to arrange for you to look round alternative placements. I want to stress at this point that no decision has been made about Steven not coming back to you; this is to give you an opportunity as I have previously stated to consider alternatives."
- It would seem that the social worker's discomfort was alleviated by giving Mr Neary a glimpse, but not a full view, of Hillingdon's thinking. Unfortunately, the letter reverts to the misconception that the decision lay in the hands of the local authority. It received a detailed and courteous response from Mr Neary on 27 May. On the above issue, he wrote: "I'm quite open to visiting other options for Steven's future living arrangements, although I maintain my position that his home is the best environment for him. That is saying nothing negative about alternative accommodation but from my deeply held belief that living in his home is in Steven's best interests."
- A further professionals meeting was held on 3 June, on the morning of a meeting with Mr Neary in the afternoon. Writing to colleagues ahead of the morning meeting, the social worker said "I think during the meeting we can also prepare ourselves for the meeting with Mr Neary in the afternoon. I do feel that we need to be honest with him in terms of our view of Steven returning home…" At the professionals meeting it was recorded that home visits had on the whole been positive and that Steven had had a good time. There is no record in the minutes of any discussion of the central issue, nor is there a record of the afternoon meeting. If it took place, Mr Neary was not told Hillingdon's view of things.
- On 21 June, the second DOL standard authorisation was granted. A different best interests assessor (BIA2) consulted Mr Neary. He describes her telephoning him at lunchtime for 10 minutes, saying that she had to file her report by 3 p.m. He says that to every point he raised she replied "but Hillingdon say this ..." He did not consider that she was carrying out a proper or independent assessment and lodged a complaint about her.
- I have not heard evidence from BIA2, but I have read her assessment. She recommends a three month period for deprivation of liberty. Substantial parts of her short report are cut and pasted from the previous best interests report. She appears to have had cursory contact with Steven on 21 June, the date her report was filed (even though it is unaccountably signed on 18 June). No reference is made to his wishes and feelings. No reference is made to Mr Neary's opposition to the placement. On the contrary, the following appears: "I understand from my conversation with Mr M Neary that he believes the current care plan is positively supporting his son and his transitional programme." No reference is made to the possibility of a placement at home alleviating the need for a deprivation of liberty. The recommendation is made for two conditions to be attached, one of which suggests that the three outstanding risk assessments for Steven's activities should be completed within eight weeks (in the context of a three-month deprivation recommendation). No reference is made to the absence of an IMCA, despite the condition in the previous standard authorisation, nor to the Court of Protection, despite the references in the previous assessment. I regret to say that the report has all the hallmarks of a document completed in a hurry.
- On the same day, when drafting reasons why the standard authorisation was in Steven's best interests, proportionate and necessary, the service manager wrote: "Evidence exists of the managing authority's efforts to evaluate and manage the risks involved in the least restrictive way. The management strategy arrived at his proportionate and, at this time, represents the best approach to preventing harm." Again, the standard authorisation gives no clue to the real issue in this situation, even though it was well known to senior management by this time, and it was signed off by the Director on that day.
- Two days later, on 23 June, and after much consultation had taken place in the previous weeks between the social worker, the team leader and the service manager, the unit manager wrote to Mr Neary saying that Hillingdon could not support Steven's holiday on 5 July. The reason given was because the support unit had responsibility under the DOL "order" to assess Steven's access to the community, and because "Whilst we are in the process of transition with Steven to the family home, I feel we will be placing Steven and others at risk ..." Mr Neary was understandably downcast at the lateness of this decision, which he felt would disappoint Steven, who had been looking forward to the holiday. Workers at the support unit did not feel that this was so. Nevertheless, one of the problems for Hillingdon by this stage was that Steven was becoming excited by his visits home, in accordance with the transition plan. At this stage, Hillingdon's position remained unchanged, as reflected in a message from the service manager to colleagues with reference to the holiday and generally: "In the final analysis, Mr N can take the whole matter to the C of P if he feels a DOL should not be in place."
- On 25 June, Mr Neary wrote a detailed e-mail to the service manager, copied to all other professionals, protesting about the extension of the DOL authorisation and the late cancellation of the holiday. He wrote: "It feels like deja-vu because like before, I'm not challenging the existence of the order but the managing authority's use and interpretation of the order. ... I want to use this challenge to prevent further abuses of the order in future. For example, one concern I have is that the order will be used to stop or delay Steven's permanent return home. I asked the best interests assessor if that was the case and she replied that it wasn't but as there is nothing explicit in the order to that end, I remain nervous about the future interpretation re returning home." At around the same time, Mr Neary wrote a detailed letter to the Director, raising his concerns.
- In early July, Steven had two successful overnight stays with his father as part of the transition plan.
- On 7 July, the social worker wrote to the team manager setting out some thoughts ahead of a meeting later that day. The message analysed the position from Hillingdon's point of view and noted some general concerns about Steven's return home. These include: "Currently feel that we are giving mixed messages to Mr Neary about Steven going home ... Legal has said that we have enough for Court of Protection if this is the direction that we are going in, this is the direction we are going in" (sic).
- The result of the meeting on 7 July was a clear decision that Steven would not be returning home. The meeting was not minuted, despite being the most important of all the many meetings in this case, but its decision is contained in a letter to Mr Neary from the team manager on 8 July: "The meeting made decisions that have immediate consequences and we need to ensure that you are aware of them. We decided that we can not support the long-term plan of Steven returning home to live with you on a permanent basis. We acknowledge that we have commenced this process but feel that we should let you know now that we are extremely uncomfortable with this plan and as the local authority responsible for commissioning support we can not knowingly continue to support a plan that we feel is too high a risk. Steven still presents high levels of risk to himself and others on a daily basis and our views are that this is likely to continue. As a consequence we are going to make changes in the current plan regarding Steven being in transition to your home. We want to be clear that we do not want to hinder contact between Steven and yourself ... We understand that this will cause you huge concern as you are dedicated to your son and his well-being and with this in mind we would like to hold a case conference and invite you to attend with someone to support you."
- This letter came as a shock to Mr Neary. In reply, he wrote to the team manager on 9 July with the formal proposal: "That Steven Neary be returned to his family home with immediate effect, with appropriate level of support provided. That a three-month assessment period is agreed, to monitor whether Steven's behaviour is manageable in said environment with sufficient support. There is now a considerable body of evidence to show that Steven Neary finds living in a multi-occupied residential unit far too difficult to manage and is only serving to increase substantially his anxiety and aggressive behaviours."
- On the same day, the team manager replied: "We would not at this stage consider increasing your son's package of support to enable him to return to your address. ... With regard to the decision about his return to the family home it is not my decision to take as under the Deprivation of Liberties order it is the responsibility of the "managing authority" to make such decisions; the "managing authority" is [the support unit]. I refer again to my letter of yesterday in which I stated that professionals and managers have met to discuss their concerns about the situation and would stress that as a Department we hold a consistent view regarding the matter. We hope that you will accept our invitation to a case conference regarding the future for Steven -- this invitation will be sent to you during next week."
