SPOTLIGHT
Shelved 400px

What now for deprivations of liberty?

What will the effect of the postponement of the Liberty Protections Safeguards be on local authorities? Local Government Lawyer asked 50 adult social care lawyers for their views on the potential consequences.

Court of Protection judge slams council for depriving autistic woman of her liberty

A judge has accused a county council of “a systemic failure” in a strongly-worded ruling in which he found the authority to have wrongfully deprived a 19-year-old autistic woman of her liberty and breached her human rights.

In Somerset v MK (Deprivation of Liberty: Best Interests Decisions: Conduct of a Local Authority) [2014] EWCOP B25 His Honour Judge Nicholas Marston said the issues highlighted at Somerset County Council could only be put right with a system-wide effort.

The woman, P, has severe learning disabilities and autism spectrum disorder. She has almost no verbal capacity and communicates through gestures and PECS.

Social services had prevented P from returning to the family home in May 2013 after bruises to her chest were reported and a consultant paediatrician had conducted an examination.

The judge said that information about P’s violent behaviour – including hitting herself in the sternum, knocking over members of staff and falling to the floor with them – on a school trip a few days before (21 May) would have been easily discoverable by social workers if they had carried out a proper investigation.

Instead at a strategy meeting on 5 June 2013 as a result of conclusions in the medical report it was said to be “highly likely that P has received a significant injury from someone or something other than herself….” It was therefore decided that she should not be returned to her mother.

P subsequently stayed in a respite facility for six months and was sedated with medication without her parents being consulted beforehand. Somerset then moved her to an assessment and treatment unit after accepting that the respite placement was unsuitable.

The family, which only had restricted access to P throughout this time, had continually called for her to be returned to them.

In a position statement issued in April 2014 ahead of the Court of Protection hearing, Somerset conceded that P had been deprived of her liberty and that there was a period where that deprivation was unlawful. It also conceded that P’s right to a private and family life had been breached.

The council sought to argue that if a lawful process had been followed it was likely that P would have remained away from home while the authority pursued its concerns over safeguarding (the bruising issue) and in due course of time P would have moved to a residential home (as Somerset suggested should be the correct course at the CoP hearing).

HHJ Marston said there was “no question” that P had been removed unlawfully from her family. He accepted that the council had a duty to investigate the bruising but found that “a competently conducted investigation would have swiftly come to the conclusion that no or no sufficient evidence existed to be able to conclude P’s safety was at risk by returning her home”.

This conclusion should have been reached within a week or so after the family asked for her back, the judge said.

If Somerset had come to a different conclusion, as it did, then it should have applied to the Court of Protection by early June 2013 for a hearing, HHJ Marston said. Not doing so was a further breach.

Having not done so, the authority should have told the family they could make an application. Not doing so was a further breach, the judge said. After a police investigation ended in September 2013 P should have been returned but was not nor was an application made to the Court as it should have been.

“The limitations and conditions placed on contact between the family and P constitute another breach,” HHJ Marston added.

The local authority sought to rely on a Deprivation of Liberty urgent authorisation it obtained on 28 November 2013 to close off the period of unlawful deprivation of liberty. But HHJ Marston ruled that the breach of P’s Article 8 rights continued until the hearing.

“These findings illustrate a blatant disregard of the process of the MCA [Mental Capacity Act] and a failure to respect the rights of both P and her family under the ECHR [European Convention on Human Rights],” the judge said.

“In fact it seems to me that it is worse than that, because here the workers on the ground did not just disregard the process of the MCA they did not know what the process was and no one higher up the structure seems to have advised them correctly about it.”

In relation to the authority's conduct, HHJ Marson cited an overall summing up by a senior social work manager, who said: "There has been a corporate failure and a failure of those on the ground to realise that they are out of their depth, most worrying was that they looked more sure about what they were doing than they ought, … it's going to be difficult to re-establish that trust (with the family) if it’s rebuilt it is going to be with good practice”."

The judge also highlighted comments by Mr Justice Ryder (as he then was) in a leading authority on FII (fabrication or induced illness) cautioning social workers in child care cases not to decide what the picture was and then make the facts fit the picture, “it seems to me that is what happened here”.

HHJ Marston rejected the local authority’s view that P would best reach her full potential in terms of her development, social life, communication skills and so on in a specialist home.

“It seems to me that the balance comes down decisively in favour of a return home,” he said. “I do not undervalue P reaching her full potential but with a careful support plan, activities outside the household and an independent agency as suggested to advise and mediate I think many of the benefits of the LA case can be accessed from home, in other words it is possible with goodwill and co-operation to have the best of both proposals.”

The judge said the family and the authority should sit down and discuss that proposal and a structured return.

He added that although he had been very critical of the council in the judgement he wanted the authority and the family to rebuild their relationship for the benefit of P.

A spokesman for Somerset said: “We accept Judge Marston’s ruling and comments. We were completely motivated by serious concern for the young lady’s welfare.

“We have apologised to the family for the distress that our actions caused and are working closely with them to provide the right care and support for their daughter now and in the future. We have also taken urgent steps to ensure that all Adult Social Care staff learn from this case and this situation never arises again.”

Law firm Irwin Mitchell – which acted as P’s litigation friend, instructed by the Official Solicitor, and will pursue a damages claim on her behalf – argued that the case demonstrated the importance of ensuring all staff working within local authorities are given sufficient guidance and training about the MCA.

Polly Sweeney of Irwin Mitchell said: “This is sadly another example of local authorities believing that their safeguarding powers can override their duties under the Mental Capacity Act and the requirement that there is lawful authorisation in place for their actions, however well intended. It is deeply concerning that cases such as this are still being seen before the courts. 

“Although we are pleased that the court found that it was in P’s best interests to return home, this case has had a devastating and profound impact upon this family that will continue to live with them for some time.”

She added: “The council must now work to reassure the family and general public that it will act in accordance with the law when considering the best interests of incapacitated people within Somerset and that increased training has been given to those in social services on how to act in accordance with the MCA to prevent any other family from going through a similar ordeal.”