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Holding prisoner in a foreign land

RCJ portrait 146x219The Court of Protection team at 39 Essex Chambers analyse a powerful ruling in a case where it took years for a Colombian woman with a severe brain injury to be repatriated.

In London Borough of Lambeth v MCS & Anor [2018] EWCOP 14; [2018] EWCOP 20 (Newton J)
- a pair of excoriating judgments, one as to substance, one as to cost - Newton J addressed the consequence of "disorganised, muddled and unfocused decision making, and what has at times verged on an arrogance" leading a Colombian woman into "years of misery from being kept a prisoner here, against her will."

On 1 May 2014, whilst waiting at a bus stop, P collapsed and but for the prompt actions of a member of the public who commenced CPR, would likely not have survived. Paramedics arrived, P was found to have suffered a cardiac arrest. She was taken to St Thomas' hospital who diagnosed narrowing of the arteries to the heart; she had emergency bypass surgery the same day. Subsequently P was diagnosed as having sustained hypoxic brain injury as a result of oxygen starvation to the brain when she collapsed. On 1 September 2014 she was transferred to the Royal Hospital for Neurodisability in Putney, where she remained for well over 3 years. She displayed the classic signs of hypoxic injury, that is to say, severe cognitive impairment with memory problems, speech problems and physical difficulties requiring significant care input. Although she lacked capacity to decide upon her future residence, she was "absolutely consistent, and at every opportunity [...] made abundantly clear her wishes to be able to return to Columbia, where she would have the care and support of a large and concerned extended family". Over time, she made significant cognitive improvement such as to allow her to vent her frustration, whether it be with language (she was a Spanish speaker and does not understand English), her impairments, or the care plan provided to her. There was, similarly no question but that it was in her best interests to repatriated to Columbia.

A consistent theme recorded in every document was how very much better P functioned, and was so much happier, when she could communicate in Spanish. On 29 October 2014 P's assessed needs recorded "as detailed in previous sections, a Spanish speaking environment is essential for P's participation, care and wellbeing" and "Spanish staff should be available 24 hours a day with regular attendance for monitoring". However, there was never any formal provision supporting P's need for Spanish speaking staff, which at best was provided on an ad hoc basis. As Newton J noted, "P is distressed by receiving care from people who cannot speak Spanish, this has happened almost every day, several times a day, for over 3 years. It takes very little imagination to consider how additionally miserable and isolated she must have felt. Reports describe her as distressed, feeling like she is drowning, feeling scared, complaining of pain, each impacting severely on her everyday wellbeing."

P was likely to have been ready for discharge in 2014; she was undoubtedly ready by 2 January 2017. She was subject  to DOLS, and her RPR in December 2015 applied on her behalf "out of frustration because, despite the local authority and the Lambeth CCG supporting P's wish and desire to return to Columbia, they had simply failed to progress it." The proceedings were initially met by the response that P now had capacity about decisions about where she should live as Newton J noted, "I am not at all sure that that contention does not in fact make the situation worse". However, a Special Visitor's Report of March 2017 confirmed that she lacked capacity. Matters then progressed very slowly in terms of progressing repatriation; from Newton J's distinctly caustic summary of the procedural history thereafter, we take one example:

"In view of the history, the shocking history, I made provision for a "long stop" hearing on 13 December 2017 whilst sitting on circuit (hoping still to retain the transfer date of 20 December 2017). I do not think I ever received a position statement from the applicants, who attended by new counsel, who had been inadequately instructed. No one from the applicants, CCG or solicitors had the courtesy to attend. To say this was unfortunate (leaving aside any other issues) is an understatement. No transfer plan had been filed, and important missing detail prevented any progress being achieved. No one appeared to be qualified to make what in some instances were trifling decisions involving a few hundred pounds, e.g. innumerable communications occurred over the provision of, cost of, source of, import duty on, or who should pay for the transport of a wheelchair so urgently required by P, far, far exceeding the cost of the chair itself. Information was given to the Court in relation to, for example, the air ambulance, which subsequently appeared to be wholly misleading and totally without foundation. The approach taken was unhelpful and, at times, verging on petulant. Despite my best efforts it appeared to reflect a deeper, most unfortunate perspective that has, from time to time, permeated these proceedings. In any event, as I say, no one had the courtesy to turn up, so nothing constructive could be achieved at all."