- This letter was copied to all senior managers. It was written following advice from the service manager, who reiterated that Mr Neary would have to initiate court proceedings if the matter could not be resolved. He also advised that "looking ahead, it would be helpful to demonstrate that LBH have involved Mr N in whatever alternative plan for Steven's future comes out of your professionals meeting."
- I am afraid that the offer of a case conference was window dressing. I am also concerned that the service manager, who had responsibility for the DOL procedure, was unduly involved in the case planning (such as it was). In a message on the same day to the unit manager, he explicitly refers to needing to maintain a degree of separateness from day-to-day decisions and being seen to do so.
- Again on the same day, the unit manager wrote to Mr Neary confirming a conversation in which he had told him that overnight and unsupported visits to the family home could not take place.
- On 20 July, a case conference attended by Mr Neary and his supporter took place. Predictably, no progress was made, and Mr Neary's requests for Steven to come home or at least spend time there overnight were refused. The need to apply to court was considered, but no action was taken. Another meeting was fixed for 10 August.
- On 28 July, Mr Neary wrote, once again proposing Steven's return home for a three-month assessment period. His very long letter took issue with every aspect of Hillingdon's analysis, and in particular its use of data from the support unit to justify its stance.
- On 29 July, Mrs Neary wrote expressing concern at the thought that an out-of-borough placement was being considered for Steven.
- In July, an article about Steven had appeared in the Uxbridge Gazette. The matter was also taken up by Private Eye. A Facebook posting by Mr Neary attracted what was, to him, an unexpected amount of support.
- On 2 August, a professionals meeting was held. Surprisingly, in the light of his recognition of the need to maintain independence, the service manager attended. A clear decision was taken not to allow Mr Neary to demonstrate that he could look after Steven at home with support. It was recorded that "we need to demonstrate to CoP that we have tried to reach agreement with family ahead of making an approach to the court. We feel that we have tried to accommodate this but also feel that Mr Neary is clearly against any proposal for Steven to receive specialist support in residential care." The service manager accepted in evidence that the welfare factors that were discussed at this meeting were very one-sided.
- The case conference on 10 August consisted of a long discussion, the only outcome being a resolution that court proceedings would be instigated by Hillingdon. It was said that papers would be prepared within the week. There was a protest outside the Civic Centre during this meeting.
- On 16 August, the psychologist reported, highlighting the lack of independent advocacy for Steven or Mr Neary, and commenting that Steven's autistic spectrum disorder had received minimal attention at the support unit. It is deplorable, and a clear sign of the adversarial approach being taken by Hillingdon, that this report was deliberately withheld from Mr Neary for at least six weeks.
- On 20 August, Mr Neary wrote a letter to Hillingdon asking 12 questions about issues that he said would be relevant to the Court of Protection proceedings. These included the question of why overnight stays were stopped when they had been going well, and the question: "Why does the Authority believe that the advantages of moving Steven to a specialist unit will compensate for the loss of regular contact with his father, the safety and bond with his current support workers and the safety and engagement Steven has with the people and activities on his community programme?"
- On 31 August, Mr Neary wrote to the service manager, saying that he had taken advice and considered recent judicial decisions. In the light of those, he suggested that the best interests assessments were flawed and that the authorisations may have been unlawfully granted. In particular, he challenged Hillingdon's overall approach and attitude to working together with him. The service manager replied to this letter a month later, on 29 September.
- On 20 September, the third standard authorisation was granted by the Director for a period of two months. The authorisation makes no reference to Steven's wishes or those of his father, nor to the possibility that deprivation of liberty would not be involved if he was at home. The purpose of the standard authorisation is described as being for Steven to receive a structured programme to contain his behaviour. Conditions were attached requiring risk assessments of all venues before Steven could undertake activities outside the unit. Consideration was to be given to an appropriate long-term placement.
- The best interests assessment, by a third assessor, BIA3, refers to Mr Neary's disagreement with the placement and recommends recourse to the Court of Protection as a condition. BIA3 also noted that an IMCA had been requested.
- On 23 September, the social worker suggested a meeting with Mr Neary, who, while continuing to meet with support unit staff, declined a meeting. He said that Hillingdon's actions were the main source of the stress he was experiencing. He described feeling "frozen out".
- By this stage, Steven was becoming increasingly agitated at the support unit. His behaviour included kicking one of his carers. On 24 October he absconded through the front door, barefoot and in pyjamas, crying and asking to go back to his father's house.
- On 28 October, after Steven had been at the support unit for 10 months, Hillingdon finally issued proceedings in the Court of Protection. I asked the team manager why it had taken over two months since the decision on 10 August, and was told that Hillingdon's legal advice was that it should get its own case ready before issuing the application.
- The application issued by Hillingdon was extraordinarily wide ranging. It asked for the following orders:
• a declaration that Steven Neary lacks the mental capacity to decide where he should live and what contact he should have with his family.
• a declaration that it is lawful for Hillingdon Council to place Steven Neary in appropriate residential accommodation identified by the council and to
• A declaration that it is in the best interests of Steven for contact between Steven and his parents Mr and Mrs Neary to be supervised and at the discretion of Hillingdon Council.
• A declaration that it is lawful for Hillingdon Council to make arrangements for the supervision and restraint of Steven when he is in the community and this will include when Steven visits the homes of Mr or Mrs Neary.
• Permission to Hillingdon Council to commission experts to assess Steven regarding the identification of the triggers and assaulting others. (sic)
• A declaration that it is lawful for Hillingdon Council to make long-term welfare decisions regarding the future care and residence of Steven Neary.
• Orders regarding the disclosure of information and images relating to Steven and others particularly on social network sites.
- On 18 November, the IMCA delivered her report. It is an impressive document. For the first time, professional support was given to Mr Neary's arguments. The previous best interests assessments are subjected to analysis. The IMCA's conclusion is that Hillingdon was potentially not acting in Steven's best interests by refusing his father's request to have his son live with him at home. The fact that this is the most important relationship in Steven's life was noted. No evidence had been presented to show that the care he had given to Steven over the years was no longer appropriate. A return home, even as a trial period, should be considered. Further depriving Steven of his liberty might lead to emotional harm. Steven's wish to return home was rational and understandable and Mr Neary had demonstrated in a number of ways his willingness to work positively with professionals involved in providing care for his son.
- This report pointed the way towards a different outcome for Steven.
- Nevertheless, on 19 November, the fourth standard authorisation was issued, on this occasion for five months, for some reason. The best interests assessment was again prepared by BIA3. A condition of the authorisation was the bringing of the case before the court, which of course had already been done by that stage.
