England and Wales Court of Protection Decisions

IN THE HIGH COURT OF JUSTICE

		Royal Courts of Justice Strand, London, WC2A 2LL
		12/07/2012

Mr. Justice Ryder:

1. This is an application for costs by LPM, the brother of CP, against the Applicant local authority. LPM seeks an order that the Applicant local authority should pay the costs of LPM with the quantum to be subject to detailed assessment, if not agreed. LPM is not seeking the court to make an assessment as to the value of costs, but simply the principle regarding the same.
2. The Court of Protection and Administrative Court proceedings concerning CP were concluded by a judgment reported at [2011] EWHC 1539 (Admin). CP suffers from severe autism, severe learning disabilities and exhibits extreme, challenging behaviours including severe anxiety, sensory impairment, aggressive and destructive traits, significant self harm and harm to his carers. He had very significantly impaired communication skills and has a minimal tolerance of any change in routine or physical transition between places or activities. He lived in a residential special school for pupils with severe learning difficulties and complex needs, owned and operated by an organisation, having moved there on 21^st May 2007. Staff at the residential placement used a 'blue room' (an isolation room) to manage his behaviour.
3. LPM is the brother of CP. The Court of Protection and Administrative court Proceedings came before the Court on 12^th, 13^th, 14^th and 17^th January and 3^rd February 2011. The court handed down judgment on 30^th March 2011.
4. It is common ground that the legal principles relating to costs are set out by the Court of Appeal in G & E [2011] EWCA Civ 939 where the court endorsed the first instance decision of Baker J as follows:

"15. Baker J set out the relevant Court of Protection rules and Civil Procedure rules:

"22. The rules governing the award of costs in the Court of Protection are set out in Part 19 of the Court of Protection Rules. The following rules are relevant to this application.

23. Rule 157, entitled "Personal welfare – the general rule", provides:

"Where the proceedings concern P's personal welfare, the general rule is that there will be no order as to the costs of the proceedings or of that part of the proceedings that concerns P's personal welfare."

24. Rule 159, headed "Departing from the general rule", provides as follows:

"(1) The court may depart from rules 156 to 158 if the circumstances so justify, and in deciding whether departure is justified, the court will have regard to all the circumstances including

(a) the conduct of the parties;

(b) whether a party has succeeded on part of his case, even if he has not been wholly successful; and

(c) the role of any public body involved in the proceedings.

(2) The conduct of the parties includes

(a) conduct before, as well as during, the proceedings;

(b) whether it was reasonable for a party to raise, pursue or contest a particular issue;

(c) the manner in which a party has made or responded to an application or a particular issue; and

(d) whether a party who has succeeded in his application or response to an application, in whole or in part, exaggerated any matter contained in his application or response…"

25. Rule 160 provides that, subject to the provisions of the Court of Protection Rules, some parts of the Civil Procedure Rules 1998 shall apply, with appropriate modifications, to costs incurred in relation to proceedings under the Court of Protection Rules. This includes Part 44 of the Civil Procedural Rules relating to costs. Of these latter rules, the following are relevant to the current applications.

26. Under CPR 44.3(1) "the court has discretion as to

(a) As to whether the costs are payable to one party to another;

(b) The amount of those costs;

(c) When they are to be paid."

27. Under CPR 44.3(6), "the orders which the court may make under this rule include an order that the party must pay

(a) a proportion of another party's costs;

(b) a stated amount in respect of another party's costs;

(c) costs from or until a certain date only;

(d) costs incurred before proceedings have begun;

(e) costs relating to particular steps taken in the proceedings;

(f) costs relating only to distinct part of the proceedings; and

(g) interest on costs from or until a certain date, including a date before judgment."

28. The distinction between indemnity and standard costs are set out in CPR 44.4 which provides inter alia as follows.

"(1) Where the court is to assess the amount of costs (whether by summary or detailed assessment) it will assess those costs

(a) on the standard basis; or

(b) on the indemnity basis,

but the court will not in either case allow costs which have been unreasonably incurred or unreasonable in amount.

(2) Where the amount of costs is to be assessed on the standard basis, the court will

(a) only allow costs which are proportionate to the matters in issue; and

(b) resolve any doubt which it may have as to whether costs were reasonably incurred or reasonable and proportionate in amount in favour of the paying party.

(3) Where the amount of costs is to be assessed on the indemnity basis, the court will resolve any doubt which it may have as to whether costs have been reasonably incurred or reasonable in amount in favour of the receiving party."

