England and Wales Court of Protection Decisions

 

 

IN THE court of protection		CASE NO: 12566550-01
IN THE MATTER OF THE MENTAL CAPACITY ACT 2005   IN THE MATTER OF PL
B E T W E E N :
dorset county council
		Applicant
-and-
PL (by his litigation friend, the official solicitor)
		First Respondent
AL
		Second Respondent
	RESERVED JUDGMENT AND REASONS FOR THE DECISION MADE ON 27TH APRIL 2015

 

Background 

1.         These proceedings concern PL who is now 19 years old.  He has been diagnosed as suffering with autism and severe learning disability.  PL lacks capacity to conduct these proceedings and to make decisions regarding his residence, with whom he should have contact and his care. 

2.         PL currently resides in a specialist adult residential placement  in Lincoln (‘BH’).  BH has served notice on PL’s placement it is understood due to difficulties with contact between PL and his mother AL. 

3.         PL was subject to a standard authorisation under the Deprivation of Liberty Safeguards (DoLS) regime which expired on 17^th December 2014.  His continuing deprivation at BH has subsequently been authorised by the court. 

4.         The Applicant council seeks declarations that:-

(a)       it is in PL’s best interests to move to ‘OL’, a care home in Lincolnshire, after a period of transition; and     

(b)       it is in PL’s best interests to have restricted and supervised contact with his mother AL at an off-site location. 

5.         PL is a 19 year old man with complex needs.  He is not able to verbally communicate although he can vocalise and whistle.  He can also use PECS symbols and a choice board to indicate basic decisions.  He has a number of sensory needs and has access to a sensory room and other equipment at his current residence.  He has no awareness of risk and can exhibit some challenging behaviours that present a risk to him and others, such as pushing, grabbing and biting. 

6.         BH are no longer prepared to offer a placement to PL and set out its reasons for that decision in a letter at page 243 of the court bundle which states        

“Whilst we have strived to provide the best care possible for PL, it is unfortunate that the unrelenting pressures and intense challenges that our service including its staff and residents have been subjected to by PL’s mother throughout PL’s placement remain unsustainable and it has had a significant impact on our service.” 

7.         BH have agreed to extend PL’s placement on several occasions so these proceedings may be concluded. 

8.         PL has attended several different placements in the past, including special schools since the age of 4.  Not every placement has been within a close geographic location to PL’s mother and she has in the past been forced to relocate in order to be closer to and thereby spend time with PL.  It is not necessary for me to set out in any great detail the concerns raised by BH that led to their decision being made to serve notice. 

9.         Consequent upon that decision being communicated various best interest meetings took place with the Applicant council and PL’s parents (his father not being a party however to these proceedings).  

10.      AL pre-empted any application on behalf of the council by her own application for deputyship made in September 2014.  On 10^th December 2014 District Judge Mort dismissed AL’s application for deputyship and directed an independent social work report be obtained to report on best interests. 

11.      There was some delay in the preparation of the ISW report, for which time was extended.  The matter was listed for final hearing on 1^st and 2^nd April.  Various directions were made with regard to statements and evidence. 

12.      By its evidence filed on or about 11^th February 2015 the council indicated having considered a significant number of possible placements there were three potential care homes that might meet PL’s needs and which had a vacancy.  On 10^th March the council produced a further best interest decision confirming it still considered a placement at OL would be in PL’s best interests. 

13.      Very late in the day and prior to the hearing on 1^st April AL asked the local authority to consider a new placement called ‘CC’.  At the hearing on 1^st April I directed the council assess CC and that the jointly instructed ISW prepare a supplemental report outlining her views also in respect of CC and in her opinion where it is in PL’s best interests to reside. 

14.      The assessment and report were complete and available for consideration by the court for 27^th April although the addendum report from the ISW was not seen by AL until that day. 

15.      PL’s father, AB, was not a party to the proceedings, but had on previous occasions participated in best interest assessments, maintained monthly contact with PL and expressed the view that OL would be an appropriate placement, on balance, for PL notwithstanding the fact that CC would be a more convenient location for travel. 

16.      It remained the view of the Official Solicitor, on behalf of PL and the Applicant Authority that notwithstanding the assessment of CC that OL remained the most suitable option and that it would be in PL’s best interests to move there.  AL believed it would be in PL’s best interests to move to CC. 

Documents 

17.      As might be anticipated in a complex case of this nature there were a significant amount of background documents.  The more crucial documents to the decision making in this case being the statements of the Official Solicitor and position statements filed on his behalf; the four witness statements of PL’s social worker, the statement of AL and her very helpful supporting e‑mail of 17^th April in relation to CC:  the ISW report from Diane Sugden and her supplemental reports of March and April. 