- On 23 December, Steven's case came before Mr Justice Mostyn, who terminated the standard authorisation. Hillingdon withdrew its application to be appointed as welfare deputy, which was the effect of the orders it had sought. He declared it to be in Steven's best interests to return to live with his father while the proceedings continued. Steven has been at home since that date.
The witnesses
- Dr Dene Robertson is a consultant psychiatrist specialising in behavioural disorders at the Bethlem Royal and Maudsley Hospitals. He described the nature of Steven's conditions. He explained that Steven did not have effective verbal means of expressing displeasure and hypothesised that one important factor in the increase in his challenging behaviour at the support unit was the change arising from his move away from home. As he described it, "Steven needs things just so".
- Dr Robertson considered that the support unit had done its work professionally, and emphasised that it was not necessarily inappropriate to work in this way with people with behavioural disorders. He believed that there were a number of substantial successes, notably the weight loss, and he also says that aspects of Steven's behaviour since his return home may be a legacy of his time at the support unit. However, in relation to the counting of incidents in the course of functional analysis, he recognised the risk of circularity, with bad behaviour arising from confinement being used as a reason for continuing the confinement.
- Dr Robertson confirmed that overall Steven had not suffered significant harm as a result of his experiences. He firmly recommends residence with his father as being in Steven's best interests. It involves the least change and preserves his main relationship. Through their shared experiences, Mr Neary is the person who is best able to engage with the narrative of Steven's inner life. While the factors remain as they are, the balance of advantage weighs strongly in favour of Steven being at home. Dr Robertson gave advice about the various elements of Steven's future support package. Most of these are already in place, and the remainder soon will be.
- In conclusion, Dr Robertson makes a point of real importance, which I strongly endorse:
"I note that there are currently understandable difficulties between Mr Neary and the service responsible for providing care to Steven as result of the opposition inherent in these proceedings. In my opinion, once these proceedings are concluded, and irrespective of the outcome, it will be necessary for this relationship to be rebuilt in order to ensure that Steven's care package is delivered coherently and fully."
- Mr James O'Meara, an independent social worker who reported in January and February 2011, had reached the same conclusion about Steven's placement as Dr Robertson.
- The unit manager explained that the support unit is only one part of the overall service, which includes a day assessment service and an outreach service, which Steven has used. He spoke of having a good relationship and ongoing communication with Mr Neary. He described the need to be continuously aware of Steven, who is demanding to care for. He described the transitional plan, which was only terminated on 7 July. He accepted that Steven always wanted to be in Uxbridge with his father, although not all his statements are to be taken literally. He described Steven as having some good times at the support unit, with lots of fun and interaction with the staff.
- The manager accepted that there was no baseline for Steven's admission in 2010. There was no opening agreement and no formal best interests assessment. He explained the differences between the regime before and after April. He accepted that there was confusion about the direction of planning. Hillingdon was not sure what its plan was, and Mr Neary did not know what had been discussed.
- Two support carers who gave evidence know Steven very well. One has worked with him since 2005 and the other had been his main support carer from October 2008 until the end of 2010. Their evidence painted a clear picture, generally confirming events as described by Mr Neary. However, they were not afraid of pointing out that in the past he has tended to be too indulgent in some ways, something they felt was understandable in a parent. They also saw some benefits to Steven from his time at the support unit. For example, he has responded well to the reduction in food and in treats. At the same time, they felt the support unit sometimes did not take enough account of Steven's autism.
- The carers described being marginally involved in decisions about Steven, for example on the question of the cancellation of his holiday, or the enquiries of the best interests assessors. They firmly rejected the suggestion that incidents at home had been underreported. They described the events at home in December 2009 as having been difficult but did not accept that it had amounted to a crisis.
- The service manager has overall responsibility for safeguarding, as part of which he oversees the processes and administration of the supervisory body's functions in relation to applications for DOL authorisations. He gave evidence about the procedures as operated by Hillingdon, and spoke of training and liaison throughout London boroughs. He explained that Hillingdon has had some 18 requests for standard authorisations in the past year, of which 11 were granted, 4 being in relation to Steven.
- Under questioning, the service manager agreed a number of matters:
• It cannot be right to use DOL authorisations to prevent the removal of a person by their family.
• If there is a dispute about placement, the best interests assessment should reflect it, and the supervisory body should make it a condition that an immediate application to court is made.
• That a best interests assessment which makes no reference to the person's wishes and feelings or those of their family, to alternative care options or to the need for an IMCA, is crucially deficient.
• That an IMCA should have been appointed for Steven in April.
• That a much earlier application to court should have been made.
- The team manager confirmed that the current care plan is for Steven to remain at home. He explained the team structures within the local authority. He accepted that it was very unclear as to who was taking responsibility for decisions. He also accepted that welfare decisions were not properly recorded, as required by the Code of Practice to the Mental Capacity Act.
- He himself had no close involvement until March 2010 and there was certainly no senior management authority for any decision at the beginning of the year that Steven was not to go home. There was uncertainty as to whether a decision that he would not return was taken at the meeting in April or not. The team manager accepted that Hillingdon had never offered a compromise solution and that in consequence the only outcome that it would have accepted from the series of meetings with Mr Neary was his agreement to its plan. He accepted that the further 2½-month delay to enable Hillingdon to prepare its case before issuing proceedings was not defensible.
- The team manager accepted that there were lessons to be learnt – "How we engage with families, how we record. I have concerns about the processes we followed. I regret we didn't follow the procedures correctly and didn't involve father earlier. If we'd instituted proceedings earlier, I suspect we would have returned Steven home. I regret the slowness in getting the court proceedings started."
- At the end of his evidence, the team manager accepted that the publicity that the case was attracting had had an effect. He said (I amalgamate a series of questions and answers): "There were times when we seriously questioned what we were doing and whether it was appropriate. This is not reflected in the written record. [His own manager at the time] had a serious wobble in late August about whether this was the right direction, and she told me. She questioned whether we should pursue the welfare application, but the only alternative was Steven going home. I had periods of feeling extremely sure and moments when I myself questioned whether what we were doing was appropriate. In the end we determined to go forward. I didn't follow through on my doubts. There was a momentum by that stage. The way it was presented outwardly did not reflect the real concerns, including those held by the incoming director in October 2010."
- This part of the team manager's evidence was commendably frank. These decisions are often not easy, particularly if dependable procedures have not been followed. Where a dilemma exists, the court provides an accessible forum. Often, parties will have a clear view of what they are proposing, but if a party needs more evidence or is uncertain about the best outcome in a difficult case, it is no shame to say so. Proceedings in the Court of Protection need not be adversarial. The fact that these have been is no more than the consequence of Hillingdon's stance. It is a great pity that it did not issue proceedings at least six months earlier, and regrettable that when it finally did so it did not share its internal doubts with others, instead pitching its case as high as it did.
