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BIRMINGHAM CITY COUNCIL EX PARTE DEBORAH KILLIGREW, R v. [1999] EWHC Admin 611 (29th June, 1999)
IN
THE HIGH COURT OF JUSTICE
CO/3130/98
QUEEN'S
BENCH DIVISION
CROWN
OFFICE LIST
Royal
Courts of Justice
Strand
London
WC2
Tuesday
29th June 1999
B e f o r e:
MR
JUSTICE HOOPER
- - - - - - - -
REGINA
-v-
BIRMINGHAM
CITY COUNCIL
EX
PARTE DEBORAH KILLIGREW
- - - - - - - -
(Computer-aided
Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited,
180 Fleet Street, London EC4A 2HD
Telephone No: 071 421 4040
Fax No: 071 831 8838
Official Shorthand Writers to the Court)
- - - - - -
MR
D WOLFE
(instructed by Tyndallwoods, Birmingham B15 3BE) appeared on behalf of the
Applicants.
MR
D OUDKERK (MR M HUTCHINGS, 29.6.99)
(instructed by Birmingham City Council, Legal Services, Birmingham B2 5EN)
appeared on behalf of the Respondent.
- - - - - - -
J U D G M E N T
(
As
Approved by the Court
)
- - - - - - -
Crown
Copyright
Tuesday
29th June 1999
JUDGMENT
MR
JUSTICE HOOPER: For reasons which I shall now give, this application succeeds.
1.
This is an application for judicial review of a "Care Plan" prepared by
the respondent in respect of the applicant and dated 11th November 1998 ("the
New Care Plan"). The condition of the applicant and that of her husband are
accurately described on behalf of the applicant in the amended Form 86A in the
following way:
"Deborah
Killigrew was diagnosed as having multiple sclerosis when she was 17 years old.
She is now 40. Her condition has gradually worsened with the degenerative
nature of multiple sclerosis: she frequently shakes uncontrollably, has been
registered blind for the last seven years and has deep vein thrombosis which
gives rise to bad circulatory problems; she has a form of epilepsy which
results in extended seizures; she is incontinent and physically unable to
tolerate a catheter. She cannot undertake any personal task unaided
(including, for example, getting into and out of bed, dressing or moving from
her chair).
Deborah
Killigrew's condition has worsened gradually over time and has continued to do
so in recent months. This is illustrated, for example, by the fact that, in
December 1997 she was able to stand whilst strapped to a standing frame;
however, by the end of January 1998, she was unable to weight bear at all.
Deborah
Killigrew lives with her husband of 20 years, Tony. He has arthritis in his
hips; he has a chronic back condition; he has been registered disabled for the
last four years; although previously able to move his wife safely, he can now
do so only at great risk to both her and himself."
2.
The applicant has been in receipt of 'Community Care' support from the
respondent for many years. Until the imposition of the New Care Plan, her most
recent Care Plan ("the Old Care Plan") was dated 11th December 1997. Pursuant
to that plan, as subsequently varied, the applicant receives seven days a week,
12 hours continuous care starting at 8.00am ("12 hours care"). This Care Plan
continues in force today following an order by Collins J staying the
implementation of the New Care Plan. That plan, prepared by Meg Allot,
provides for six hours care provided by qualified carers in the following way:
8.30am to 9.30am - Get up, wash, dress, toilet, two carers.
9.30am to 10.30am - Breakfast, dishes and household tasks, one carer.
12.30pm to 1.00pm - Toilet, two carers.
1.00pm to 2.00pm - Lunch and dishes, one carer.
4.00pm to 4.30pm - Toilet, two carers.
6.00pm to 7.00pm - Tea and dishes, one carer.
7.00pm to 8.00pm - Prepare for bed, toilet, two carers.
3.
There is an allowance for one extra hour per day for what is described as
emergencies. I was told during the course of argument that if this hour was
not actually used in any one day it could be "banked" and used on another day.
Subject to that extra hour, the total number of hours during which the
applicant will receive care from qualified carers under the New Plan is to be
six hours ("six hours care") rather than the 12 hours care in the Old Plan,
albeit that more carers are used. The New Plan provided for 20 hours of social
activity provided by community services volunteers.
4.
It is submitted on behalf of the applicant that the respondent failed to
consult properly, and that the reduction in the hours in the New Plan is
unlawful and perverse in that, in particular, it fails to identify why 12 hours
care was no longer thought to be necessary.
