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26.Jan.2012

A Court of Protection case that looked at whether an elderly woman had the capacity to go on holiday with her partner hit the headlines this month. Alex Ruck Keene, Victoria Butler-Cole, Josephine Norris and Neil Allen look at the judge’s decision.

The case of Cardiff Council v Peggy Ross (2011) COP 28/10/11 concerned an 82 year old woman with a diagnosis of dementia, who had decided with her partner of 20 years to go on a cruise ship holiday, something they had both done together on many previous occasions. Mrs Ross had moved to a care home a few months before the planned cruise following medical problems, but spent weekends with her partner Mr Davies at his home.

The local authority formed the view that Mrs Ross lacked capacity to decide to go on the cruise, and that it was not in her best interests. The critical issue from the local authority’s perspective was that Mrs Ross was not able to appreciate the potential risks to her wellbeing of going on the cruise.

The court was required to make a decision at short notice and without oral evidence from expert witnesses on capacity. However, the judge felt that the decision in question was fairly straightforward – “It is a choice of whether to go on holiday or not, in familiar circumstances, with one’s companion of the past two decades” – and that despite the views of the social worker and a psychiatrist who had assessed Mrs Ross that she lacked capacity, there was insufficient evidence to rebut the presumption in favour of capacity.

The judge went on to hold that even if Mrs Ross lacked capacity, it was not contrary to her best interests to go on the holiday. The judge felt that the Council’s approach to the best interests decision was too risk averse and failed to take proper account of the potential benefits to Mrs Ross: it “smacked of saying that her best interests were best served by taking every precaution to avoid any possible danger without carrying out the balancing exercise of considering the benefit to Mrs Ross of what, sadly, may be her last opportunity to enjoy such a holiday with Mr Davies. This led, in my view, to trying to find reasons why Mrs Ross should not go on this holiday rather than finding reasons why she should.”

The judge was satisfied that Mr Davies would be able to care for Mrs Ross, as he did when she stayed with him at weekends, and was strongly influenced by the fact that this was likely to be her last cruise ship holiday.

The Council had put in place a DOLS authorisation to prevent Mrs Ross going on the holiday, and had then made an application to the court very shortly before the cruise was due to start. Although the issue was not fully argued or decided, the judge indicated that this was not the correct procedural route, and that an application should have been made to the court rather than the use of the DOLS regime.

Comment

This case provides another example of a tendency among local authorities to focus on risk prevention at the expense of emotional wellbeing. The opposite approach is often taken by the court, particularly in cases involving elderly people, who, even though they may have impaired capacity, would rather take the riskier option for care, residence or holidaying, rather than losing their remaining autonomy. It may be that judgments of this sort will persuade statutory bodies to take a broader view of best interests and to give proper weight to the wishes and feelings of the individual concerned, and to the need to promote emotional wellbeing as well as physical safety.

Alex Ruck Keene, Victoria Butler-Cole, Josephine Norris and Neil Allen are members of 39 Essex’s Court of Protection team.

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18.Jan.2012

The Health and Safety Executive has issued a reminder to social care organisations of their duty to have proper management systems in place to control the risk of violence and aggression against their employees and agency workers.

The call was made after social care organisation Dimensions (UK) Ltd was fined £14,000 and ordered to pay £30,000 in costs for exposing workers to this risk.

A support worker at Dimensions (UK) Ltd, a not-for-profit organisation providing support services for people with learning disabilities, was kicked in the eye by a client on 31 December 2009.

An HSE investigation subsequently found that – between March 2009 and December 2010 – the organisation did not have adequate processes in place to control the risk presented by the particular client.

The HSE told Newcastle Magistrates' Court that over that time, the client posed an ongoing risk of violence and aggression. This had resulted in a number of occasions when staff were injured.

Dimensions (UK) Ltd pleaded guilty to breaching Section 2(1) and Section 3(1) of the Health and Safety at Work etc Act 1974, in relation to their employees and agency workers.

HSE Inspector Carol Forster, said: "The risk of violence and aggression from clients with challenging behaviour is common in the social care sector. Workers can suffer not only physical injury but also psychological effects such as stress and anxiety, which can also affect their family and social life.