- Mr Mark Neary explained that Steven is now fine. He says things have gone really smoothly and that the number of incidents has dropped. He hopes that a new care package can be agreed, although he has some residual anxieties. As to these, I would comment that Mr Neary understandably wants the help Steven gets to be just right, but at one point in his evidence, concerning input from a new occupational therapist, there were signs of his being somewhat over-anxious.
- Looking back at the events after December 2009, Mr Neary felt that there had been an overreaction on the part of Hillingdon. He acknowledged that he had previously been unduly timid in confronting Steven's food behaviour, and said that he now understood that Steven can negotiate these issues better than he had realised. He also described the help with Steven's weight as tremendous and a couple of ideas concerning his behaviour as being very useful. However, he contended that there was no reason why this intervention could not have happened at home.
- Mr Neary strongly denied agreeing to any long-term placement for Steven, but described getting bogged down in day-to-day matters and losing sight of the big issue. He felt that he was being managed and appeased. After the stopping of Steven's activities in April, he became confused about the DOL safeguards process. As he put it ""Safeguards" seemed good – the reality didn't. I didn't know where I was."
- Speaking of his relations with the social worker, he said that he found them quite awkward ever since the meeting in January where the idea of reviewing the support package was brought up. He said that this fear remained "tattooed on my brain" and from that point on he was worried about the consequences of rocking the boat. Indeed, when he finally put his foot down on 9 July, and directly asked for Steven's return, Hillingdon's immediate response was that the necessary support package would not be made available. Mr Neary became understandably emotional when describing how powerless he had felt.
- Mr Neary expressed concern about the best interests assessments, and the way he felt they were rubber-stamped by the supervisory body. He also questioned the neutrality of the body, when the service manager worked so closely with the teams directly involved. He suggested that the process should be a lot more independent than that.
- He explained that it was only in September that he had learned enough to feel confident in spelling out his point of view: "Why are they not saying that the deprivation is Steven being there? He doesn't want to be there, I don't want him to be there. She said it wasn't in her remit to consider the environment, that was a given."
- Mr Neary had been visibly moved by the final answers given by the team manager. He explained that this was because he saw it as "some sort of acknowledgement of big mistakes, a release of pressure after a very difficult year."
The issues
- I shall address them in this order:
(1) Were Steven's rights under Article 8 of the Convention violated at any point between in or around 5 January 2010 and 23 December 2010?
(2) Was Steven deprived of his liberty between about 5 January and 14 April 2010 (period A)?
(3) Was there lawful authority for any deprivation of liberty in this period?
(4) Was Steven deprived of his liberty without lawful authority under schedule A1 MCA, contrary Article 5(1)(e) between
• 15 April to 20 June 2010 (period B), and/or
• 21 June to 20 September 2010 (period C), and/or
• 21 September to 18 November 2010 (period D), and/or
• 19 November to 23 December 2010 (period E)?
(5) Was Steven deprived of a speedy review of his deprivation of liberty contrary to Article 5(4) at any time during periods B – E above, due to a failure to appoint an IMCA under section 39D until November 2010, and/or to conduct a review of the best interests assessments under part 8 schedule A1, and/or to refer the matter to the court sooner than 28 October 2010?
- The parties presented the issues in a different order, with the claim under Article 8 following the claims under Article 5. It nonetheless seemed to me during the hearing that the issue that arises under Article 8 represents the nub of the matter. The principles surrounding the right to respect for family life are well understood. They do not owe their origins to the Mental Capacity Act 2005, or even, I would suggest, to the Human Rights Act 1998, and they apply directly to cases where the legitimacy of the removal of a person from a family is in question. There is no automatic precedence between Convention articles. There will of course be cases where a grave breach of Article 5 overshadows consequences in terms of Article 8, but this will not always be so. In the present case, it seems to me that the real issue relates to Steven's absence from his family home, rather than the deprivation of liberty to which he is to some degree or other necessarily subject wherever he lives.
- In saying this, I do not imply that deprivation of liberty issues are unimportant in Steven's case. But by viewing the case primarily through the prism of Article 5 one risks repeating a central fallacy and conflating the secondary question of whether a person is lawfully deprived of his liberty with the primary question of where he should be living.
- I suspect that one reason for the order in which the issues have been argued is that the Mental Capacity Act 2005 is still relatively young. It came into force on 1 October 2007 and the DOL regime followed by way of amendment on 1 April 2009. To a degree, social workers and lawyers are still finding their feet as to how it works, or should work, in practice. At all events, where the history shows shortcomings on the part of Hillingdon in relation to aspects of the DOL regime, these relate to aspects that have not previously come before the courts so far as I am aware, namely, (1) the propriety of using a DOL authorisation to prevent a return home, and (2) the extent of a supervisory body's responsibility to scrutinise DOL assessments.
(1) Were Steven's rights under Article 8 of the Convention violated at any point between in or around 5 January 2010 and 23 December 2010?
- The positive obligation to respect the right to family life in the area of adult care, as in the case of children, is reflected in numerous domestic and European statements of principle. For these purposes one will suffice. In Re S (Adult Patient)(Inherent Jurisdiction: Family Life) [2002] EWHC 2278 (Fam) Munby J put it this way:
[115] I am not saying that there is in law any presumption that mentally incapacitated adults are better off with their families: often they will be; sometimes they will not be. But respect for our human condition, regard for the realities of our society and the common sense to which Lord Oliver of Aylmerton referred in In re KD …, surely indicate that the starting point should be the normal assumption that mentally incapacitated adults will be better off if they live with a family rather than in an institution – however benign and enlightened the institution may be, and however well integrated into the community – and that mentally incapacitated adults who have been looked after within their family will be better off if they continue to be looked after within the family rather than by the State.
[116] We have to be conscious of the limited ability of public authorities to improve on nature. We need to be careful not to embark upon 'social engineering'. And we should not lightly interfere with family life. If the State – typically, as here, in the guise of a local authority – is to say that it is the more appropriate person to look after a mentally incapacitated adult than her own partner or family, it assumes, as it seems to me, the burden – not the legal burden but the practical and evidential burden – of establishing that this is indeed so. And common sense surely indicates that the longer a vulnerable adult's partner, family or carer have looked after her without the State having perceived the need for its intervention, the more carefully must any proposals for intervention be scrutinised and the more cautious the court should be before accepting too readily the assertion that the State can do better than the partner, family or carer.
[117] At the end of the day, the simple point, surely, is this: the quality of public care must be at least as good as that from which the child or vulnerable adult has been rescued. Indeed that sets the requirement too low. If the State is to justify removing children from their parents or vulnerable adults from their relatives, partners, friends or carers it can only be on the basis that the State is going to provide a better quality of care than that which they have hitherto been receiving: see Re F; F v Lambeth London Borough Council [2002] 1 FLR 217, at para [43].