The
law
5.
Section 29 (1) of the National Assistance Act 1948 provides that:
"A
local authority [may, with the approval of the Secretary of State, and to such
extent as he may direct in relation to persons ordinarily resident in the area
of the local authority shall] make arrangements for promoting the welfare of
persons to whom this section applies, that is to say persons [aged eighteen or
over] who are...substantially and permanently handicapped by illness, injury,
or congenital deformity or such other disabilities as may be prescribed by the
Minister."
6.
Section 2 of the Chronically Sick and Disabled Persons Act 1970 provides
that:
"Where
a local authority having functions under section 29 of the National Assistance
Act 1948 are satisfied in the case of any person to whom that section applies
who is ordinarily resident in their area that it is necessary in order to meet
the needs of that person for that authority to make arrangements for all or any
of the following matters, namely -
(a)
the provision of practical assistance for that person in his home;...
(g)
the provision of meals for that person whether in his home or elsewhere;...
then,...subject...[...
to the provisions of section 7(1) of the Local Authority Social Services Act
1970 (which requires local authorities in the exercise of certain functions,
including functions under the said section 29, to act under the general
guidance of the Secretary of State)] [and to the provisions of section 7A of
that Act (which requires local authorities to exercise their social services
functions in accordance with directions given by the Secretary of State)], it
shall be the duty of that authority to make those arrangements in exercise of
their functions under the said section 29."
7.
Section 7(1) of the Local Authority Social Services Act 1970 provides that:
"Local
authorities shall, in the exercise of their social services functions,
including the exercise of any discretion conferred by any relevant enactment,
act under the general guidance of the Secretary of State."
8.
I have been shown the relevant guidance. It stresses the importance of
consultation with the "individual user", carers and other agencies. Once needs
have been assessed, "the objectives of any intervention should be agreed in the
form of a Care Plan" (paragraph 3.24). In paragraphs 3.47 and 3.48 special
provision is made for the contribution of the user's general practitioner to
the preparation of the Care Plan:
"3.47
It is expected that, as a matter of good practice, GPs will wish to make a
full contribution to assessment. It is part of the GP's terms of service to
give advice to enable patients to avail themselves of services provided by a
local authority.
3.48
Where advice is needed by the local authority in the course of assessment,
this should be obtained from the GP orally (eg by telephone) as far as
possible. A record should be kept of the advice given. In addition to the
information that only the patient's own GP can provide, local authorities may,
on occasion, also require a clinical examination or an interpretation of the
medical report provided by the GP. Local authorities should, therefore, be
aware that GPs have a personal duty to and a relationship with their patients,
and may not be best placed to act in addition as an assessor on the authority's
behalf. In such circumstances local authorities may wish other practitioners
to act in this capacity."
9.
Paragraph 3.18 provides:
".....local
authorities should publish readily accessible information about their care
services... It should include the authority's criteria for determining when
services should be provided and the assessment procedures, showing how and
where to apply for an assessment and giving information about how to make
representations and complaints."
10.
The respondent has published "Criteria for the Provision of Home Care".
Under the heading "Home Care Assistance can provide all sorts of assistance",
the respondent sets out the following:
"
- assisting someone to get up in the morning or go to bed at night;
- preparing and cooking a meal and assisting someone to eat;
- collecting a pension or doing a weekly shopping;
- acting as a link with doctors, nurses, family and neighbours;
- assisting and supporting a person's carer;
- assisting someone to keep their home reasonably clean and tidy;
- generally helping, encouraging, befriending and supporting- caring in every
way."
11.
A letter from Mr Herbert Lamming CBE, the Chief Inspector of the Social
Services Inspectorate, dated 14th December 1993, states:
"The
care plans of all users should be subject to regular review. For frail people
in the community, frequent reviews and adjustments of their care plans are
likely to be needed. Before any changes in services are made for existing
users, they should be reassessed. In those cases where assessments have been
undertaken, particularly under section 2(1) of the [Chronically Sick and
Disabled Persons Act 1980] authorities must satisfy themselves, before any
reduction in service provision takes place that the user does not have a
continuing need for it. So long as there is a continuing need, a service must
be provided although, following review, it is possible that an assessed need
might be met in a different way....."
In
R.
v. London Borough of Haringey ex parte Norton
,
unreported, 31st July 1998, CO/4613/97, Tucker J said that this passage in the
letter set out "what to my mind is obvious".
