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A local authority acted unlawfully when it kept a 21-year-old man with autism and a severe learning disability in care for almost a year rather than permitting him to return to live with his father, a High Court judge has ruled.
In the case of London Borough of Hillingdon v Neary & Anor [2011] EWCH 1377, Mr Justice Peter Jackson said the man, Steven Neary, requires adult supervision and support at all times for his own safety and that of others. He is usually fun to be with, but can become moody and anxious. Steven can lash out at times – “not out in malice but rather in the manner of a small child”, according to the judge. He needs one adult present at all times, and two when he is out of the house.
This supervision was conducted by Steven’s father, Mark, and daytime support carers funded by Hillingdon Council, which the judge said provided extremely high levels of support. In December 2009 Steven was taken into respite care – initially for a few days – when his father was “unwell and felt exhausted”. However, the council subsequently decided to keep him in a support unit amid concerns about his behaviour and his weight gain.
Mr Neary took the local authority to court in May 2010 in a bid to have him returned to the family home. In a judgment in December 2010, Mr Justice Mostyn ruled that Steven should be allowed to live with his father again.
In the latest ruling in relation to the case, published yesterday, Mr Justice Peter Jackson acknowledged that the environment in which local authorities operate in the field of adult care “is not legally coherent and bristles with intricate regulation”.
Two central principles were nonetheless clear, the judge said. “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,” he continued. “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, a specific statutory code exists to provide safeguards.”
The second central principle identified by Mr Justice Peter Jackson concerned 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,” he said. “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.”
Hillingdon argued before the High Court that: it had the right to keep Steven in the support unit; it was in his best interests that it did so; between January and April 2010, it had the consent of Mr Neary and Steven was not deprived of liberty at that time; and in relation to the period from April to December 2010, a series of DOL authorisations that it (as a supervisory body) had granted to itself (as a managing authority) “clothed it with legal entitlement”.
Mr Justice Peter Jackson rejected the council’s arguments, concluding that Steven was deprived of liberty throughout the year. He also rejected Hillingdon’s claim that Mr Neary had given his consent, and found that the authorisations were flawed. Even if they had been valid, the judge said, the authorisations would not have amounted to lawful authority for keeping Steven at the support unit.
The judge said it followed that Hillingdon had no lawful basis for keeping Steven away from his home between 5 January 2010 and 23 December 2010.
“The fact that [the council] believed that it was acting for the best during that year is neither here nor there,” he said. “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.”
The judge applauded Mr Neary for standing up for his son’s interests. Although Steven appeared not to have suffered significant or long-term harm, Mr Justice Peter Jackson said things could easily have turned out differently as the council had planned to send him to a long-term placement outside London. One of the facilities considered would have required Steven to have been sectioned under the Mental Health Act.
“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.”
The judge declared that Hillingdon had unlawfully breached Steven’s right to respect for his family life, contrary to Article 8 of the European Convention on Human Rights.
He said a number of features of the case had collectively persuaded him on this issue, including the fact that Hillingdon had never made any mention in its very full records of Steven’s year in care of the supposition that he should be at home, or the disadvantages of living away from his family “still less an attempt to weigh those disadvantages against the supposed advantages of care elsewhere”. No attempt had been made at the outset to carry out a genuinely balanced best interests assessment, “nor was one attempted subsequently”.
The judge also said that Hillingdon’s approach was calculated to prevent proper scrutiny of the situation it had created; it did not seriously listen to Mr Neary’s opposition. The use of DOL authorisations had not been justified on the information available to the council either.
Mr Justice Peter Jackson went on to conclude that:
- By keeping Steven at the support unit between 5 January 2010 and 14 April 2010, Hillingdon unlawfully deprived him of his liberty, contrary to Article 5(1) of the ECHR.
- By keeping Steven 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.
- 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 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.
The judge said the case raised important practical issues for those working in the adult care field. He highlighted three: (a) the purpose of deprivation of liberty authorisations and of the Court of Protection; (b) decision-making; and (c) the responsibilities of the supervisory body.
On the first issue, the judge said: “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.”
The judge said that using the DOL regime in that way turned 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,” he concluded.
On the second issue, Mr Justice Peter Jackson warned that 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,” he said.
“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.”