- The mere fact that a local authority's view of best interests is not subsequently upheld by a court does not of course show that Article 8 rights have been infringed. However, in the present case, a number of features collectively persuade me that Steven's right to respect for his family life was breached.
(1) Hillingdon approached matters without any proper regard to the principle set out in the previous paragraph. Nowhere in their very full records of Steven's year in care is there any mention of the supposition that he should be at home, other things being equal, or the disadvantages to him of living away from his family, still less an attempt to weigh those disadvantages against the supposed advantages of care elsewhere. No acknowledgement ever appears of the unique bond between Steven and his father, or of the priceless importance to a dependent person of the personal element in care by a parent rather than a stranger, however committed. No attempt was made at the outset to carry out a genuinely balanced best interests assessment, nor was one attempted subsequently. The first best interests assessment that deserves the name is the IMCA report of 18 November 2010.
(2) Hillingdon's approach was calculated to prevent proper scrutiny of the situation it had created. In the weeks after Steven's admission, it successfully overbore Mr Neary's opposition. It did not seriously listen to his objections and the suggestion that it might withdraw its support for Steven at home was always likely to have a chilling effect. Once Mr Neary's resistance was tamed, the question of whether Steven was in the right place did not come under any balanced assessment.
(3) Between April and July 2010 Hillingdon pursued two inconsistent agendas. The professionals were opposed to Steven returning home, whether or not a final decision had been taken. The agenda so far as Steven and Mr Neary were concerned was a return home under the transition plan. It was only when the transition plan was about to lead to an actual return home that the pursuit of two agendas became unfeasible and the true view of the professionals was disclosed. The records show that the professionals were at times uneasy about this lack of frankness, but it happened nonetheless.
(4) The use of DOL authorisations from April to December 2010 as a means of controlling Steven's activities was not justified on the information available to Hillingdon. As a direct result of an incident when he had not been adequately supervised, he was deprived of activities that are important to him for weeks and in some cases months, and he was prevented from going on holiday.
(5) Even in July 2010, when the cat of Hillingdon's thinking was out of the bag, it took almost 4 months for an application to court to be issued, with Steven remaining at the support unit in the meantime.
(6) Although Hillingdon has accepted and supported Steven's placement at home since the receipt of the experts' reports in February/March of this year, the application it presented in December 2010 and pursued up to the hearing in May 2011 has contained no concessions to Mr Neary's concerns and no acceptance of any shortcomings whatever in relation to past events. Such concessions as were made emerged in cross-examination. Regrets were expressed, but no apology has so far been made to Mr Neary or to Steven.
(7) On 20 May 2011, the eve of the hearing, Hillingdon circulated a three-page media briefing note to most of the national media. The document was designed to counteract adverse publicity that Hillingdon has received, and against which it had not attempted to defend itself. Nonetheless, it is a sorry document, full of contentious and inaccurate information, and creating a particularly unfair and negative picture of Steven and his behaviour. I learned about the document by chance on the last day of the hearing, expressed dismay, and asked for an explanation. I am told that it was authorised by the Director of Social Care, the Head of Corporate Communications and the Borough Solicitor. It is now accepted "in hindsight" that an error of judgment was made in issuing the briefing note. That is indeed so, though again hindsight has nothing do with it. In addition, Hillingdon has unreservedly apologised to the court. That courtesy is appreciated, although an apology for the document is in truth not owed to the court but to Steven and his father.
I also note that Hillingdon has done its best to undo the situation by contacting every recipient informing them that I had directed that no part of it should be published in any circumstances. Again, I appreciate the intention behind this, but I should make clear that I gave no such direction. The only control that this court has exercised over reporting about Steven is in the form of the very minor restrictions on the reporting of the hearing itself, as referred to above. Other than that, the media will cover the story in whatever way it chooses, and no doubt it will continue to respect Steven's need to be left in peace, as it has done since the hearing in February.
(8) Lastly, a number of the matters raised below in relation to deprivation of liberty are directly relevant to my conclusion under Article 8.
(2) Was Steven deprived of his liberty between about 5 January and 14 April 2010 (period A)?
- On Steven's behalf, it is said that he was deprived of his liberty during this period, and that Hillingdon should have invoked an effective DOL procedure. Hillingdon does not accept this for two reasons. In the first place, it relies upon Mr Neary's consent or lack of objection. Secondly, it argues that the restrictions on Steven were greater after 15 April than they were before.
- Article 5(1) is only engaged if there is a deprivation of liberty, whereupon the safeguards provided by the DOL regime under section 4A and schedule A1 of the 2005 Act come into play. It is therefore necessary to identify whether a person is deprived of liberty by making a close examination of the specific circumstances. In such cases there will always be some restriction on liberty: the question is whether they are of a degree or intensity to amount to deprivation.
- The Deprivation of Liberty Safeguards Code of Practice, supplementing the main Mental Capacity Act 2005 Code of Practice, refers at paragraph 2.6 to a number of features that may accompany deprivation of liberty:
• Restraint is used, including sedation, to admit a person to an institution where that person is resisting admission.
• Staff exercise complete and effective control over the care and movement of a person for a significant period.
• Staff exercise control over assessment, treatment, contact and residence.
• A decision has been taken by the institution that the person will not be released into the care of others, or permitted to live elsewhere, unless the staff in the institution consider it appropriate.
• A request by carers for a person to be discharged to their care is refused.
• A person is unable to maintain social contacts because of restrictions placed on their access to other people.
• The person loses autonomy because they are under continuous supervision and control.
- Recent decisions on the nature of deprivation of liberty have been given by Baker J in G & E and others [2010] EWHC 621, upheld on appeal at [2010] EWCA Civ 822, and by Parker J in MIG & MEG and others [2010] EWHC 785 (Fam), upheld on appeal as P and Q v Surrey County Council and others [2011] EWCA 190. In the first case, it was agreed that there was a deprivation of liberty where the person's family objected to placement in a residential home and the local authority had not invoked the DOL procedure. In the second case, the claims of the family of the two young people concerned were weak, as a result of abusive and criminal behaviour within their home, which led to their removal, and the mother's request for their return to her care was nominal. Placements in a foster home and a specialist home for adolescents were found not to amount to deprivation of liberty in that case.
- In Steven's case, the following features characterised Period A:
• The support unit is a care home within the meaning of the Care Standards Act 2000.
• Steven did not want to be there and wanted to go home.
• Mr Neary's request for Steven to be discharged was refused.
• Mr Neary's subsequent acquiescence did not represent agreement, but a feeling that resistance was futile.
• A programme of assessment of indeterminate length was embarked upon, with Steven's behaviour being meticulously controlled and recorded as part of the functional analysis programme.
• Until 16 January he had no contact with his father at the request of the support unit.
• Thereafter, and until 22 March, his parents were allowed to visit but not to take him out. His father visited 2/3 times a week and his mother 1/2 times a week.