12.
Mr Oudkerk did not dispute that the letter accurately describes what the
local authority must do when considering a reduction. When asked in argument,
he said that the respondent's case was that it had satisfied itself that the
applicant did not have a continuing need for the service provision in the Old
Care Plan. He also submitted that six hours care with the additional one hour
and 20 hours to which I have referred was sufficient.
13.
Although the documentation in the case is voluminous, consisting of
affidavits, reports interrogatories and original records, the most important
documents are those documents which contain reasons for the decision that the
applicant did not have a continuing need for the service provision in the Old
Care Plan, namely 12 hours care and only needed six hours case.
14.
The Old Care Plan was short of reasoning, but in section 4 under "Tasks to
be done" was included "Supervision and Appropriate stimulation" (page 32).
15.
I read from the applicant's skeleton argument at paragraph 1.9:
"On
or about 19th January 1998, the respondent undertook a 'manual risk handling
assessment' to review the facilities and personnel required safely to move and
handle Deborah Killigrew. Among other things, as part of that assessment: (1)
Tony Killigrew was advised that lifting his wife could lead him to 'suffer
permanent injury that could stop him caring for his wife';
(2)
recommendations were made that the Killigrews be rehoused in more suitable
accommodation;
(3)
recommendations were made that - pursuant to the 'manual handling regulations'
- Deborah Killigrew should no longer be lifted or moved manually by her
professional carers."
16.
On 8th April 1998, following a request by the applicant and her husband
for a reassessment of the applicant's needs, the respondent wrote a letter to
the applicant which included the following:
"On
the 12th March 1998 you requested that the Social Services Department re-assess
the care needs and care package of Debbie Killigrew. At that time, you were
requesting that the Department provide carers over a 24 hour period. You drew
our attention to a manual handling risk assessment carried out by Mary
McKearney, manual handling advisor, North Birmingham Community Health Trust.
We also received a letter from you solicitor which repeated the request for a
re-assessment.
We
have now completed our assessment. The Local Authority, Social Services
Department, can provide an assessed package of care which we believe would meet
both Debbie's care needs as well as the manual handling regulations. However,
this would involve a substantial change to the care package that you had
previously, and would involve two carers coming on five occasions during the
day and evening. The current situation is that you have one carer over a 12
hour period each day. Following our telephone conversation today, I have
considered your request that we do not alter your care package until further
discussion takes place with you. We will therefore maintain the existing
arrangement until that discussion can take place. I shall arrange this as
quickly as possible."
17.
I return to the applicant's skeleton argument, paragraph 1.12:
"Deborah
Killigrew's growing concern at the prospect of her care provision being
worsened was a factor in her taking an overdose of medication in early May 1998
whilst she was in respite care. This resulted in a period of time in intensive
care at the Warwick Hospital."
18.
The next event was a meeting on 10th June 1998. By this time new
accommodation for the applicant and her husband had been found, into which it
was hoped they would move shortly. Included among the many features to help
the applicant was a ceiling track hoist from the bedroom to the bathroom.
Present at that meeting were Mr and Mrs Killigrew and various other persons
associated with the care of the applicant. Meg Allot was not present at this
meeting as she had not, by this time, been appointed to conduct the assessment
which led to the New Care Plan. Part of the minutes read as follows:
"There
was a discussion around the current care package for Deborah and how this would
be affected by the reassessment of need carried out by Marion Houlston and
Annette Hanny (CHCC)
to
take into account the manual handling requirements
."
(Emphasis added) (page 39).
As is clear from a passage on the next page of the minutes, it had already
been decided that two carers were needed for specific manual handling tasks.
Although Mr Oudkerk submitted that I ought not to draw conclusions adverse
to the respondent, this passage, it seems clear to me, and as Mr Wolfe
submitted, shows that the reassessment of need was being carried out "to take
account" of the need for two carers to assist in the lifting process. This
view is a view shared by Mr and Mrs Killigrew (see page 15).