Finally, on 15 January 2018, "it was possible to approve a final order. Contrary to previous occasions when either no one attended, or those present had not obtained delegated financial responsibility, on this occasion, what should have occurred much, much earlier, probably years ago, was obtainable, and significant assurances and undertakings were forthcoming for the provision of care in the unlikely event P was taken ill in transit and required hospitalisation en route. All that should have occurred several months earlier and it is entirely symptomatic of the malaise which has beset these proceedings from the outset. For which P has been the unhappy victim, and the Applicant [local authority] entirely responsible." She left the UK by air ambulance on 25 January 2018:

"The move went very well. There were no health concerns en route. P remained calm, restful and slept during the journey. The ambulance crew were extremely impressive and efficient. The doctor  could speak Spanish. Upon arrival P "recognised many of her relatives and smiled all over her face.""

In light of this conclusion, it was not surprising that in the second judgment, Newton J was asked by the Official Solicitor on P's behalf to order that the entirety of the costs of the proceedings should be borne by the London Borough of Lambeth and the Lambeth Clinical Commissioning Group on the basis a) that the proceedings should never have been brought and b) their conduct of the proceedings once commenced.

Newton J noted that:

2. Proceedings brought in the Court of Protection almost never attract an enquiry into the issue of costs, essentially since they are inquisitional in nature, the general costs principles do not sit easily within the parameters of the Court's considerations. However, as the President recognised in Re G [2014] EW COP 5, there will occasionally be cases but there must be good reason before the Court will contemplate departing from the general rule. For example an order for costs was made in Re SW [2017] EW COP 7  where  the  application  was "scarcely coherent.....totally without merit.....misconceived and vexatious". These proceedings would not necessarily be categorised in that way, but what if they were or should have been fundamentally unnecessary, that is to say they should never have been brought? Or what if the conduct of the proceedings been so poor, so incompetent that not only did they take much longer than they should (thus unnecessarily necessitating P remaining for so very much longer in difficult circumstances) and requiring many extra unnecessary hearings? In those circumstances is the Court not able to mark its disapproval by the consideration and award of costs."

He continued:
 
3.   It is obvious that the Court is deeply critical of the manner in which this case was handled both before and after the institution of proceedings. It is further troubling that even within the written submissions are many misconceived assertions or contentions as to fact. The proceedings were instigated by P's RPR in December 2016 because no constructive progress for P was being made. P was unsettled, unable to communicate, frustrated and quite evidently deeply unhappy. A situation which could and should have been avoided. As the chronology in the judgment makes clear, by the end of 2014 or early 2015 at the latest, P was ready for discharge but the enquiries lacked focus or persistence, and whilst I have no doubt that the Applicant and/or Second Respondent believe they worked tirelessly, the bald fact is that they did not. The enquiries were ineffectual, even amateur. Apparent "unexplained difficulties in dealing with the Columbian authorities and organisations" were not subsequently born out. Inexplicably, basic common sense enquiries with the Columbian Embassy had still not occurred many months into the proceedings. As I have found, their efforts were unfocused and superficial. This might be thought to be explained by the apparent novelty of the situation as it presented itself, but what happened during the currency of the proceedings supports the contrary view, that too little intelligent professional focus was brought to bear and bring this most unhappy situation to a conclusion. To submit that the CCG was "throughout commendably assiduous" in seeking the return to Columbia is about as misplaced and offensive a submission as could possibly be contemplated. The judgment records, order after order which was not complied with. Equally, it is submitted "the Applicant and Second Respondent remind the Court of the expressions of satisfaction given by P's family and by the Columbian Government on her behalf". They recognise that the CCG worked tirelessly to repatriate P in exceptional circumstances. It would be unfortunate if those efforts were met with a punitive order for costs. Such a submission is at best misplaced. How much more satisfied would P have been to have been repatriated years earlier, rather than being kept caged in an environment and jurisdiction where she was so obviously unhappy and did not belong.

4.    It should not be thought that I overlook the care that was provided to P, nor, ultimately her successful repatriation, but what is impossible to ignore is the disorganised thinking, planning and management which resulted in her detention here for so very much longer than necessary.

5.    Without hesitation I conclude that the circumstances of this case are so poor and so extreme (both in relation to institution of proceedings and their subsequent conduct) that I should make an order that the costs of the proceedings should be born by the Applicant and Second Respondent."

Comment

Repatriation cases are, in our experience, complex, and most public authorities are unlikely to encounter them often, adding novelty to complexity. But the picture painted by Newton J in this thoroughly depressing case is not just one which has all the hallmarks of a situation being put in the "too difficult to handle box" by too many people, but also one where basic consideration of support needs appears to have gone out of the window.

We would also note - given the passage of the LPS through Parliament - that this is undoubtedly a case where the bringing of a s.21A challenge was the only thing which actually unlocked matters, even if at glacial speed. One rather shudders to think what would have happened had P not been subject to a DoLS, and therefore had the benefit of an RPR - would she still be in 'prison' here?

This article was written by the Court of Protection team at 39 Essex Chambers.