• Thereafter, an accompanied visit home took place on Monday afternoons as part of the transition programme.
• Steven was allowed to attend most of his normal activities in the community accompanied by two carers.
• He was under the eye of staff all times.
• He was occasionally physically restrained, in the form of blocking and holding his hands, to prevent challenging behaviour and physical outbursts.
• His daily care needs were provided under close supervision and control.
• He continued voluntarily to take anti-psychotic medication to control his challenging behaviour and anti-epileptic medication to control his moods.
• The doors to support unit were locked with normal household locks. He was not allowed out of the support unit on his own: when he got out on 11 April it was a cause for serious concern.
- These features lead to the conclusion that Steven was being deprived of his liberty. Key features are his objection to being at the support unit, the objection of his father, and the total effective control of Steven's every waking moment in an environment that was not his home.
- While each case must be assessed on its own facts, Steven's circumstances have more in common with those of G & E than those of P & Q. Another feature that differentiates it from those two decisions is that at the end of Period A he undoubtedly became subject to deprivation of liberty. Although the existence of deprivation of liberty is not determined by comparison with adjoining periods, it is relevant to cross-check this first period against what followed. In relation to Period B, Hillingdon points to the withdrawal of Steven's community activities pending risk assessment, the formal allocation of 1:1 supervision within the support unit, and the addition of an alarm system as distinguishing it from Period A. These were undoubtedly further deprivations of liberty, but they were also accompanied by a marked increase in Mr Neary's resistance to the placement. Overall, I do not accept that the changes made in April transformed restriction into deprivation. Although the withdrawal of activities undoubtedly impacted on Steven, his essential experience of being away from home and in the support unit was in my view constant throughout the year and amounted to a deprivation of liberty. Nor can I attach much weight to the fact that a worker at the support unit completed a questionnaire in March, in some respects incorrectly, and concluded that there was no deprivation of liberty. Hillingdon's case in relation to this period is also contradicted by my finding in relation to the absence of real consent from Mr Neary.
(3) Was there lawful authority for any deprivation of liberty in this period?
- It follows from the above that there was not.
(4) Was Steven deprived of his liberty without lawful authority under schedule A1 MCA, contrary Article 5(1)(e) between
(i) 15 April to 20 June 2010 (period B), and/or
(i) 21 June to 20 September 2010 (period C), and/or
(iii) 21 September to 18 November 2010 (period D), and/or
(iv) 19 November to 23 December 2010 (period E)?
- This calls for consideration of the DOL scheme represented by section 4A and schedule A1 of the Act.
- A person may deprive another person of their liberty if they are giving effect to the relevant decision of the court or if the deprivation is authorised by schedule A1: section 4A(3) & (5). Applications to the court are governed by section 21A.
- Part 1 of schedule A1 allows the managing authority of a care home to lawfully deprive a resident of their liberty for the purpose of giving care if a standard or urgent authorisation is in force. The terms of the authorisations are expressed to authorise deprivation of liberty at a named care home.
- Part 5 allows the managing authority to give an urgent authorisation for a period of up to 7 days. In Steven's case, the unit manager acted as the managing authority.
- Part 4 allows the supervisory body to give a standard authorisation at the request of the managing authority for a maximum period of 1 year (paragraphs 42 and 51). The supervisory body in Steven's case is Hillingdon, whose functions in this respect are performed by the service manager.
- When a request is received from a managing authority for a standard authorisation, the supervisory body arranges for six varied assessments to be carried out to determine whether the qualifying requirements under Part 3 are satisfied (paragraph 12). These assessments are prepared on standard forms. The central one is the best interests assessment. It is carried out by an assessor under the terms of paragraphs the 38-45.
- By paragraph 16 there are four conditions that must exist if the best interests requirement is met:
(1) The person must be a detained resident, defined in paragraph 6 as a person detained in a care home for the purpose of being given care in circumstances which amount to deprivation of the person's liberty, and
(2) It must be in the best interests of the person for him to be a detained resident, and
(3) It must be necessary for him to be a detained resident in order to prevent harm to him, and
(4) His being a detained resident must be a proportionate response to the likelihood of him suffering harm and the seriousness of that harm.
- The selection and appointment of assessors is provided for by the Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008 (SI no. 1858). All assessors act as individual professionals and are personally accountable for their decisions. Managing authorities and supervisory bodies must not seek to influence their decisions (paragraph 4.16 of the DOL Code).
- Guidance on the best interests assessment is contained in the DOL Code at paragraphs 4.58-4.76. The principles set out in section 4 of the Act and explained in chapter 5 of the main Code of Practice apply. These include taking account of the wishes and feelings of the person concerned and consulting with family (section 4(7) and paragraph 4.65). The person must be involved in the assessment process as much as possible, and helped to participate in decision-making. The Code emphasises that it is essential that the best interests assessor provides an independent and objective view of whether or not there is a genuine justification for deprivation of liberty, taking account of all the relevant views and factors (paragraph 4.66).
- The purpose of the best interests requirement is to ensure that a person is only deprived of liberty where it is in his best interests and necessary and proportionate in relation to the likelihood and seriousness of the harm that he might otherwise suffer. The duties of the best interests assessor are set out at paragraphs 38-45 of the schedule, and include a requirement to state a maximum authorisation period and a power to make recommendations for conditions that should apply.
- Although the framework of the Act requires the supervising body to commission a number of paper assessments before granting a standard authorisation, the best interests assessment is anything but a routine piece of paperwork. Properly viewed, it should be seen as a cornerstone of the protection that the DOL safeguards offer to people facing deprivation of liberty if they are to be effective as safeguards at all.
- The corollary of this, in my view, is that the supervisory body that receives the best interests assessment must actively supervise the process by scrutinising the assessment with independence and with a degree of care that is appropriate to the seriousness of the decision and the circumstances of the individual case that are or should be known to it.
- Paragraph 50 provides that a supervisory body must give a standard authorisation if all assessments are positive. This obligation must be read in the light of the overall scheme of the schedule, which cannot be to require the supervisory body to grant an authorisation where it is not or should not be satisfied that the best interests assessment is a thorough piece of work that adequately analyses the four necessary conditions.
- In support, I refer to the fact that the supervisory body has control over the terms of the authorisation in relation to its length and any conditions that should be attached. It does not have to follow the recommendations of the best interests assessor on those issues. It would not be possible for the supervisory body to make decisions of this kind rationally without having a sufficient knowledge base about the circumstances of the person affected. In all cases, it is open to the supervisory body to go back to the best interests assessor for discussion or for further enquiries to be made.
- I also refer to the decision of Mr Justice Charles in A County Council v MB and ors [2010] EWHC 2508 (COP). In that case, a best interests assessor had conscientiously concluded that the best interests requirement was not met in the case of an elderly lady in a residential home, even though there was no practical alternative accommodation for her to go to. At paragraph 19, the judge described the assessor's reasoning as flawed because she did not compare and contrast viable and practically available alternative placements. This is an example of the kind of scrutiny that can be carried out by a supervisory body as well as by a court.