On 29th July 1998 the respondent notified Mr and Mrs Killigrew that the
Old Care Plan was to be immediately withdrawn and replaced with a Revised Care
Plan. This Revised Care Plan provided for three and a half hours care a day,
five days a week, and some additional care at the weekend. This Care Plan
envisaged two carers for the times when lifting was necessary. There was no
justification given for reducing from the 12 hours care to three and a half
hours. Understandably the applicant challenged the Care Plan. By a letter
dated 4th August 1998 her solicitor wrote (page 52):
"As
you will know Deborah Killigrew has multiple social and personal needs arising
as a result of her profound health problems. Mrs Killigrew has had multiple
sclerosis since the age of 17. She has been registered blind for the last
seven years and additionally suffers from deep vein thrombosis, a form of
epilepsy, double incontinence and is now unable to weight bear at all. Mrs
Killigrew suffers from sudden uncontrolled jerking movements as a result of the
MS.
The
combination of symptoms from which Mrs Killigrew suffers means that she cannot
be left alone at all."
19.
The application for permission to apply for judicial review came before
Collins J on 24th August 1998. He granted a stay on the implementation of the
proposed revision and an adjournment at the respondent's request to allow the
respondent to undertake a further assessment of the applicant's needs for
community care. During this assessment, carried out by Meg Allot, she was told
by Mr Killigrew that (page 103):
"Tony
provides all care from 8.30pm to 8.30am. This includes lifting Deborah from
chair to wheelchair to bed. He assists with emptying catheter bag, or
assisting with continence pads. If necessary during the night he gets drinks
and food for Deborah. He helps her to move if she is uncomfortable. He will
get help in emergencies.
He
has in the past tried to help the carers with lifting, but feels no longer able
to do this. He does assist her in and out of the car."
20.
In answer to the question:
"Are
you experiencing any difficulties that affect your ability to give support and
when did these difficulties start?"
21. Mr
Killigrew responded:
"As
Deborah's condition and dependency has worsened over the last couple of years,
and as his own physical limitations have increased, Tony is finding caring much
more onerous. He can also see that this situation is going to get worse. He
and Deborah are rowing a lot. Both feel vulnerable and emotionally are unable
to support each other. Tony is frustrated that he cannot help Deborah more."
22.
Following the reassessment, a further Care Plan was produced dated 30th
October 1998. I read the last two pages of that Care Plan signed by Meg Allot:
"Mrs
Killigrew has a combination of very debilitating conditions, primarily multiple
sclerosis, and practically no sight. She also has epilepsy, which is
controlled by drugs. Under the circumstances she is remarkable resilient,
sociable, and determined.
Her
main concerns centre around Mr Killigrew's needs and she too talks of the poor
state of their relationship at present. She talks more of his needs than her
own and is terrified he will leave her. She encourages the agency carers to
provide care for Tony as she feels deeply her own inability to do this. She
also speaks of the imbalance in the relationship and becomes very upset when
they argue. She also talks of suicide if Mr Killigrew left her.
The
care needs for which she has a continuing need for services from Health and
Social Services Department consist of the following:-
Assist
with get up;
Shower/wash, toilet care, teeth etc;
Catheter,
bowel, and skin care with the district nurses;
Preparation,
feeding and clearing of meals;
Some
housework and laundry;
Empty
catheter bag;
Assistance
with personal shopping;
Prepare
for bed.
Some
of this care can be provided at the day centre and should be within the remit
of the centre to provide personal care while Mrs Killigrew is there.
She
also has help to light her cigarettes.
Assistance
with reading instructions etc.
Mrs
Killigrew has other social and companionship needs which are not the direct
responsibility of the Social Services Department which may need to be met in
another way.
Conclusion
and Recommendations
Mrs
Killigrew undoubtedly has considerable care needs, which fall within the remit
of Health and Social Services Department. The move to a purpose built bungalow
with adaptations has relieved much of the pressure felt at the previous property.
It
is apparent from observations and daily recording of the care agency that the
current care arrangements are fulfilling functions that are not the direct
responsibility or with the remit of Social Services Department, and would
certainly not be seen as priority tasks. Very little direct care takes place
between 10.30am and 6.00pm, apart from preparation of lunch and emptying
catheter bag. This time is largely spent keeping Mrs Killigrew company.
The
flexibility which has been requested to allow for unpredictable care needs has
in fact led the carers to undertake tasks which they were not contracted to do,
and are outside the responsibility of the Social Services Department. I am
advised by the District Nurses that proper management of catheter and bowel
care, which is the responsibility of the nurses themselves, should reduce the
incidence of emergencies which have occurred in the past and ensure that Mrs
Killigrew is more comfortable.