"Social care organisations have a duty to ensure that proper management systems are in place to control the risk of violence and aggression to the lowest level possible.”

Forster said Dimensions (UK) Ltd should have identified the triggers that led to the client displaying aggressive behaviour. Measures should then have been put in place to avoid them.

The HSE Inspector added that the organisation should also have ensured that staff understood the activities and environments appropriate for the client, to reduce the risk of violent behaviour being triggered. “Finally, they should have acted on incidents and near misses which indicated an escalating risk," she said.

According to provisional figures from the regulator, there were 2,348 injuries to workers in non-residential social care in 2010/11.

Information about risk management in health and social care is available on the HSE website here.

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17.Jan.2012

The Local Government Association has issued transition guidance on public health workforce matters, setting out the legal basis on which transfers will take place.

The transition guidance – developed with the assistance of councils and regional employers as well as the Department of Health and NHS employment experts – has been designed to build on the public health HR concordat, which set out general principles for dealing with staff issues. Discussions have also taken place with unions.

The LGA said the transition guidance was not intended to be prescriptive or exhaustive. “It describes the legal basis on which any transfers will take place and sets out a framework of options and good practice that all involved in the discussions believe will lead to a clear and fair process,” the Association said.

“The central plank of the guidance is that future and current employers should set up local joint consultative groups working with the trade unions as soon as possible, if they have not already done so, in order to develop a joint understanding of responsibilities and action plans.”

The guidance also points out that staff identified as working in the public health functions that will transfer to local government on a statutory basis under the Health and Social Care Bill 2011 will do so on a TUPE or TUPE-like basis under COSOP. No staff should transfer in advance of 1 April 2013, the date that the statutory responsibilities transfer.

The LGA admitted that some issues were still subject to discussion. These included:

• dealing with staff pensions
• options for bringing staff into closer engagement with their new employers during 2012-13, prior to the full transfer
• treatment of individuals close to retirement in the NHS, or close to the expiry of a fixed-term contract
• the appropriate involvement of NHS trade union officials in local and national discussions post 1 April 2013

Further information on these subjects will be issued as soon as possible, the LGA said.

Sir Merrick Cockell, Chairman of the Local Government Association, said: "It is absolutely vital that staff transferring to local government are treated fairly and consistently and that the process is carried out as smoothly as possible to ensure that a strong public health profession is developed for the future.

"Staff need to know that they are welcome and also be given a clear sense of their new working environment, otherwise service continuity and improvement will be much more difficult.”

Sir Merrick said the guidance would help councils “get to grips” with planning the transiction. “It provides helpful information and direction to councils while recognising the important principle that most key decisions are rightly the responsibility of the new employer,” he said.

A copy of the guidance can be downloaded here.

The LGA and the Department of Health will publish a further transition guide later this month, aimed at supporting primary care trusts and local authorities. Frequently asked question material will also be produced for affected staff.

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16.Jan.2012

A local authority is facing judicial review proceedings over its plans to shut down sheltered housing complexes, it has been reported.

The Daily Gazette said residents hoped to stop Colchester Borough Council’s sale of Joyce Brooks House and Abbeygate House.

The local authority wants to use the funds released from the sale – estimated at £1.6m – to refurbish other sheltered housing complexes.

Bobby Hunt, one of the residents at Joyce Brooks House, told the Gazette: “It is always a sad day when elderly and disabled people have to ask a judge to consider whether the people they elected have failed to consider their needs.”

Hunt said the residents’ preference was not to have to move. If this is not possible, they want the council to find them accommodation allowing them move together.

A petition with 4,146 signatures protesting about the sales was recently handed to Colchester’s Mayor.

Cllr Tim Young, councillor responsible for housing, told the Gazette that the council had been “half expecting” the judicial review.

“However, I don’t think it affects the decision we made and we feel confident it will not come to anything,” he said, adding that the decision would stand and the council would continue to market the homes.

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09.Jan.2012

A High Court judge has strongly criticised the complexity of the law governing the fundamental rights and welfare of incapacitated people, describing the situation as a “truly unhappy state of affairs”.

In C v Blackburn & Darwen Borough Council and Ors [2011] EWHC 3321 (COP), Mr Justice Peter Jackson said: “As this case shows, its intricacies challenge the understanding of professionals working in the field and are completely inaccessible to those for whose benefit the legislation has been devised, including those with a relatively high level of understanding, such as Mr C.”

