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Judge criticises council for breaching duty of disclosure when making streamlined application for authorisation of deprivation of liberty

A council has been criticised by a Court of Protection judge for breaching the duty of full and frank disclosure when it made an application under the streamlined procedure for authorisation of a deprivation of liberty.

The ruling in JDO, Re (authorisation of deprivation of liberty) [2019] EWCOP 47 concerned JDO, a 24-year-old man who has diagnoses of cerebral palsy, autism, learning disability and epilepsy. His behaviour can be challenging.

Since May JDO has been living and being cared for at a supported living placement. This is a one bedroom flat of which he has exclusive occupation.

JDO’s care arrangements include 8 hours a day of 1:1 support plus 8 additional hours per month of 2:1 support for family contact. He shares waking night staff with the residents of other flats in the block. Latterly, following incidents when police assistance was required, JDO also has 2:1 support when accessing the community.

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Barnet made an application under the streamlined procedure set out in Part 2 of Practice Direction 11A for authorisation of deprivation of liberty in JDO’s living arrangements.

The application was taken out of the streamlined procedure because it was apparent that the living and care arrangements of JDO were contentious. It is now proceeding through the usual court processes for determination of a welfare dispute, with the next substantive hearing listed on 4 November 2019.

The Official Solicitor raised concerns that, in issuing the application under the streamlined procedure, the council demonstrated a serious breach of the duty of full and frank disclosure which is part of that procedure.

There are ongoing proceedings in the Queen’s Bench Division claiming damages for JDO on the basis of clinical negligence. The Official Solicitor acts as JDO’s litigation friend in those proceedings too.

The judgment set out Her Honour Judge Hilder’s conclusions on the Official Solicitor’s concerns about breach of duty.

The judge said: “Turning to the evidence of what actually happened in this case, I do not accept that JDO’s placement, at the time of filing the COPDOL11 application in November 2018, could reasonably have been considered by the Applicant as non-contentious. The Local Authority was clearly aware at least from the best interests meeting in May 2018 that JDO’s case managers and parents had significant concerns about whether the placement was meeting JDO’s needs.

“It was reminded in the Official Solicitor’s letters of May and August, and those concerns were confirmed again by the Official Solicitor in October. If Ms. Malomo [social worker and best interests assessor] really did not expect in November 2018 that this matter would become contentious, her expectations flew in the face of the available information.”

In so far as the council explained its expectation of the application being non-contentious as because it was “a renewal of the existing order,” HHJ Hilder said she did not accept that such approach was either accurate in the circumstances of the case or appropriate generally to the streamlined procedure.

“The authorisation granted in June 2017 had expired (as [the social worker] recognises) so what was being sought was a new authorisation, not a renewal of an existing one. Even if a COPDOL11 application is appropriately made within the review period, the review process is not a rubber-stamping exercise,” the judge said.

“The purpose of the review is to enable a judge to make a fresh determination on up to date information. Authorisation in 2017 does not automatically lead to further authorisation in 2018. The whole purpose of the review is to scrutinise – on a proportionate basis, but scrutinise nonetheless - whether authorisation continues to be appropriate.”

In so far as the parents’ position was concerned, the judge said she was not persuaded by Ms. Malomo’s statement that “There was never any doubt about [OD/the mother]’s competence with regards to being Rule 1.2 representative for her son.”

HHJ Hilder said: “In my judgment, the information available to the Local Authority by November 2018 strongly indicates that there should have been doubt. Having voiced concerns at the best interests meeting, and initially refused to sign any form, if OD showed no disagreement when she met the social worker at the Local Authority offices on 3rd October, such change of position at least called for exploration, of which there is no sign in [the social worker's] statement. It is easy for persons in the position of OD to be overwhelmed by formality and procedures.

“Having listened to OD and DD at the June hearing, in my view this risk should have been apparent to the Applicant. It is incumbent on those charged with the obligation to consult them to consider this risk and take appropriate steps to ensure that genuine views are obtained and reported.”

The judge said it was also not appropriate for the body with consultation obligations to “present” OD (or any person in her position in the proceedings) with a pre-prepared statement.

“The purpose of consulting with OD is to ascertain her views, so that they can be relayed to the court. It is not to put words into her mouth, or to persuade her to adopt the Applicant’s views,” she said, adding that the contrast between the statement ostensibly made by OD and the letter written by DD [the father] as “stark”.

HHJ Hilder said there was “significant distance” between assisting a lay person to write their statement, and presenting them with a pre-prepared document for signing. “The latter approach is highly unlikely to elicit genuine views. In this matter it amounts to a breach of the duty of full and frank disclosure.”

In so far as the Official Solicitor’s position was concerned, such as was described in the COPDOL11 form was “very far from a full and frank account by the Applicant and, in my judgment, knowingly so”.

HHJ Hilder said: “The Local Authority does not deny that it received the Official Solicitor’s letters, and it offers no explanation for why they were not provided to the court as requested. [Counsel for Barnet] accepts that ‘a lot of the initial confusion in this application’ could have been avoided if they were. Including the letters with the application papers would not have been onerous to the Applicant. Its failure to put this information clearly before the court is a breach of its duty of full and frank disclosure.”

The judge said she was satisfied that in fact the council did recognise that the Official Solicitor was an appropriate person to consult about the application in this case – as demonstrated by the fact that Barnet did actually consult her.

“However, having received a response which was not to the Applicant’s liking, the Applicant then failed to put the result of the consultation before the court fully or indeed at all. Such as was included in the COPDOL11 form reflects the Applicant’s position, not the Official Solicitor’s. Thereafter, the Applicant went to extraordinary lengths to seek to avoid the Official Solicitor’s participation in proceedings, including apparently choosing an alternative solicitor for JDO.”

HHJ Hilder noted that in fact the COPDOL11 application never progressed through the streamlined procedure further than issue. “Its removal from the streamlined procedure was most immediately due to the receipt of DD’s letter, and then proactivity on the part of the JDO’s own representatives, but it is also some testament to the robustness of the streamlined procedure itself,” she said.

“However, the period spent working out whether the application had appropriately been made represents a delay in the progress towards final judicial determination. I have no doubt that had the application in November 2018 been made on form COP1 as a disputed welfare issue, it would have been put before the Urgent Business Judge (as is usual procedure at the central registry) and would have been listed for Case Management Conference within something like 28 days of issue. Instead, its first listed hearing was not until 21st March 2019. The very real consequence of the Applicant’s approach was delay and a longer period of unauthorised deprivation of JDO’s liberty.”

The judge said she would consider at the next hearing on 4th November any applications which might arise from her conclusions.

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