The High Court judge concluded that the Neary 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,” he said. “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.”
Turning to the responsibilities of the supervisory body, the judge said the granting of DOL standard authorisations was 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,” he said. “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.”
Mr Justice Peter Jackson separately criticised a media briefing note prepared by Hillingdon prior to a hearing on 20 May 2011 in a bid to counteract adverse publicity it had received. He said this was “a sorry document, full of contentious and inaccurate information, and creating a particularly unfair and negative picture of Steven and his behaviour”. Mr Justice Peter Jackson said the council accepted in hindsight that an error of judgment was made in issuing the note.
The judge said that while his ruling was “necessarily critical” of decisions taken by Hillingdon, even during the year of committed care “some tremendous results were achieved during what was an otherwise unhappy time for all”.
Mr Justice Peter Jackson said things had gone well since Mark’s return to his father’s home, and plans were being finalised for the support he will receive. He expects to approve these plans at a hearing in a few weeks’ time, and so bring an end to the proceedings.
Mr Neary said he felt vindicated after the High Court ruling. “Hopefully people will read this judgment and be prepared to fight for the rights of their kids,” he said. Mr Neary added that he would be looking at how to rebuild a relationship with the local authority.
Hillingdon’s Director of Social Care, Linda Sanders, apologised to him and Steven. "It is clear that there have been times when we have let both of them down,” she said.
Sanders claimed that the council had “to carefully balance what we think is right for an individual with the wider issues such as the safety of the public”
She highlighted comments by the judge that Hillingdon’s staff were genuinely committed to ensuring that the council did the right thing for Steven. In particular, she said, Mr Justice Peter Jackson had suggested that the failings were collective errors of judgement, not the result of individual staff.
Sanders added: "We recognise that we need to improve our processes and that we should have kept Steven's father more involved during the time that we cared for Steven.
"We have already made significant changes relevant to this case and we are reviewing our training for those staff who deal with the complex issues relating to the Mental Capacity Act and Deprivation of Liberty safeguards. We will also carefully consider all of the judge's comments to see if there are any further changes we need to make to improve our processes.”
Commenting on the case, barristers Alex Ruck Keene and Victoria Butler-Cole of 39 Essex Street said the judgment was important on a number of levels. However, they singled out the judge’s conclusions on Article 5(4) as of particular significance for local authorities and PCTs.
“There has been some degree of debate as to the circumstances under which local authorities are required to bring matters before the Court,” they said. “Whilst the (DOL safeguards) Code of Practice includes some guidance at paragraphs 8.7-8.8, as Peter Jackson J noted, they do not answer the question. Nor has there been a replacement for the endorsement of the Official Solicitor’s Practice Note which gave guidance as to the correct applicant under the old inherent jurisdiction (see Official Solicitor: Declaratory Proceedings: Medical and Welfare Decisions for Adults Who Lack Capacity [2006] 2 FLR 373).”
Ruck Keene and Butler-Cole said the judgment strongly suggested that, even in a time of budget constraints, the onus is upon the local authority (or the PCT) to bring deprivation of liberty cases – whether under Schedule A1 or otherwise – before the Court in a timely fashion where there is any doubt as to whether:
- it is in P’s best interests to be where he is;
- whether (if relevant) he is deprived of his liberty; and
- whether that deprivation is proportionate and in his best interests.
“To rely on P to enforce his own rights under Article 5(4) (or even to rely upon the fact that a family member may be in a position to seek to do so) would appear (and in our opinion entirely correctly) to run the very serious risk that those rights amount to nothing,” they said.
Philip Hoult
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The financial difficulties faced by care home provider Southern Cross have hit the front pages. Virginia Cooper and Carlton Sadler look at the implications for local authorities and PCTs.
Local authorities, and PCTs commissioning Continuing Health Care, will need to keep a close eye on developments at Southern Cross. As the Group provides care for in the region of 37,000 residents (approximately 31,000 in the elderly care category) across over 750 care homes, the uncertainty over its continuing trading is likely to impact upon the vast majority (if not all) of local authorities and PCTs. Exposure will be greater in some regions than others but, particularly with out of area placements, there are unlikely to be any commissioning authorities who are completely untouched by the events. For some, the crisis potentially jeopardises the placements of hundreds of vulnerable adults for whom they are responsible.