The Issues 

18.      The issues for the court to determine were where PL should live, more particularly OL or CC and with whom he should have contact, again more particularly whether contact with AL should be restricted and supervised and take place at an off-site location.  Consequently the evidence and submissions before the court on 27^th April focused on these issues. 

The Evidence 

PL’s social worker

19.      I found each of PL’s social worker’s witness statements to be carefully and objectively prepared with proper and detailed inquiries being made into the available options for PL.  I do not propose to focus on her initial inquiries, it being common ground certainly by 1^st April that the only options would either be OL and CC.  The court is extremely grateful that PL’s social worker was able to carry out an assessment of CC at short notice and within the strict timetable suggested by the court.  A fourth statement sets out in some detail the inquiries she made of the organisation, the accommodation offered, their ability to meet the needs of people with complex needs such as PL, the provision of sensory abilities, indoor space, as well as outdoor and the care package that would be provided.  In addition consideration had properly been given as to how PL’s educational needs would be met, in particular by reference to the local college.

20.       At Appendix B of her statement PL’s social worker adopted a balance sheet approach to her assessment of CC.  I do not propose to set out the details in this judgment, save to say it is a careful and well thought out document, both as to the placement criteria to be applied and her balance sheet assessment as to how well those criteria would be met, or otherwise, at CC.  I found the social worker’s evidence compelling, as well as being a thorough assessment.  This view was strengthened by the manner in which she gave oral evidence, both as to issues of residence and contact and the further consideration she had given, in relation to the transition plan and reviews.

21.       It was clear in her evidence there needed to be boundaries in place in relation to supervision of contact between AL and PL, there should be set routines and flexibility in those arrangements, in the past, had led to difficulties, hence her view that contact arrangements should be adhered to and not be subject to any flexible arrangement.  She was further of the view that in order to ensure the placement at OL was a long term option (that being her preferred choice over CC), contact between PL and AL should be off-site.  This being a reiteration of the view she had expressed in her earlier witness statements in February and March. 

22.      As was clear from her responses to questions from Counsel on behalf of the Official Solicitor it was also apparent that the social worker did not have a closed mind on the arrangements readily conceding for example, amendments that needed to be made to the proposed contact regime/agreement, a more detailed explanation of various phrases used and a proper provision for notification of complaints or queries concerning PL by his mother. 

AL

23.      There can be no doubt that AL loves and cares for her son very much and her sole reason not only in relation to these proceedings but in relation to her involvement with BH was to ensure that PL receives the best possible care and support and understanding of his needs.  The court can well understand the frustration of a mother who has spent some nineteen years bringing up, caring for and visiting her son  with whom she has a special relationship when she perceives others charged with his care may not be discharging those functions in necessarily the same way that she would.  AL was able to articulate those concerns in her witness statement, in her very careful and helpful critique of the ISW report, the assessment of CC and in giving her oral evidence as to what she believed was in the best interests of PL.  It was very telling that during her evidence she indicated she was prepared to comply with restrictions on contact, restrictions on its regularity and where PL should live because in her words she loved her son.

24.       Consideration of CC had come from her own diligent researches and it was clear from the addendum report of the ISW and the statement of PL’s social worker that CC was a genuine candidate for consideration.  Her e‑mail of 17^th April dealt fully with the balance sheet concerns expressed by PL’s social worker and the ISW against the determining criteria.  What clearly influenced AL was not personal convenience to her (CC would probably involve relocating and additional travel) but what she felt would be the best facilities for PL and in particular the possibility of his access to a local college. 

25.      Where AL’s wishes departed from those of the social worker and ISW were particularly in the areas of contact where she sought flexibility and choice in those arrangements whether on-site or off-site and the social worker and ISW recommended a more rigid approach to the contact regime and its location.

26.      She accepted CC had no sensory facilities and for those to be enjoyed by PL would involve travel to an external site however AL indicated she already had equipment that PL could and had used in the past.  She accepted that it would be an easier journey for her to OL and she would not have to relocate.  She also accepted that the indoor space at CC was less than that available at OL.  Notwithstanding AL’s clear preference for CC I gained the impression from her evidence that she accepted it had been properly considered as a possible option and that if the court determined it were in PL’s best interests to locate to OL she would abide by that decision, comply with any relevant protocols at OL and accept there would be little flexibility in the contact arrangements. 

Diane Sugden – Independent Social Worker 

27.      Mrs Sugden had produced three reports, an initial lengthy report in February 2015 and two subsequent reports in March and April.  As with PL’s social worker I was struck by the careful and thorough nature of this report, the way in which the questions raised in her letter of instruction were dealt with and the measured conclusions reached, in each case with a careful and reasoned explanation.  Unsurprisingly the focus of her evidence was in relation to OL and CC as well as any contact regime. 

