| SPOTLIGHT |
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:
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:
“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