In
order to assist and support Mr and Mrs Killigrew to re-establish a balanced
quality of life in their home I would like to suggest the following Care Plan
as a basis for discussion. I believe this should allow them time alone
together as husband and wife, time separately as individuals, and sufficient
support where Social Services Department has a clear and defined remit for
direct care provision and household tasks.
See
attached Alternative Care Arrangements."
23.
This proposed Care Plan provided for six hours care, but did not provide
for help in going to the toilet because at this time the applicant had a
catheter fitted.
24.
Following the removal of the catheter, that plan was revised and thus the
New Care Plan came into existence. The need for the revision is explained at
page 116 as being "in the light of changed circumstances". It states:
"Mrs
Killigrew no longer has a catheter and will either require assistance to use
the toilet, or to change continent wear. Her awareness of the need to use the
toilet has fluctuated over the past two weeks as has her ability to bear
weight. Reports from Helen Ley, Respite Care Home, the District Nurse, the
Continence Advisor and Mr and Mrs Killigrew themselves, has varied widely from
day to day. It has been agreed therefore, following discussion with the
District Nurses, who bear the main responsibility in this area, to agree a Care
Plan which takes account of the "worst case scenario", i.e. Mrs Killigrew will
actually require help of two people at some point during the day for any of the
above reasons."
25.
Although the New Plan was then being put forward as a basis for
discussion, it was adopted by the respondent.
26.
What was needed was a very careful assessment of why, if that was the
case, 12 hours care was no longer needed. The importance of the respondent
satisfying itself that this was the case is obvious. The applicant and her
husband were asking for at least the 12 hours care to continue. Her condition
was inevitably and steadily deteriorating. Not continuing the 12 hours care
could, it was being said, have serious consequences for the applicant, and was
certainly likely to cause deep distress to the applicant (see page 17). The
decision to reduce was made at a time when it had been decided that two carers
were needed for lifting. It was important that the reduction to six hours care
was not driven by the need to have two carers to carry out the task. On the
evidence available before me, the reduction could only be justified if there
was no continuing need for 12 hours care and not simply because two carers were
needed when only one had sufficed earlier.
27.
Do we find that careful assessment in the October Care Plan, in particular
in pages 110 and 111, which I have already read? Making all allowances for the
fact that this is not a legal document and should not be construed as such, I
have no doubt that we do not. There is no proper analysis of why the 12 hour
Care Plan had been originally adopted. What were the perceived advantages of
that plan at the time of its implementation? Why are those perceived
advantages no longer seen as advantages, if such be the case? The author of
the plan, Meg Allot, refers to "the flexibility which has been
requested
to allow for unpredictable care needs" (emphasis added). The use of the word
"requested" shows that the author is not concentrating on the plan in place.
Her argument for dismissing this flexibility is also of note. She writes that
this flexibility "has in fact led carers to undertake tasks which they were not
contracted to do, and are outside the responsibility of social services
department". If, to quote the earlier plan, the 12 hours care was chosen to
help with the tasks of "supervision" and "of appropriate stimulation", it is
likely that in the event (for example) of no emergency, other things will be
done. What is important is not to assess what happens if there is no
emergency, but what will happen if there is an emergency and no one is
supervising her.
28.
As paragraph 4 of the Form 86A reads:
"However,
the important feature of the Old Care Plan was not that it provided support for
particular regular needs (such as meals) but also that it provided support and
security for Deborah Killigrew whenever problems arose and met her personal and
other care needs which arise throughout the day and not at discrete, scheduled
times."
29.
The closest that one gets to that in the Care Plan is the sentence which
starts:
"I
am advised by the District Nurses that proper management of catheter and bowel
care...should reduce the incidence of emergencies which have occurred in the
past....."
30.
By November the catheter was no longer in use. In the Form 86A at
paragraph 1.13, an example is given of what can happen:
"Thus
for example, on Monday 3rd August 1998, Deborah Killigrew's catheter overflowed
and she was left sitting in a pool of urine (which overflowed onto the family's
new settee) until the next scheduled visit by a carer."
31. The
evidence in support of that is at page 16.
32.
Although my decision that there was no proper consideration of why the 12
hours care was no longer appropriate would be sufficient to resolve this case
in favour of applicant, I shall consider other grounds of challenge raised.
33.
Mr Wolfe submits that the New Care Plan is unlawful in that it was
produced without the benefit of up-to-date medical evidence. In particular he
submits it failed to take into account the views of the general practitioners.