5. It is right to say that the Court should follow the general rule on costs in welfare cases where it is appropriate, and it is only local authorities who have broken the law, or who are guilty of misconduct (that falls within rule 159) that have reason to fear a costs order, G & E [2010] EWHC 3385 (Fam), per Baker J at [40], as approved by the Court of Appeal (supra) at [16].
6. I agree that the salient parts of this court's substantive judgment can be summarised as follows (with cross references in square brackets);

(a) the local authority's position at the hearing was that seclusion and restraint in the blue room amounted to a deprivation of CP's liberty, which if not endorsed by the court was unlawful and in breach of his Article 5 right. However, they denied that such seclusion and/or restraint resulted in any breaches of Article 3 and 8, ".... [28] Although they concede that seclusion and restraint in the blue room is a deprivation of C's liberty which if not authorised by the court is unlawful and in breach of his article 5 ECHR rights, they deny that seclusion and restraint are in breach of his article 3 and/or 8 ECHR rights. They deny that it is inappropriate to seclude C in the blue room when he is naked because of the need to protect his dignity or that he is left to urinate and defecate, smear, mouth or eat his own faeces or self harm in the blue room....[49]... The local authority maintain their denial that C's seclusion and restraint in the blue room or elsewhere amounts to a breach of his article 3 and/or 8 ECHR rights but now concede that when he is secluded and restrained in the blue room as a consequence of his extreme challenging behaviours that amounts to a deprivation of his liberty and in so far as that is not authorised by the court, such a deprivation is unlawful and in breach of his article 5 ECHR rights...";

(b) the Court concluded that between CP's 16^th birthday on 29^th July 2008 (when by reason of section 2 MCA 2005 the jurisdiction of the Court of Protection could have been invoked) and his 18^th birthday, and until interim relief was obtained in these proceedings, there was no authority by court order or statutory power for CP to be deprived of his liberty either generally or in the blue room, [48];

(c) as accepted by the local authority, CP was unlawfully deprived of his liberty in contravention of Article 5. The Applicant also conceded, "... that from the time C reached the age of 16 the approach of the MCA 2005 was more relevant to his situation than that of the CA 1989. That approach was not applied to C..." [48]. No application was made to the High Court under the Children Act 1989 for a secure accommodation order to justify any deprivation of liberty and/or seclusion/restraint [113];

(d) accordingly, the Court concluded that there had been a period when there was no lawful authority for CP to be deprived of his liberty generally or for him to be secluded in the blue room, ".... From 29 July 2008 when he was 16 any deprivation of liberty that there was could and should have been authorised by the Court of Protection. Any deprivation of his liberty would be a breach of his article 5 ECHR rights and is accordingly unlawful...." [113];

(e) the local authority conceded that they were in breach of their statutory obligations under the CA 1989, the CLCA 2000, the CLC Regs 2001 and the CLC Guidance to provide CP (and LPM) with a pathway plan setting out the arrangements for his transition to adult social services in sufficient detail to accord with the regulations and case law [50];

(f) the local authority also stated that the MHA 1983 Code of Practice did not apply to any seclusion, which occurred at the school. The court concluded that it applied to CP's care and treatment at the school, and in particular to his seclusion and restraint [69-70], and [71], "... It would be unacceptable for C as an incapacitated child to be secluded or restrained without reference to best practice guidelines and that should apply to other children and young persons in the same or similar circumstances...."; and

(g) The court summarised its concerns in respect of the Applicant's actions and/or omissions at [122] when it said that, "... It would not be right to leave this tragic case without noting that there are many very dedicated people, professionals and trained carers alike who are involved in the care of those with complex needs like C: they deserve the court's and society's sincere thanks. Despite this and despite the plethora of Government guidance and regulation, the court is left with a worrying impression that urban myth and so called 'common sense' rather than expert advice and multi-disciplinary working practices continues to be influential in some residential settings. Inquiries long ago established the need for specialist, qualified care and treatment for pupils and patients with special needs and likewise in the management of the establishments which provide that care and treatment: whether they are schools, children homes, care homes or hospitals. Until this court's intervention, that multi-disciplinary environment with access to high quality inter-disciplinary advice did not exist for C. That was unacceptable...."

7. It can fairly be said by the local authority that they made appropriate concessions at an early stage. These concessions included the following :-

(a) Seclusion and restraint in the blue room would amount to a deprivation of liberty which would be unlawful if not authorised by the Court and in breach of ECHR Article 5'

(b) From the earliest stages of the CoP proceedings the local authority agreed to implement the recommendations of Ms. L, an Occupational Therapist.

(c) That there did not exist at the time the local authority issued proceedings in the CoP an appropriate care plan, appropriate transitional arrangements for C's move into adulthood and out of the residential setting provided by the school [14ii] and [50] and [108]) and a mechanism for review. All of these matters were compromised as a result of the close working relationship between the Official Solicitor, the local authority and LM.

(d) The local authority assisted in the development of the "complex case management matrix… to identify and resolve issues sequentially and as swiftly as possible." [16].

(e) At a very early stage of the judicial review proceedings the local authority conceded that they were in breach of statutory duty; [50].

(f) The local authority, along with all of the parties to the proceedings, engaged in the very genuine desire to implement the letter and spirit of section 4 of the MCA; [57].