The case involved a single man aged 45 (Mr C) who lacked capacity to litigate or make decisions about where he should live.

An application had been made on his behalf under s. 21A Mental Capacity Act 2005 for the discharge of a standard authorisation under the MCA Deprivation of Liberty Safeguards.

The authorisation had been sought by the managers of Mr C’s care home and granted by the local authority as the supervisory body.

The application for discharge raised the question of whether Mr C was being deprived of his liberty and, if he was, whether that was necessary. The proceedings also raised a wider question about the jurisdiction of the Court of Protection in relation to someone who, like Mr C, was subject to a guardianship order under s. 7 of the Mental Health Act 1983.

The judge ruled that there had not been a deprivation of liberty in the case.

Click here to read a review of the case by the Court of Protection team at 39 Essex Street.

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09.Jan.2012

In the aftermath of the Court of Appeal's ruling in the landmark Cheshire West case, are the courts taking the wrong approach to deprivations of liberty? The team at 39 Essex Street looks at the issues raised in a recent Court of Protection case.

The case of C v Blackburn with Darwen Borough Council [2011] EWHC 3321 (COP) concerned a 45-year-old man with an acquired brain injury who suffered from mental health problems as well as lacking capacity to make decisions about his residence. He was the subject of a guardianship order under s.7 MHA 1983, and was also the subject of a standard authorisation.

Mr C was required by the local authority (as guardian) to reside at a care home, which had locked doors. He was subject to 1:1 supervision inside and outside the home, including when on trips to his family (this at their request). If Mr C tried to leave the home unescorted, he would be distracted, but restraint was apparently not used. Mr C gave oral evidence at the hearing and said that he was stressed by the guardianship and DOLS regimes and wanted both the order and the authorisation lifted. He did not like the care home or his fellow residents and wanted to live somewhere else.

The judge found that Mr C was not ineligible to be deprived of his liberty under Schedule A1, notwithstanding the guardianship order.

However, he found on the facts that Mr C was not deprived of his liberty, saying: “I accept that Mr C is acutely anxious about the restraints upon him, being more aware of his predicament than the subjects of previous reported cases. On the other hand, the restraints upon him within and outside the care home are relatively lighter. The existence of locked doors and a requirement of supervision are not in themselves a deprivation of liberty, where their purpose is to protect a resident from the consequence of an epileptic fit, or harm caused by a lack of awareness of risk, or from self-harm. The limit on the number of outings as a consequence of staffing levels does not tip the balance, when Mr C in fact has quite regular access to the community and to his family.”

The judge relied on the decision of the Court of Appeal in the Chester West case, noting that “in the present case Mr C undoubtedly wants to live somewhere else, but this is a reflection of his unhappiness with the care home. He would like to be able to live an unconfined life in the community, but this is not realistically possible due to the extent of his difficulties. I distinguish his situation from those where a person has been removed from a home that is still realistically available.” The judge did not accept that a proposed rehabilitation placement, identified by the independent social worker who had been instructed in the proceedings, counted as an option that was actually available. The independent social worker had concluded that the present arrangement was not in Mr C’s best interests and that his care plan and place of residence should change.

The judge also considered whether the guardianship order would have been sufficient to authorise a deprivation of liberty, if the same had existed. He found that it did not, relying on paragraph 13.16 of the MCA Code of Practice,[1] and saying that guardianship does not include the power to prevent a person from leaving their place of residence.

The judge also interpreted the decision of Charles J in GJ v The Foundation Trust and others [2009] EWHC (Fam) 2972 as meaning that the MHA has primacy over the MCA as a general principle, not just in the specific circumstances with which GJ was concerned. He said “there are good reasons why the provisions of the MHA should prevail where they apply. It is a self-contained system with inbuilt checks and balances and it is well understood by professionals working in the field. It is cheaper than the Court of Protection.” However, where a guardianship order is not working, because the subject of the order disagrees with the requirements imposed by the guardian, it would be appropriate for that dispute to be determined by the Court of Protection (assuming the person lacks capacity). But, the Court of Protection could not do so while the guardianship order was in place because it would have no jurisdiction, by virtue of s.8 MHA 1983. The judge envisaged that in such cases, the guardianship order should be discharged, so that the Court of Protection could determine the fundamental ‘best interests’ dispute.