In particular he places reliance on paragraphs 3.47 and 3.48 of the guidance
which I have already cited in full.
34.
Meg Allot states in her affidavit (page 228) that she identified at the
outset of her assessment that she ought to discuss the matter with the
applicant's GP. Because the applicant had moved into a new house, she did not
have a GP in her new area. Meg Allot spoke to Dr Pearson, her previous GP, who
told her that he no longer had the applicant's notes and was therefore unable
to give any information. Meg Allot described it as "frustrating not to have
this input" (page 229). When she spoke to the new GP she "did not yet feel she
knew Mrs Killigrew well enough to comment on her care needs, but trusted the
judgment of the district nurses". Mr Oudkerk submits that this is sufficient.
In my it is clearly not. To assess the level of care which the applicant
needed, it was important to have an up-to-date assessment of her medical
condition, particularly any aspects of the medical condition which might
indicate that she ought to be supervised at all times and, if so, what kind of
supervision she would require.
35.
Mr Wolfe draws my attention to the affidavit of the applicant's solicitor,
Miss Jean Gould. Paragraphs 5 and 6 at pages 299 to 300 read:
"The
affidavit of Meg Allot also expresses the view that there is currently an over
provision of care to Mrs Killigrew. There is now produced and shown to me
marked 'JG2' a number of documents produced by the respondent's Social
Services Department during 1996. Although these documents are now out of date,
they do indicate the level of care that was then considered necessary once
Deborah's condition meant that her husband was no longer able to care for her
without support. I am not aware of any intervening factors which would suggest
that the need has diminished in anyway. I can find no suggestion of this in
any of the respondent's evidence. The report for a continuing care assessment
by Gillian Bowyer indicates that 'The present situation is that Debbie's
condition is very unstable, she requires constant supervision for her safety
because of frequent fits', and at the last paragraph 'a higher input of care'
will be needed. The Social Services file notes for the periods 2.4.96 until
18.5.96 to 2.5.96. These notes record the following:-
2.4.96
Telephone
call from Gill Bowyer includes'needs constant supervision'.
12.4.96
observations
of Gill Bowyer include:
36. Mrs
Killigrew has multiple fits;
37. Very
unpredictable in nature. She needs constant attention;
38. Duration
of fits can be quite extended.
18.4.96
39. Telephone
call to Dr Pearson includes the following:
40. Mrs
Killigrew has severe epilepsy;
41. Very
frequent fits, and would be at risk if she was left unattended;
42. There
is need for Mrs Killigrew to have constant (illegible) by a carer/nurse who has
nursing skills and able to manage severe epileptic fits;
43. Needs
assistance in all physical care and feeding;
44. Dr
Pearson mentioned psychological problems due to all the above.
26.4.96
45. Call
to district nurse at 6.00. District nurse feels that Mrs Killigrew needs the
care of skilled nurse to supervise care, untrained nursing assistants to give
continuous daily care - supervised, to prevent Mrs Killigrew from damaging
herself during a fit. Skilled in lifting and handling Mrs Killigrew also to
understand mental health and depression and management.
6.
The situation in 1996 clearly therefore gave rise to the provision of
continuous day time care on the basis of assessed needs. There is no
suggestion in the notes I have seen of any question of over provision. I am
not aware of any change in the pattern of Mrs Killigrew's epilepsy. For
instance the record of patient care kept by the district nursing team of the
North Birmingham Community Health NHS Trust records the following entry at
20.10.98:
'Debbie
had an epileptic fit at 5.40pm, put into the recovery position. She had
epileptic fits in the space of 10 minutes, then fell asleep. She woke up at
6.15pm. I am concerned about the limpness in her right arm, which Debbie
informs me that is very painful, and feels as if she has pins and needles in
her arms. I wanted to contact the doctor, Tony informs me that this is what
happens after she has had an epileptic fit.'"
46.
It appears that Meg Allot did not see this information.
47.
Meg Allot consulted the carers, as she said she was going to do. She,
however, makes no reference to the log records kept by the carers which have
been carefully analysed on behalf of the applicant. Those records reveal,
among other things, the following:
"
21/10/98 '5.40pm Debbie has a fit, put [her] to lay in the recovery
position on living room floor. She had another fit a few minutes later. Both
fits lasted around six minutes. Debbie is now sleeping it off on the living
room floor.'
