England and Wales Court of Protection Decisions

BAILII Citation Number: [2014] EWCOP B19

Case No: 12238692

COURT OF PROTECTION

MENTAL CAPACITY ACT 2005

IN THE MATTER OF RR

First Avenue House

42-49 High Holborn,

London, WC1V 6NP

Date: 24^th April 2014

Before:

District Judge Mort

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Between:

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Mr Patel (instructed by Milton Keynes Council) for the Applicant

Miss Powell (instructed by Miles and Partners) for the 1^st Respondent

Miss Gordon (instructed by Campbell Law) for the 2^nd Respondent

Hearing dates: 23^rd and 24^th April 2014

APPROVED JUDGMENT

1. RR was born in Oakham in Rutland on 3/8/32. She is 81 years of age. She is the youngest of three siblings and the only survivor.
2. RR was married twice. She had three children with her first husband from whom she was divorced: he died in 1982. Her children are SS (the 2^nd Respondent), B who lives in the South West and suffers from multiple sclerosis, and C who lives in the USA.
3. RR’s second marriage lasted for some 5 years before her husband left her.
4. RR is described by her friend HK as having been a ‘very independent woman’. She was a Magistrate for 20 years. She had run a craft business from home. She had worked in market research. She taught copper and pewter work at a local prison. She started a significant annual charity event in Bedfordshire. According to her friend AS she was a weekly attendee at her local church and attended a Bible study group twice monthly. She attended a local over 60’s club every month and a ‘singles lunch’ twice monthly. These activities and interests were curtailed by her failing health.
5. RR had lived in her home for some 32 years. One gains the impression of a lady who had ‘put her roots down’ and engaged actively with her local community, her friends and her local church.
6. Since 2009 RR had lived in her home cared for by her son SS and his companion TT. SS dissolved his business and left his home in Germany to care for RR and he continued to do so from December 2009 until 25/10/12.
7. RR was diagnosed with vascular dementia, of a moderate type on 1/6/07. In a mental health assessment on 6/11/12 RR was described as having ‘cognitive deficits, confusion, disorientation to time place and person’ and on 12/11/12 she was diagnosed with severe dementia and as a consequence found to lack capacity to make decisions regarding residence, care and contact.
8. On 25/10/12 RR was removed from her home by Milton Keynes Council (MKC).
9. RR’s removal from her home followed safeguarding alerts about her welfare, these were:
• 14 August 2012: redness around RR’s left eye, bruising around her neck and along the right side of her face and neck and up to her temple.
• 3 October 2012: cut to the left side, towards the back of her head, she also had bruising and swelling to her right cheek.
• 19 October 2012: bruising to the cheek area and near the right side of the mouth.
10. Surprisingly none of these safeguarding alerts was investigated by MKC’s safeguarding team. Referrals were made but there is no explanation for the failure to investigate.
11. No alert had been raised following a report on 3/9/12 from the manager of the day centre attended by RR raising concerns about bruising and scratches on RR’s nose cheek and legs.
12. A further safeguarding alert was raised on 25/10/12 which proved to be the catalyst for RR’s removal from her home that day. CD, a student social worker at the time, employed by MKC, states in her witness statement dated 7/11/12 ‘At this time it was considered due to the escalating injuries and the delayed investigation that it was in [RR]’s best interest that she was removed to a place of safety whilst an investigation took place’. The incident was also to be reported to the police.
13. CD and DC, a social worker, attended RR’s property on 25/10/12. RR’s son SS was not at home and RR unsurprisingly could not explain how she had sustained the injuries. RR is said to have ‘willingly left her home’ and she was taken to a Care Home.
14. SS was not informed of his mother’s whereabouts until 13/11/12, 19 days after her removal, and then I am told only in response to a letter from his solicitor.
15. MKC had not sought an urgent authorisation for RR’s removal from her home and residence at the Care Home. A standard authorisation was requested on 29/10/12 but it was not given until 8/11/12 some 14 days after RR’s removal from her home.
16. MKC made an application to the Court of Protection on 9/11/12, 15 days after RR’s removal from her home. On 27/11/12 the court declared that it was in RR’s best interests to reside at the Care Home in the interim and authorised any subsequent deprivation of liberty. Further orders followed in similar terms.
17. During the course of these proceedings it is pertinent to note:

• In May 2013 the police, to whom the safeguarding concerns were referred on the 25/10/12, advised that they would be taking no further action.
• MKC filed and served a schedule of allegations (running to 39 pages) concerning SS. The allegations were denied by SS. MKC gave notice on 12/2/14 that they would not be pursuing the allegations, 16 months after RR’s removal from her home.
• The Independent Social Worker reported on 5^th July 2013 to the effect that if SS and TT were not responsible for RR’s injuries it was his opinion that RR should remain at the Care Home until a care plan was in place to support RR at home, at which point RR should return home.
• MKC gave notice by letter dated 13/9/13 that it had determined not to fund a package of care for RR in the community and commented ‘It is felt that the Care Home is the appropriate placement for RR’s needs’.
• MKC’s safeguarding investigation was not completed until 12/9/13, some eleven months after RR’s removal from her home. It concluded that neither SS nor TT had sought appropriate and timely treatment for RR and concluded that RR had suffered acts of neglect or omission by SS and TT and should not be returned to their care. These conclusions are not accepted by SS.
• SS’s contact with his mother (and therefore her contact with him) has been subject to restriction as a consequence of the allegations made against him.

18. SS and the Official Solicitor as the Litigation Friend of RR, consented to a final order being made on 5/2/14 containing declarations that RR lacks capacity to litigate in these proceedings, to make decisions about where she should live and in respect of care and contact with others. A final declaration was also made that it was in RR’s best interests to reside at the Care Home. It is SS’s position that he had little choice other than give his consent as no more suitable residential option was available for RR. In any event he was not in a position to fund alternative arrangements given MKC’s decision to withdraw direct payments from him.
19. On the 12/2/14 the Head of MKC’s Older People and Physical Disability Services filed a statement in which she accepted ‘that there was no authorisation in place for the deprivation of liberty until a DOLS authorisation was put in place on 8/11/12’ and that it ‘would have been appropriate and best practice for MKC to have made its application to the Court of protection and obtained authorisation for RR’s removal.’
20. In the position statement dated 7/4/14 filed on behalf of MKC it is accepted that RR’s removal ‘was unlawful because it involved depriving RR of her liberty without authority and it was not authorised until a standard authorisation was put in place on 8/11/12’.
21. According to their position statement MKC have, since RR’s removal, carried out ‘a review of their safeguarding practices’ and ‘a safeguarding lead trainer has now been appointed. In addition, workers have received additional training to increase their knowledge and understanding to ensure best practice in future’.
22. This has come too late for RR. She has been removed from her home and detained unlawfully. She has no prospect of being able to return to her home. SS has had allegations raised against him by Milton Keynes Council which he has denied and which have not been pursued. Those allegations have lead to restrictions on contact between RR and SS.
23. The initial failure of MKC to investigate the safeguarding concerns was deplorable as was their failure to apply to the Court of Protection for authority to remove RR from her home. The 19 day delay in applying to the court compounds their failure as does their failure to advise SS of his mother’s whereabouts for the same period. Furthermore the safeguarding investigation was not completed until 12/9/13 with the result that contact between RR and her son was subject to restrictions for longer than was necessary.
24. There can be no excuse for MKC’s initial failure to investigate the safeguarding alerts. The way they have dealt with this case has been woefully inadequate from the start. It has resulted in avoidable and unlawful interference in respect of RR’s Art. 5 right to liberty and security of person and her Art. 8 right to respect for her private and family life and her home. Those rights are not invalidated, nor are the unlawful interferences with those rights rendered any less serious by virtue of RR’s incapacity.
25. I shall make a declaration that in breach of Art. 5 RR was unlawfully deprived of her liberty when she was removed from her home on 25/10/12 and that unlawful deprivation of her liberty continued until 8/11/12 when the standard authorisation was made.
26. I am also satisfied and declare that there was a breach of RR’s Art. 8 rights consequent upon her removal from her home.
27. I understand that MKC have agreed to send letters of apology in respect of their failings to both RR and SS. Those letters should be written and despatched without delay and in any event within the next seven days.
28. The issues which remain relate to contact, and the costs generated by these proceedings.
29. Turning to contact: I am referred to a schedule which sets out ‘contact expectations’ and a ‘contact plan’. Paras 1,3,4,8,9,10 of the contact expectations are agreed, para 2 is not pursued and paras 5,6,7 are not agreed. Paras 1,2,4 of the contact plan is agreed, paras 3 and 5 are not agreed.
30. I pause to remind myself that any decision made on behalf of RR must be made in her best interests and it must be the least restrictive of her rights and freedom of action. I bear in mind that whilst RR cannot express her wishes and feelings she is a lady who has enjoyed participating in activities in her community. She has enjoyed a close relationship with her son, SS.
31. In respect of contact between RR and her son at the Care Home I can see no reason for any restrictions other than those to which all visitors to the Home are subject. It would seem that this is accepted by the Home and MKC and is therefore non-contentious. That being the case I cannot see the need for paras 1,3,4 of the contact expectations to be included in that document as they relate to contact arrangements at the Home. However I note that the inclusion of those words is not contentious.
32. I have had the benefit of hearing from RR’s son SS. He is undoubtedly devoted to his mother. He visits her on a daily basis unless prevented by illness. He cared for RR with assistance from TT between 2009 and her removal in 2012. He sees no need for restrictions on his contact outside the Home. He would like to take RR shopping for clothes, to her Church, and to a club at the local community centre if her place is still open. He would also like to take her to see his brother in the South West who suffers from multiple sclerosis but that would entail a 5 hour journey and an overnight stay.
33. SS describes RR as being able to sit in an armchair when he visits. He has seen her move herself from one chair to another and has not asked for assistance from him. At times when she is brought to him he described how she walks slowly accompanied by a carer who seems to guide her.
34. SS does not accept that RR needs two carers to accompany her in order to attend to her intimate personal care. Whilst he has not himself carried out this function out of respect for his mother he would not be averse to doing so in future. He stated that RR wears incontinence pads and these can be changed when she is sitting down.
35. The overview assessment dated 30/1/14 indicates that RR has very high support needs in respect of washing her whole body (support needed twice a day) and using the toilet (support needed every 2-3 hours)
36. The assessment contains the following statement:

‘’RR is unable to manage personal care such as dressing, washing showering and attending to her appearance without support from carers. RR needs support from one carer with these tasks if she is having a good day, however other times she may need two carers to help her. The support required depends on her needs on that day. RR is unaware of when she requires to use the toilet and is doubly incontinent. She wears continence pads during the day and night and is taken to the toilet regularly’

37. In respect of using transport RR is assessed as having high support needs. It is commented in the assessment ‘when RR is having a good day she is able to mobilise and transfer with help from one carer, however other times she needs two carers’.
38. It is in RR’s best interests that she is able to have access to the community; it is something which she has hitherto enjoyed. Her safety when she does so is of primary concern. In that respect I err on the side of caution and take into account the comments in the overview assessment. If the outing is for over two hours RR should be accompanied by two carers to attend to her needs. SS accepts that in those circumstances it is reasonable for him to give three days notice so that appropriate arrangements can be made.
39. If the outing is for less than two hours I see no reason to limit such outings to once a week. The Head of MKC’s Older People’s and Physical Disability Service when asked ‘what are the risks of RR going out more than once a week with her son?’ commented ‘none at all’. I take note of that answer.
40. It is stated on behalf of MKC that they will fund the reasonable costs of providing adapted transport to facilitate the contact arrangements. I am satisfied that such an arrangement would benefit RR.
41. SS has indicated that he and TT are willing to undertake a manual handling course so that they are better able to assist RR. In my view such training should be arranged as soon as possible so that the skill which they acquire may inform the review of the contact arrangements and in particular whether there is a need for two carers to accompany RR during her outings thereafter.
42. These contact arrangements are not set in stone. Contact arrangements should be fluid so that they can cater for RR’s changing needs. For them to work cooperation between all those involved in caring for RR is required. I hope that these contact arrangements can move forward by agreement. The regular review of the contact arrangements provides the forum for the parties to reach a consensus on what is in RR’s best interests. It is appropriate that the meeting should involve those proposed in the contact plan.
43. As to the issue of costs I shall invite the parties to make written submissions so that I may consider that issue at a later date.
44. I have given permission for this Judgment to be published. None of the parties shall be identified save for Milton Keynes Council, who can be named.