(g) Furthermore, other concessions were made by the local authority at [108 iii-v, vii-viii].

8. The local authority point to the public interest in seeking the court's ruling on the applicability of the MHA 1983 Code of Practice to seclusion at the school.
9. I accept that LPM would always have wanted to become a party to the proceedings, as demonstrated by the fact that he, along with his Mother, attended all hearings even before he was legally represented. That is not a criticism; rather it is a tribute to his determination to act on behalf of his brother. Furthermore, by the time LPM had legal representation and became a party to the proceedings (on 3 December 2010) the local authority and the Official Solicitor had instructed experts in social work and psychiatry. It was the psychiatrist instructed by the local authority, Dr. A, who suggested that CP may need a hospital setting for his care management.

Formulation

10. The local authority's submissions on quantum, the public funding from which LPM benefited and the fact that LPM did not claim HR damages for himself are irrelevant considerations to the exercise of this court's discretion.
11. As set out in Hillingdon v Neary & Neary [2011] EWHC 3522 per Peter Jackson J the questions to be addressed are (a) is the departure from the general rule justified in all the circumstances, including the conduct of the parties, the outcome of the case and the role of the Applicant as a public body?; and (b) if so, what order should be made?
12. The court was satisfied that there had been a disregard of the processes of the Mental Capacity Act 2005 and the Children Act 1989, breaches of statutory obligation and a failure to apply relevant guidance to CP when he was secluded/restrained in the blue room. It follows that there was a disregard of the obligation to respect the rights of CP and LPM. As in G & E, (supra) such misconduct justifies departing from the general rule.
13. In any event, as was made clear in AH [2011] EWHC 276 (COP) at [69] that 'bad faith' or 'flagrant misconduct' is not a condition precedent to justify a departure from the normal cost principle, "…[this]…is a case where there has been no bad faith or flagrant misconduct, but there has been substandard practice and a failure by the public bodies to recognize the weakness of their own cases and the strength of the cases against them. In such circumstances they cannot invoke rule 157 at the expense of others…".
14. If the local authority had followed the proper procedure under the MCA 2005, LPM's role in the proceedings would have been much more peripheral, and it is possible that he would not have been a party at all.
15. In the event, it was LPM who took the lead in seeking the determination of whether (a) the use of the blue room (and isolation rooms generally) amounted to a deprivation of liberty; (b) introduced the court to academic literature, international practices and guidance to the use of the blue room; (c) provided for the vital instruction/evidence of Ms. SP (an expert in the care of young people with learning disabilities with a particular emphasis on Autism) who was the only expert to work with the School to determine strategies to reduce CP's use of the blue room, thereby informing the transitional care plan for his subsequent placement; and (d) provided the equally vital instruction to and evidence of Dr. C (Consultant Psychiatrist in Learning Disabilities) whose essential expertise on the use of similar isolation rooms and the applicable guidance was invaluable.
16. In addition, the following facts are in my judgment important:

(a) the local authority denied that seclusion and/or restraint resulted in any breaches of Article 3 and 8 of the ECHR;

(b) the court concluded that between CP's 16^th birthday on 29^th July 2008 (when by reason of section 2 MCA 2005 the jurisdiction of the Court of Protection could have been invoked) and his 18^th birthday, and until interim relief was obtained in these proceedings, there was no authority by court order or statutory power for CP to be deprived of his liberty whether generally or in the blue room;

(c) as accepted by the local authority, CP was unlawfully deprived of his liberty in contravention of Article 5. Accordingly, the court concluded that there had been a period when there was no lawful authority for CP to be deprived of his liberty generally or for him to be secluded in the blue room:

(d) no application was made to the High Court under the children Act 1989 for a secure accommodation order to justify any deprivation of liberty and/or seclusion/restraint;

(e) the court also held that the Applicant was in breach of their statutory obligations under the CA 1989, the CLCA 2000, the CLC Refs 2001 and the CLC Guidance to provide CP with a pathway plan setting out the arrangements for his transition to adult social services in sufficient detail to accord with the regulations and case law;

(f) the local authority failed to accept (and disputed the same in the course of the proceedings) that the MHA 1983 Code of Practice applied to the seclusion, which occurred at the school. The court concluded that it applied to the care and treatment at the school, and in particular to his seclusion and restraint; and

(g) the court summarised its concerns in respect of the Applicant's actions and/or omissions.

17. For these reasons I have come to the conclusion that

a) the local authority's actions are tainted with illegality

b) the local authority's decision making was impoverished and disorganised

c) The local authority is responsible for the delay in referring CP's circumstances to the Court of Protection and/or the High Court in its children and inherent jurisdictions

d) The local authority could have arrived at the position concluded by the court many months earlier.

18. The local authority shall pay LPM's costs to be assessed if not agreed.