22/10/98
'...about 6.10pm she had a fit, this lasted for six minutes. We (Tony) placed
her to lie down and placed her [head] on cushions. After the fit was over she
fell asleep. Debbie had another fit at 6.25. Slept for a bit and woke up.'
23/10/98
'Escorted Debbie to day centre. Debbie ate well and had hot chocolate to
drink and pudding. After lunch Debbie claimed to feel sick, a bit dizzy.
Within a few minutes she had a fit. Myself and a carer from the day centre
took her to a quiet room, she had another fit. Both lasting about three
minutes. We lifted Debbie and lay her out onto a large floor mat. Soon after
she had her last fit we lay her in the recovery position. She slept for about
40 minutes. Woke up slightly after 20 minutes, said she felt tired and went
back to sleep. I phone Tony while a carer watched Debbie.....'"
48.
Mr Oudkerk points out that Meg Allot concluded in the New Care Plan:
"She
also has epilepsy which is controlled by drugs." (see also at page 391).
49.
Mr Oudkerk relies on the fact that the minutes of the 10th June meeting do
not reveal Mr and Mrs Killigrew arguing for continuous care on the basis of a
risk of epileptic fits. However, as Mr Wolfe has amply demonstrated, the
respondent's attention had regularly been drawn to her epileptic fits and they
form part of her unpredictable needs. I have already cited a passage from the
letter written by the applicant's solicitors to the respondent on 4th August
1998.
50.
In her affidavit of 14th August 1998, in paragraph 6 at page 11 and
paragraph 14 at page 14, Miss Jean Gould refers to the worsening of the
applicant's condition, that she has a form of epilepsy which results in
extended seizures and "her steady deterioration means that the incident of
fitting has increased".
51.
On 15th April 1998 the Helen Ley Care Centre, which was providing respite
care to the applicant as a person with multiple sclerosis, wrote to the
respondent in the following terms:
"I
enclose a copy of the discharge letter I have sent to Dr Pearson which outlines
the events of Debbie's most recent stay (28 March - 11 April 1998).
During
Debbie's previous stay (16 March - 23 March 1998), Debbie fitted every day and
on three days she fitted twice. Whilst Debbie is fitting she needs to be very
closely monitored and these periods can last for two to three hours. We have
found that Debbie has a sensitivity to rectal Diazepam and can only be given
one dose of 10mgms in 12 hours otherwise her respirations become very shallow.
Mr Killigrew and Debbie assured me that she was taking her medication at home,
but the fact that Debbie fitted every day indicates that she does not always
take her medication to control her epilepsy. On 20 March, Debbie stated that
her husband had stopped her taking her medication for epilepsy as it makes her
drowsy and this annoys him.
When
Debbie is fitting daily, I am unwilling to allow Debbie to go out on any of the
leisure activities. This is for Debbie's own safety. She therefore does not
have the full benefit of respite care."
52.
Mr Oudkerk points to a passage in Meg Allot's affidavit sworn on 17th May
1999 at pages 395 to 396. She was responding to an interrogatory in which the
respondent was being asked whether it was accepted that Mrs Killigrew continued
to have epileptic fits which are unpredictable, can be long in duration, can
put her in danger of injury, including hemorrhaging, and in relation to which
she would need constant supervision. The risk of hemorrhaging was increased due
to the fact that she was on an anti-coagulant drug (see, for example, page
310). Meg Allot answered that she was not given this information during her
assessment. As Mr Wolfe has shown, some of the information was available to
her and other information was information that she could reasonably have been
expected to obtain.
53.
Meg Allot concludes by saying that "social services would not normally
provide carers 'in case' someone had a seizure and 'could not be expected to do
so'". Mr Oudkerk relies on that answer. With all respect to him and Meg
Allot, that, in my judgment, is an overly simplified approach to the problem.
It may be that in preparing a Care Plan the author could reach a conclusion
that given the infrequency of a person's epileptic fits it would not be right
to provide continuous supervision, but before that conclusion can be reached, a
great deal more has to be done by way of examining the condition in which the
person finds himself or herself. Mr Wolfe also submitted that there were other
potential emergencies such as fire which might indicate the need for care by
someone qualified to deal with the applicant in such circumstances.
54.
In my judgment the respondent failed in this New Care Plan to take into
account the medical evidence to which I have referred. Indeed, it seems clear
that in part Meg Allot was quite unaware of it.