- I also rely on the obvious fact that the intention of paragraph 50 cannot be to require a supervisory body to give an authorisation simply because the best interests assessment makes a positive recommendation, whatever the quality of the work disclosed in the assessment. On behalf of Hillingdon, it was accepted for the sake of argument that it would not be bound by an assessment that was in effect so poor as to be "a joke", so it follows that paragraph 50 cannot be read as if it simply required a positive answer without cogent reasoning. Hillingdon has however suggested that a supervisory body is bound to act upon any best interests assessment that is not grossly and obviously defective.
- Against this, the EHRC and the Official Solicitor argue that where a supervisory body knows or ought to know that a best interests assessment is inadequate, it is not obliged to follow the recommendation. On the contrary it is obliged to take all necessary steps to remedy the inadequacy, and if necessary bring the deprivation of liberty to an end, including by conducting a review under Part 8 or by applying to the court. This is in my view a correct statement of the law. The suggestion that the supervisory body is bound to act on any assessment that is not grossly and obviously defective sets the standard too low. It supposes an essentially passive supervisory body. This would not meet the objectives of the Act and would not provide effective protection against breaches of Article 5.
- The nature of this process for supervisory bodies is not likely to be very burdensome, given the relatively small number of cases, and if it were it would be fully warranted to ensure that the right outcomes are reached for people who are likely to be the most vulnerable service users. It should never be a rubberstamping process. A standard authorisation has the same effect as a court order and there is no reason why it should receive lesser scrutiny.
- In the present case, I find that the urgent authorisation and the first standard authorisation, covering Period B were flawed. The assessment does not mention Steven's wish to go home or Mr Neary's request that Steven should be returned to his care. It does not mention a placement at home as a means of avoiding deprivation of liberty, instead referring obliquely by means of a condition to consideration being given to the most appropriate place in which to give ongoing care. This could as well relate to a long-term alternative specialist placement in accordance with the emerging plan of the professionals.
- The evidence of the service manager acknowledged the shortcomings in the assessment, yet the standard authorisation was processed within the same day. At this point, he was in possession of very little real information about the situation, but he ought to have known that there was a major issue about whether Steven should not be at the support unit at all. He should have sent the best interests assessment back for reconsideration of that issue and for clarification of the other missing elements.
- I accept that the service manager, a very experienced social worker, was carrying out the procedures in accordance with the rules as he understood them. In marked contrast to the situation in G & E, this local authority had taken appropriate steps to acquaint itself with the DOL regime, through training and liaison with other authorities. Even so, the decision about Steven was made on the basis of insufficient scrutiny of inadequate information, with the consequence that the resulting standard authorisation did not constitute a lawful basis for deprivation of liberty during this period.
- In relation to Period C, the same points can be made and the same conclusion reached. The best interests assessment was an even flimsier document, as the service manager accepts, but once again it was processed within the day.
- In relation to Period D, I am in some doubt about what information appeared in the best interests assessment. It seems that no reference was made to Steven's wishes, his father's wishes or to the alternative possibility of a placement at home. By this stage the service manager had far more information, having attended the meeting in August, wisely or not. Even so, the authorisation was granted. The same points can be made and the same conclusions reached as for the previous periods.
- In relation to period E, the matter was by now approaching the Court of Protection, and the IMCA had been appointed and had attended Mr Neary's meeting with the best interests assessor. It is only in this assessment that the central question of the possibility of a return home is squarely raised, but even then it is not answered. Steven's wishes are not referred to. The length of the authorisation recommended (5 months) is not explained. The same points can be made and the same conclusions reached as for the previous periods.
- However, the matter does not end there. On behalf of Hillingdon, Mr Harrop-Griffiths raises three points of defence. He first argues that Hillingdon as a supervisory body cannot be held liable for any breach of Article 5(1) by Hillingdon as a managing authority responsible for the support unit. He argues that the supervisory body did not directly cause the managing authority to detain Steven. He refers to the TTM case (above) and the authorities cited therein.
- I cannot accept this argument, which in fairness was not pressed. The supervisory body's actions were undoubtedly the direct cause of the deprivation of liberty. Anyhow, if the argument were taken to its logical conclusion, it would have the impossible consequence that supervisory bodies would be immune from liability in all circumstances.
- Mr Harrop-Griffiths's second argument relies upon paragraph 3(2) of schedule A1 as conferring immunity on the local authority. Part 1 of schedule A1 reads as follows:
1(1) This Part applies if the following conditions are met.
(2) The first condition is that a person ("P") is detained in a hospital or care home — for the purpose of being given care or treatment — in circumstances which amount to deprivation of the person's liberty.
…
2 The managing authority of the hospital or care home may deprive P of his liberty by detaining him as mentioned in paragraph 1(2).
No liability for acts done for purpose of depriving P of liberty
3(1) This paragraph applies to any act which a person ("D") does for the purpose of detaining P as mentioned in paragraph 1(2).
(2) D does not incur any liability in relation to the act that he would not have incurred if P—
(a) had had capacity to consent in relation to D's doing the act, and
(b) had consented to D's doing the act.
No protection for negligent acts etc
4(1) Paragraphs 2 and 3 do not exclude a person's civil liability for loss or damage, or his criminal liability, resulting from his negligence in doing any thing.
(2) Paragraphs 2 and 3 do not authorise a person to do anything otherwise than for the purpose of the standard or urgent authorisation that is in force.
(3) In a case where a standard authorisation is in force, paragraphs 2 and 3 do not authorise a person to do anything which does not comply with the conditions (if any) included in the authorisation.
- The clear intention of these provisions is to provide protection to staff for actions lawfully carried out in the course of controlling a detained person. I doubt that they can truly be said to apply to the actions of a supervisory body in granting a standard authorisation. However, were it necessary to hold that Hillingdon as a supervisory body had acted negligently in issuing successive standard authorisations on the basis of inadequate material while at the same time failing to apply to court or appoint an IMCA, I would be prepared to do so. By whichever route, I do not accept that this paragraph confers immunity on Hillingdon.
- Mr Harrop-Griffiths' third legal point involves differentiation between the legal responsibilities of the supervisory body and of the managing authority. In so far as this kind of analysis, when meeting individual points, is intended to provide a defence to one or other entity, I do not find it persuasive. I accept that in some cases a local authority will act as a supervisory body but not as a managing authority, for example in relation to a private care home. In this case, all the statutory functions are carried out by Hillingdon and it is therefore unnecessary to dwell unduly upon how liability should be apportioned. There are no cracks between the constituent parts through which liability might fall. Responsibility rests with Hillingdon as a borough.
