England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL

		Royal Courts of Justice Strand London WC2 Wednesday, 7th November 2001

1. LORD JUSTICE BROOKE: This is a renewed application for permission to appeal from a judgment of Mr David Pannick QC, sitting as a Deputy High Court Judge in the Administrative Court, on 6th September 2001 in which he dismissed a challenge to a decision by the Lincolnshire Health Authority on 30th November 2000 to cease to provide long stay care for the applicant at Long Leys Court, a purpose built complex of five bungalows and communal facilities for severely disturbed adults. The decision was to have come into effect on 3rd September 2001 or as soon after that date as was practicable.
2. The applicant is a 35 year old woman with severe learning difficulties. Long Leys Court is owned and managed by the Lincolnshire Health Authority and is staffed jointly by the health authority and the Lincolnshire County Council Social Services. This has been her home since February 1990. She is microcephallic. She has spasticity in her lower limbs. She is autistic. She has very limited verbal skills and communicates through the makaton system. Her mental age is said to be about 4 years. The proposal of the Lincolnshire Health Authority was that she and 14 other long term patients of Long Leys Court should live in the community. Their plan was to use those premises as an assessment training centre.
3. So far as the history leading up to the decision is concerned, the health authority published a Joint Investment Plan for Learning Disability Services in Lincolnshire in June 2000. There was a meeting on 12th June to discuss a move of the applicant to an address in Metheringham. In August 2000 the health authority published a consultation paper with a return date of 13th October concerning the future use of Long Leys and the resettlement of the residents. During the process the applicant's parents pointed out that she and other residents of Long Leys had been promised a home for life at that place. When the health authority met on 26th October they deferred a decision in the matter in order that they could consider the point made about the applicant and others having been promised a home for life. They took legal advice from reputable solicitors which became available on 17th November, and on 30th November they took the decision under challenge.
4. The deputy judge explained that the thinking behind the plan had been set out in part in the evidence of the consultant psychiatrist for the Lincolnshire Health Care NHS Trust. He believed that a number of the residents of Long Leys were able to live in the community and did not require NHS in-patient care when he set about considering these issues. But he was not sure whether all the long-term residents could be discharged from NHS in-patient care. He was aware of problems experienced elsewhere in the country and the difficulties which often arose when residents were discharged into social care. This process failed where adequate supervision and support was not provided. Over time he formed the view that it was appropriate not only for some but for all the Long Leys residents to be discharged from NHS care, and his opinion shifted. In particular, it shifted when he came across some of the patients from Harmston Hall Hospital who had been discharged into the community to live in homes catering for three or four people. He knew them when they were in that hospital. Ten or twelve years later when he saw them again he was very impressed by the change for the better in their general health and behaviour and their social skills and communication. He said how pleasing it was to see these people live in ordinary homes, have neighbours and friends who did not have learning disabilities, who were accessing local amenities and live a life as normal as their disabilities could allow.
5. He said it was wholly understandable that carers - both professionals and relations - preferred people to remain in the setting familiar to them. He believed that work had to be done to allay any anxieties that these caring people might have. One important way of doing this was to ensure that there was the appropriate level of support and a good match for the individual for the proposed new setting.
6. The deputy judge considered the challenge to the health authority's decision under a number of heads. The first head was that the health authority had misunderstood and misapplied government policy. He found that government policy showed a bias to a move away from long term care and institutions especially where there was no medical need, but there was no absolute rule. He found on the evidence that the health authority believed the move would be in the interests of the residents based on the assessment of their circumstances. The residents - and especially this applicant - did not require NHS care. They would enjoy greater autonomy and have greater potential in the community. The judge held that this view was not based on an erroneous view, as had been suggested, that government policy required a move to everyone in institutional care.
7. It was said that the health authority failed to give proper weight to the preferences of the residents of Long Leys and their families. The deputy judge found that the authority did take the applicant's and her family's strong preference that she should remain where she was into account. She had no health needs requiring NHS in-patient care. He said that the authority were entitled to take the view, despite the preference of the applicant and her family, that her autonomy and her progress would be enhanced by a move out of the setting at Long Leys.
8. The judge considered the issue relating to the breach of a promise of a home for life. He found that the authority had considered the effect of this promise but had concluded that the applicant should be moved because the move would provide positive benefits for her. He said in paragraph 51 of his judgment that -

"As [was] stated in ..... the March 1991 White Paper at paragraph 6.32 ....

`Such people have the same entitlements to independence, choice, inclusion and civil rights as all others.'

Those values, says the authority, with justification will be promoted by moving [the applicant] out of NHS accommodation and into the community. In these circumstances, I do not accept that the authority's decision amounts to an unfair abuse of power."

9. He went on to say that he was satisfied that the assessment by the consultant psychiatrist of the benefits to the applicant of moving her out of NHS care and the authority's decision to act on those views meant that the interference with her right to respect her home was justified under Article 8.2 of the European Convention on Human Rights:

"The authority is entitled to a degree of deference in relation to such a decision, and I cannot say their decision is a breach of Article 8 in the particular circumstances of her case, having regard to the fact that moving her will promote other aspects of her rights as a citizen in the community."