55.
In conclusion this New Care Plan must be quashed. Mr Wolfe invited me to
say that no reasonable person could prepare a scheme for this applicant that
did not involve 12 hours continuous care. I cannot accept that submission. I
therefore direct that this matter be referred back to the respondent for
reconsideration of the applicant's care needs.
56.
In conclusion I should say that I am most grateful to the excellent
submissions made both by Mr Oudkerk, on behalf of the respondent, and Mr Wolfe,
on behalf of the applicant.
57. MR
WOLFE: My Lord, I am most grateful. Can I ask your Lordship to consider one
or two other consequential orders? My Lord, page 2 of your Lordship's bundle
is the relief sought within the Form 86A. My Lord has I think dealt with the
declaratory relief and the order of certiorari. Can I invite your Lordship to
consider items 3 and 4 there. In particular, my Lord, the matters obviously to
go back to the respondent. You will have seen, my Lord, that the matter has
been dealt with first by Marion Houlston and latterly by Meg Allot. My Lord
has seen the problems that have arisen with that. My Lord, clearly those
individuals, without wishing to criticise them personally, will come to such a
matter on remission with a frame of mind and a history in their minds. Can I
invite your Lordship to order, as we invite you here to do, that the
reconsideration be by an assessor not previously involved in Mrs Killigrew's
case.
58.
May I also, my Lord, invite your Lordship - this is item 4 in the relief
sought - to continue the order of Collins J pending the lawful reconsideration
and the production of a further Care Plan.
59.
My Lord, I also of course ask for my costs and for legal aid taxation.
MR
JUSTICE HOOPER: Yes.
60. MR
HUTCHINGS: My Lord, if I may take those in turn?
61.
My Lord, I say that mandamus and directions as to how the respondent
should reconsider the matter are not necessary. Clearly they have to consider
----
62. MR
JUSTICE HOOPER: It must be someone fresh.
63. MR
HUTCHINGS: My Lord, I say that if it is right that that is what they are
lawfully required to do, no direction is required from your Lordship. If they
do it in a manner which is not lawful we will be back here again.
64. MR
JUSTICE HOOPER: I do not think we want to start this again.
MR
HUTCHINGS: My Lord, no.
65. MR
JUSTICE HOOPER: I am quite certain they would do it even if I did not order
it, but just for safety's sake I order that the new assessment is to be
carried out by someone who has had no previous contact with this case.
66.
The second thing you wanted was?
67. MR
WOLFE: My Lord, the continuation of the order of Collins J pending a lawful
Care Plan.
68. MR
JUSTICE HOOPER: That does follow automatically because I have quashed the New
Care Plan.
69. MR
WOLFE: My Lord, yes, but I Collins J would have seen his order as an
interlocutory order pending today, so I ask out of an abundance of caution.
70. MR
HUTCHINGS: That is the Care Plan we are left with, my Lord, and it will remain.
71. MR
JUSTICE HOOPER: I do not think you need that. You can come back to me very
quickly if that was not being done.
72.
Costs. You cannot object to costs.
73. MR
HUTCHINGS: On costs I am instructed to make one point, my Lord, which is that
there were four points relied upon by my learned friend at the final hearing.
They were: firstly, there was a reduction of hours to do with the reduction of
needs; secondly, that the plan was produced without up-to-date medical
evidence; thirdly, the lack of consultation; and, fourthly, that the care plan
was perverse.
74.
Your Lordship has accepted some of those arguments, not all of them, but
I say that only the first of those points was relied upon prior to the
substituted Form 86A on 4th February 1999. Prior to that only the first of
those points was relied upon in the original Form 86A, dated 14th August 1998,
and as amended on 23rd November 1998.
75.
So in substance what the respondent says is that the applicant changed her
grounds somewhat during the course of these proceedings.
76. MR
JUSTICE HOOPER: The applicant won on the first one in effect.
77. MR
HUTCHINGS: My Lord, that does take some of the sting out of my position, but
that is the point I am instructed to make.
78. MR
JUSTICE HOOPER: Thank you very much.
79.
No, the applicant will have her costs, to be taxed if not agreed, and,
yes, you can have your certificate.
80. MR
WOLFE: My Lord, I am grateful.
81. MR
JUSTICE HOOPER: Is there anything further?
82. MR
WOLFE: My Lord, nothing from me.
© 1999 Crown Copyright
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