At present, there is great uncertainty as to how the Group’s financial crisis will be resolved. Much will depend upon the Group’s investors, who have been called to a meeting on 12 July 2011, and the landlords who have been requested to accept a 30% rent reduction over the next four months. However, even this reduction, if accepted, may be insufficient to see the Group survive another quarter. The same could be true of the reported 3000 job cuts which it is proposing by October.
There are reports in the press of the possibility of a Government bail out, but if this is not forthcoming the main insolvency options for the Group are as follows:
Administration
This is a procedure where a company may be rescued or reorganised or its assets realised under the protection of a statutory moratorium preventing action being taken against it. This may result in the business continuing but in a restructured format (such as with the loss of a number of ‘loss-making’ homes) and under new ownership.
Administrative Receivership
This is not an insolvency proceeding in the strict sense but rather a remedy for a secured creditor to allow for the realisation of a company asset subject to security, such as property.
Company Voluntary Arrangement
This is where a company and its creditors come to an agreement, usually involving a suspension of payment or a reduced payment, which is implemented and supervised by an insolvency practitioner and binds all creditors.
Liquidation
This is an alternative to the rescue mechanisms where a company is wound up. This involves the appointment of a liquidator who collects in and distributes the company’s assets and dissolves the company.
Whatever steps are taken, there will be a number of commissioning and contractual issues which will arise.
Commissioning issues
Latest reports suggest the Group may ‘shed’ in the region of 180 of its homes. It appears that any such reduction would be achieved by either the closure of some homes (30 is the reported number), or, in the majority of cases, transfer to alternative providers. In some cases, the landlords such as Four Seasons and Bondcare are care providers who may be willing to take over the running of the homes. In many other cases, new providers may need to be found or residents may need to be transferred to other Southern Cross homes. Whilst this is a national problem, the practical ramifications and solutions will vary depending upon local issues.
Local authorities and PCTs need to have contingency plans in place. Commissioners should:
- scope the potential scale of risk by clarifying the numbers of placements they have with Southern Cross homes whether locally or out of area
- develop contingency plans to respond to the potential closure of Southern Cross homes in their areas
- liaise with host authorities for any out of area placements regarding their contingency plans for the ongoing provision of care to residents in any ‘at risk’ homes
- review the availability of suitable alternative placements in the local economy
- consider their response to any proposals to transfer residents to other Southern Cross homes or new providers, this may include putting in place arrangements to consult with the residents and/or their families in relation to Human Rights issues *
- consider how they will want staffing issues to be dealt with by the new providers – are they to be required to take on the placements together with the staff employed on a TUPE basis? What are the costs implications of that? Are there industrial relations implications if an alternative approach is adopted?
- satisfy themselves that they are happy with any suggested new providers. This will include ensuring they have appropriate registration with the Care Quality Commission (CQC) in place
- managing press and public relations around these issues.
In the event that there is insufficient capacity in terms of alternative placements, commissioners may be able to take on responsibility for running the homes themselves. In such instances, local authorities would need to consider:
- renegotiating the lease or an assignment of the existing lease
- employment issues – in particular the application of TUPE and the important consultative obligations associated with that as well as the cost implications both in terms of possible redundancies and pensions issues
- possible joint working arrangements with the local health commissioners
- the need for appropriate registration with CQC.
Contractual issues
Commissioners will need to review existing contracts to understand their contractual obligations in the light of any insolvency arrangements. Factors commissioning authorities might consider, for instance, in the event of an administration include:
- their potential entitlement to terminate existing agreements
- their options where the administrators refuse to perform Southern Cross’ obligations under any contracts or the contracts of others that impact on Southern Cross’ service
- any express provisions in contracts with Southern Cross which may entitle them to withhold payment following administrationwhether it is necessary to make any payments in advance and if so the basis on which such payments should be made.
* In relation to local authority funded residents, Southern Cross has its own duties under the Human Rights Act
Virginia Cooper is a partner and Carlton Sadler is an associate at Bevan Brittan. Virginia can be contacted at
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Reforms to adult social care suggested earlier this month by the Law Commission will be included in a white paper by the end of the year, the government has said.