10. The final substantive point was that there had been defects in the assessment. The first issue related to the Community Care Plan which the judge found adequately addressed her needs, supplemented by the contribution by the consultant psychiatrist. He considered a challenge relating to the absence of a joint assessment but said that the two care plans involved reliance on the expertise of social services and the local health authority.
11. In relation to the absence of a psychological report on the impact of the move on the applicant he quoted at great length from the evidence of the consultant psychiatrist. The report started:

"[She] does not need nor receive any input from a psychologist and a report was not obtained from a psychologist in respect of her potential discharge. In my view, this is not necessary nor required."

12. Later on the report stated:

"As regards [the applicant], no specific vulnerabilities have been identified that would make her more prone to an adverse psychological impact following the discharge. [She] has happily visited her parents every weekend and has spent the weekend with them and returned to the bungalow. She has always coped well with minor change. [She] would adjust well with any change provided there is a degree of support. This will become more likely if she continues to live with residents and staff with whom she is familiar and the plan we have is for some of the staff to move with the residents for a short while until they are established in the community. It is inevitable that some tranquillising medication and behavioural therapy may be needed in the initial stage but this is something that we have had to use at times when [she] returned from weekend visits to her parents, possibly as an exhibition on her part of her unhappiness on leaving her parents and coming to the unit."

13. The judge said he could see no error of law in the psychiatrist and his team basing their assessment of the psychological impact of the move on the experience of the applicant and others.
14. A very long skeleton argument was lodged in support of the application for permission to appeal. This was considered by Lord Justice Laws who said very firmly:

"In my view the deputy judge reached the right conclusion for the right reasons."

15. This was not merely an experienced judge of this court saying he saw no real prospect of an appeal. It was a very positive view applauding the judgment of the deputy judge.
16. Mr Wise has renewed his application to this court. This morning when we sat we were given some new written submissions in which he sought to shorten the effect of what he had said in his long skeleton argument which we had plenty of time to consider before we sat. He challenged it under the same heads as the challenge in the court below. He has not abandoned any of those heads notwithstanding the views expressed by Lord Justice Laws. The heads are Government Policy, the Home for Life promise, Article 8 of the European Convention of Human Rights and the Failure to Assess. I have considered carefully the challenge by Mr Wise on each of these heads. In short, his complaint is that the local health authority paid too much attention to what he - using the expression as a term of opprobrium - described as a paternalistic best interest test rather than taking proper account of the preference of the applicant and her parents. He continued his challenge in relation to the misunderstanding of government policy.
17. In my judgment, the judge's approach to this issue cannot properly be faulted. Of course, modern thinking identifies to a greater and greater extent the need to respect the views of a person with learning disability and her plans and those of others who care for her. I can see no evidence that the local health authority did not take those matters very firmly into mind. It was impressive the way that they deferred taking the decision until they had had a proper opportunity to consider thoughtfully the legal advice they received on the right to a home for life point.
18. In my judgment, there is nothing in the idea that the local health authority misunderstood or misdirected themselves in relation to government policy such as to warrant an appeal to this court.
19. Mr Wise challenged the judge's careful analysis of the effect of the home for life promise. I would discount the judge's reference to the degree of uncertainty and the lack of clarity about the promise but that does not affect the main thrust of the judge's findings, in my judgment, correctly distinguishing this case from the case of R v North and East Devon Health Authority ex parte Coughlan [2000] 2 WLR 622. Again, Mr Wise used the same reference to best interests and at one stage in his argument he forgot himself so as to refer to the professional's best interests. What we are concerned about is a judgment as to the best interests of the patient, always taking into account the preferences of herself, her parents and those who love her but not regarding those necessarily as the ace of trumps.
20. In my judgment, there are no grounds for appealing on that head.
21. So far as Article 8 of the European Convention of Human Rights is concerned, it appears to me that the judge directed himself correctly in relation to this issue. He took into account all the applicant's rights, not merely the right of respect for her home but all the rights that Article 8 protects, and took the view that on this occasion the authority was entitled to behave as they did. I cannot fault his approach.
22. Finally, in relation to the failure to assess, Mr Wise relied heavily on a quite different case which he referred to as the Orchard Hill case - R v Merton, Sutton and Wandsworth Health Authority ex parte Perry [2001] Lloyd's Med Rep 73. That case was quite different from the present, although Mr Wise has picked out of the evidence references to the way in which the applicant might become distressed if her usual routine was disrupted or if there was a change to her usual routine and so on. This appears to have been a matter which has been carefully taken into account by the consultant psychiatrist in the evidence I have quoted. All in all, I agree with Lord Justice Laws that the judgment of the deputy judge was admirable. It cannot be faulted.
23. I would not grant permission to appeal.
24. LORD JUSTICE LATHAM: I agree.
Order: Application refused - assessment of applicant's costs.