Comment

This case is of interest from a number of angles. First, it appears to the authors, that as feared, the Court of Appeal’s decision in Chester West has led to the wrong approach being taken to the question of whether there is a deprivation of liberty. It is somewhat surprising to the authors that a person who objects to living in a care home, but who is required to live there against his wishes, is not being deprived of his liberty. The fact that Mr C could go on frequent outings, and the possibility that 1:1 supervision may have been required in any setting due to his care needs, [2] do not seem to alter the fundamental reality of Mr C’s position.The judge’s decision appears to have turned on the fact that there was no ‘actual’ alternative placement available to Mr C. The danger of this approach is that where, as here, the local authority has not investigated or put forward any alternative placement (because they believe that the present placement is best), someone in Mr C’s position has no meaningful way of presenting an alternative option to the court. [3] Mr C’s lack of capacity and lack of ability to control and manage his own affairs effectively works against him by preventing him from accessing the safeguards of the DOLS regime.

It seems to the authors that Mr C was deprived of his liberty, albeit that the deprivation of liberty may have been proportionate and in his best interests given the (possible) lack of a better alternative – and that Mr C may have been deprived of his liberty in any placement, because resistance to care was said to be an intrinsic part of his condition.

Although Mr C was stressed by the DOLS authorisation, without its protection, how is he to require the local authority to continue to monitor his placement, and to consider alternatives? The guardianship order had been renewed despite his opposition to the placement, and there was thus no incentive for the local authority to think creatively about alternative placements such as the one recommended by the independent social worker. Although the MHA may well have the advantages identified by the judge, it appears that in Mr C’s case, it had not worked to promote a comprehensive review of his situation or the identification of alternative arrangements for his care and residence which may have been more acceptable to him. [4]

The judgment is also of interest for its conclusion that a guardianship order cannot also authorise a deprivation of liberty. Although the Code of Practice asserts this to be the case, there are a number of commentators (and other judges) who take a different view. The issue does not appear to have been argued fully, and no detailed reasons for the judge’s conclusion are given. No doubt it will be raised again in the future, as this part of the judgment was obiter.

Finally, we note that there appears to be a difference of opinion between the court and the Department of Health as to whether the analysis of Charles J in the GJ case should be read as laying down a general principle of the primacy of the MHA over the MCA, or whether that principle was tied to the ‘Case E’ scenario under Schedule 1A. In the case of DN v Northumberland Tyne and Wear NHS Foundation Trust [2011] UKUT 327 (AAC), a letter from the DH to the court was reproduced, which stated that “it was specifically in the context of the interpretation of Case E that Mr Justice Charles talked in J about the MHA having “primacy”. Outside that context, the Department does not understand him to have been making a more general statement about the relationship between the two Acts. Indeed, as set out above, the Department does not think it would actually be possible to say, in general, which has primacy over the other.” Yet further complication in what Mr Justice Peter Jackson observed in this case to be a complex and inaccessible area of law.

This article was written by the Court of Protection team at 39 Essex Street. To receive its regular newsletter, email This email address is being protected from spambots. You need JavaScript enabled to view it..

Notes

[1] 13.16 Guardianship gives someone (usually a local authority social services department) the exclusive right to decide where a person should live – but in doing this they cannot deprive the person of their liberty. The guardian can also require the person to attend for treatment, work, training or education at specific times and places, and they can demand that a doctor, approved social worker or another relevant person have access to the person wherever they live. Guardianship can apply whether or not the person has the capacity to make decisions about care and treatment. It does not give anyone the right to treat the person without their permission or to consent to treatment on their behalf.

[2] Which was said in Chester West to be a ‘relevant’ factor, not a determinative one (paragraph 102 per Munby LJ).

[3] It is also interesting to ask why the absence of an actual alternative is relevant in the first place – imagine a homeless person who is detained under s.3 MHA 1983, or a person whose home is repossessed while they are serving a prison sentence.

[4] See the latest posts by Lucy Series here for a comprehensive comparison of guardianship and DOLS and their respective advantages and disadvantages.