The Department of Health said the government recognised the need for reform after a coalition of organisations concerned with social care wrote to the three main party leaders to urge action.
Their letter, reported in the Daily Telegraph, said: “The reform of funding for older people's long-term care and for younger people with disabilities remains one of the most difficult and challenging policy issues confronting England.
“For over a decade, governments of all colours have struggled to agree an answer.
“But delay is no longer an option. As a number of recent reports have highlighted, the increased pressure on public finances is pushing an already over-burdened system to breaking point.
“And without further integration between health and social care services this picture could worsen. It is frail, older people who will suffer unless the issue is resolved.”
Signatory organisations included Bupa Care Services, the Local Government Association, Age UK and the Joseph Rowntree Foundation.
A DH spokesperson said: “The coalition government recognises the urgent need to reform the social care system - an aging population and rising expectations make the current system completely unsustainable.
“That is why the government acted quickly to establish the Commission on Funding of Care and Support, to make recommendations by July on how best to fund social care in future.
“We will bring together their findings with those of the Law Commission in a White Paper by the end of the year, to put in place a lasting and fair settlement for social care.”
The commission’s proposals included a new statute that would set out a single, clear duty to assess a person, with a low qualifying threshold for an assessment, but with a provision that a council could have discharged its duty if a person refused to accept an assessment, unless safeguarding issues arose.
The new statute would specify that an assessment must focus on the person’s care and support needs and the outcomes they wish to achieve.”
Age UK's charity director Michelle Mitchell said: “The current care system is in crisis. None of us want to live in a society where older people have to struggle on alone, isolated, scared and vulnerable for the last years of their lives.”
A copy of the Law Commission's proposals is available at the following link: http://www.justice.gov.uk/lawcommission/docs/lc326_Adult_Social_Care_Report_Summary.pdf
See also:
Making adult care law fit for the future
The Law Commission has published its final report on reforming adult social care law. Tim Spencer-Lane, one of the lawyers working on the project, outlines some of the key proposals.
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The Care Quality Commission (CQC) is to launch random inspections of hospitals that cater for adults with learning disabilities, following a BBC Panorama programme last night that exposed serious abuses.
Panorama showed “appalling standards of care” the commission said, at Winterbourne View, a private hospital for people with learning disabilities near Bristol, owned by care firm Castlebeck.
The commission said it would launch a programme of risk-based and random unannounced inspections of a sample of the 150 hospitals providing care for people with learning disabilities.
Care services minister Paul Burstow said: “People deserve to receive safe and effective care. That's what we expect from every care provider.
“I have confirmed with CQC that they should undertake a series of unannounced inspections of services for people with learning disabilities.
“These unannounced inspections into care for people with learning disabilities will help inform future policy and focus attention on the 7/24 care obligation all providers have.”
The commission has admitted that it failed to act quickly enough on disclosures by whistleblowers last autumn. “We recognise that there were indications of problems at this hospital which should have led to us taking action sooner,” it said in a statement. “We apologise to those who have been let down by our failure to act more swiftly to address the appalling treatment that people at this hospital were subjected to.”
It has launched a review of its own actions relating to Winterbourne View, and another review of all Castlebeck’s facilities.
The CQC said was contacted by a former member of staff on 6 December, having already been advised of whistleblowing concerns by South Gloucestershire Council at the end of November. It said South Gloucestershire set up a safeguarding meeting “to look at these issues which, though concerning, were not as detailed or specific as the information revealed by Panorama”.
The commission assumed the concerns were being examined but found the safeguarding meeting did not take place until February.
“We recognise that had we contacted the whistleblower ourselves directly after we received the email we would have been alerted to the seriousness of the situation and moved swiftly to inspect the hospital,” it said.
Lee Reed, Castlebeck’s chief executive officer, said: “I was shocked, disgusted and ashamed by what I saw on Panorama tonight.
“Having spent my entire career in health and social care, I intend to leave no stone unturned to ensure that this type of horrific event is never allowed to happen again.
“I have been chief executive since January, and my priority is the patients under our care. My job now is to ensure that this company moves forward from this appalling episode to having among the best, if not the very best, standards in the provision of care for some of the most vulnerable people in society”.
Meanwhile Avon and Somerset Police have said that four people have been arrested and released on police bail in connection with the allegations.