(5) Was Steven deprived of a speedy review of his deprivation of liberty contrary to Article 5(4) at any time during periods B – E above, due to a failure to appoint an IMCA under section 39D until November 2010, and/or to conduct a review of the best interests assessments under part 8 schedule A1, and/or to refer the matter to the court sooner than 28 October 2010?
- Section 39D of the Act provides as follows:
Person subject to Schedule A1 without paid representative
39D(1) This section applies if—
(a) an authorisation under Schedule A1 is in force in relation to a person ("P"),
(b) P has a representative ("R") appointed under Part 10 of Schedule A1, and
(c) R is not being paid under regulations under Part 10 of Schedule A1 for acting as P's representative.
(2) The supervisory body must instruct an independent mental capacity advocate to represent P in any of the following cases.
(3) The first case is where P makes a request to the supervisory body to instruct an advocate.
(4) The second case is where R makes a request to the supervisory body to instruct an advocate.
(5) The third case is where the supervisory body have reason to believe one or more of the following—
(a) that, without the help of an advocate, P and R would be unable to exercise one or both of the relevant rights;
(b) that P and R have each failed to exercise a relevant right when it would have been reasonable to exercise it;
(c) that P and R are each unlikely to exercise a relevant right when it would be reasonable to exercise it.
(6) The duty in subsection (2) is subject to section 39E.
(7) If an advocate is appointed under this section, the advocate is, in particular, to take such steps as are practicable to help P and R to understand the following matters—
(a) the effect of the authorisation;
(b) the purpose of the authorisation;
(c) the duration of the authorisation;
(d) any conditions to which the authorisation is subject;
(e) the reasons why each assessor who carried out an assessment in connection with the request for the authorisation, or in connection with a review of the authorisation, decided that P met the qualifying requirement in question;
(f) the relevant rights;
(g) how to exercise the relevant rights.
(8) The advocate is, in particular, to take such steps as are practicable to help P or R—
(a) to exercise the right to apply to court, if it appears to the advocate that P or R wishes to exercise that right, or
(b) to exercise the right of review, if it appears to the advocate that P or R wishes to exercise that right.
(9) If the advocate helps P or R to exercise the right of review—
(a) the advocate may make submissions to the supervisory body on the question of whether a qualifying requirement is reviewable;
(b) the advocate may give information, or make submissions, to any assessor carrying out a review assessment.
(10) In this section—
• "relevant rights" means—
(a) the right to apply to court, and
(b) the right of review;
• "right to apply to court" means the right to make an application to the court to exercise its jurisdiction under section 21A;
• "right of review" means the right under Part 8 of Schedule A1 to request a review.
- It is fortunately not necessary to spend long considering whether Steven's entitlement to an IMCA was engaged in April 2010. Hillingdon rightly asked for one to be appointed at that time and the agency should not have refused to provide one. Faced with the refusal, Hillingdon should have persisted. The service manager accepted in his evidence that an IMCA should have been put in place in April. A cursory reading of the role of the IMCA as described in the schedule demonstrates how particularly valuable such an intervention could have been at that stage. The contribution made by an IMCA six months later serves as further confirmation.
- Part 8 of schedule A1 permits the supervisory body to carry out a review of a standard authorisation at any time. Consistent with the style of the schedule as a whole, the provisions are wordy. I will not further lengthen this judgment by reference to them, save to say that they could have offered Hillingdon a route for reconsidering questions of Steven's welfare, and the necessity and proportionality of his being kept in the support unit. I accept that the service manager considered the meeting on 30 April to be in the nature of a review, but no independent assessor was appointed and my conclusion is that there was in reality no Part 8 review of the standard authorisations.
- Lastly, I have already indicated that the protracted delay in applying to court in this case was highly unfortunate. There are repeated references, particularly by the service manager, to the burden being on Mr Neary to take the matter to court if he wished to challenge what was happening. That approach cannot be right. I have already referred to the decision in Re S, which rightly observes that the practical and evidential burden is on a local authority to demonstrate that its arrangements are better than those that can be achieved within the family. It will discharge the practical burden by ensuring that there is a proper forum for decision. It will not do so by allowing the situation it has brought about to continue by default. Nor is it an answer to say, as Hillingdon has done, that Mr Neary could always have gone to court himself, and that it had told him so. It was Steven's rights, and not those of his father, that were in issue. Moreover, local authorities have the advantage over individuals both in terms of experience and, even nowadays, depth of pocket. The fact that an individual does not bring a matter to court does not relieve the local authority of the obligation to act, it redoubles it.
- Taking these three matters together – no IMCA, no effective review, and no timely issue of proceedings – I agree with the Official Solicitor and with the team manager that had these steps being taken in a timely way, it is more likely than not that Steven would have returned home very much earlier than he did.
- That leaves the question of whether these circumstances amount to a breach of Article 5(4). The obligations on the State in cases of this kind are currently the subject of an application to the European Court of Human Rights in M v H, arising from the decision in R(H) v Secretary of State for Health [2006] 1 AC 441.
- Subparagraph 4 of Article 5 reads:
(4) Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
- The local authority is obliged by section 6 of the Human Rights Act 1998 to act compatibly with Convention rights. Section 3 of that Act obliges public bodies so far as it is possible to do so to read primary legislation in a way that is compatible with Convention rights. It is well established that in addition to the obligation to avoid violating rights, the Convention also imposes positive obligations on the State to protect individuals from violations and assist those whose rights have been violated. In Storck v Germany [2005] ECHR 61603/00 the European Court described these as an obligation to provide effective protection of vulnerable persons, including reasonable steps to prevent a deprivation of liberty of which the authorities have or ought to have knowledge. The submission of the EHRC in this case is that these considerations should lead local authorities to interpret their powers of review under the 2005 Act broadly and make good and frequent use of their power of reference to the court.
- I note that paragraphs 8.7-8.8 of the main Code of Practice to the Act deals with the question "Who should make the application?" in this way:
8.7 The person making the application will vary, depending on the circumstances. ...
8.8 For cases about serious or major decisions concerning medical treatment ... the NHS Trust or other organisation responsible for the patient's care will usually make the application. If social care staff are concerned about a decision that affects the welfare of a person who lacks capacity, the relevant local authority should make the application.
- Neither these paragraphs nor Storck directly answer the question in this case. It is one of a number of issues arising from Steven's situation, and one on which I have not heard the fullest argument. My conclusion is nonetheless that there is an obligation on the State to ensure that a person deprived of liberty is not only entitled but enabled to have the lawfulness of his detention reviewed speedily by a court. The nature of the obligation will depend upon the circumstances, which may not readily be transferable from one context to another. In the present case, I have already found that the three matters together – no IMCA, no effective review, and no timely issue of proceedings –made it more likely than not that Steven would have returned home very much earlier than he did. Those omissions had consequences, and Hillingdon thereby defaulted on its obligations towards Steven. I accordingly find that they amounted to a breach of his rights under Article 5(4).
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