28.      Prior to 1^st April Mrs Sugden’s clear conclusions were that, when compared with other available options a placement at OL was in PL’s best interests and that with regard to contact this should be supervised. It was justified to have restrictions in place concerning contact and arrangements should not be flexible. There should be provision for weekly contact for a duration of up to two hours, save that such sessions could be brought to an end if PL was showing signs of becoming over stimulated, anxious or AL’s behaviour was causing concern.

29.       Her addendum report was again helpfully produced against a short timescale setting out the detailed inquiries she had made concerning CC and her consideration of that facility, against OL, the evidence of PL’s social worker and her discussions with AL.  Again I was struck by the care with which the report had been prepared and the detailed and considered response to the questions raised in her instructions.  There was a reasoned assessment as to why CC did not meet the criteria, in every regard, set out in her report of 24^th February and therefore could not meet PL’s needs.  She expressed some concern that CC was a relatively new facility, that there may be a lack of experience dealing with residents with autism related needs, that new staff have yet to be recruited and there was no on-site sensory facilities.  Her report was couched against the criteria set out in Appendix B of PL’s social worker’s statement and she was clearly of the view that it would be in PL’s best interests to reside at OL, that being the conclusion to her addendum report at pages 17 and 18.  I do not propose to recite the conclusion here but it was a clear and firm view for the reasons set out that a move to OL would be in PL’s best interests. 

30.      Ms Sugden’s views in relation to contact remained constant, that contact should be on a planned basis every week for a maximum of two hours.  However there should be provision for reviews not necessarily an expectation that this would lead to an increase in contact, simply that contact should be reviewed as it was an evolving process.  She believed there should be a slightly more regular review pattern than suggested by PL’s social worker and supported the view that contact should not be subject to flexible arrangements. In her view it was very important that PL should not be exposed to any potential of heightened anxiety, discord or disruption, particularly at the end of any contact session and it was important that countdown, (i.e. the ending of a session) was properly managed. 

31.      Whilst accepting for the time being contact should be no more than two hours and should be off-site, any review of contact should be a full review of all of the contact conditions. 

32.      I found Ms Sugden’s evidence to be compelling, extremely well-reasoned and a thorough examination and inquiry of the issues. 

Conclusions and Discussion 

33.      For the reasons already given in my analysis of the expert evidence I found the reports, oral evidence and recommendation of PL’s social worker and Ms Sugden compelling.  They each contained a detailed analysis in relation to both options for long term residence and each concluded with well-reasoned argument that OL remained the most appropriate placement in meeting PL’s needs.  There were question marks about the ability of CC to meet the needs of people with sensory related needs, they were a relatively new provider with no established track record and hence no evidence of their success in supporting people with PL’s level of need.

34.       PL’s accommodation at OL would provide him with the opportunity to engage and socialise with his housemate while at the same time meeting his need for personal space.  Although OL had a smaller communal sitting room there would only be one other resident and fewer staff and less risk of PL feeling confined or cramped in his home environment.  He would have the opportunity to create an individual personal area and be able to play his music and drums without disturbing his housemate.  There would also be facility for on-site visits in this area.  OL has a well-equipped sensory room and activity room and it was clear they had put together a well thought out plan for PL’s transition.

35.       In relation to contact then whilst it remains clear that PL would benefit from regular contact with his mother, it is equally clear that difficulties in the past have arisen where boundaries are not imposed and a more flexible arrangement is relied upon.  These matters again are dealt with in some length by Mrs Sugden and I accept her views and conclusion that if contact is to work there needs to be a framework in place to ensure the proposed regime is adhered to and certainly in the short term there can be no flexibility in those arrangements.

36.       It is very clear from the recommendations of the social worker, OL and Mrs Sugden that there needs to be a transition period where contact does not take place until such time as PL is settled, thereafter contact should be for a duration of two hours on a weekly basis.  If a weekly appointment cannot be kept for whatever reason that contact will simply be lost as opposed to being rearranged.  In terms of review then I tend to the view of the ISW that there should be a more regular review of the arrangements and that on each occasion it should be a full review and there should be no automatic assumption that even if contact is progressing well that it should necessarily be extended or include additional sessions.

37.       I have considered carefully where contact should take place.  I have listened to what AL has said and also balanced her views against those of the social worker and ISW.  The arguments for contact taking place off-site are compelling, irrespective of the well-documented difficulties for staff at BH in working collaboratively with AL, a significant concern expressed by the ISW is that there needs to be restrictions on contact to prevent AL’s behaviour leading to future breakdowns in her son’s care home.  As the ISW states in her report the risk of setting up an unsustainable arrangement with AL to make contact with her son must be weighed against the risk of this resulting in PL facing the disruption and concomitant trauma of another move.

38.       The contact arrangements need to be proportionate in the context of a young man’s lifestyle and I accept the conclusion of the ISW that PL needs to develop a life which is not constrained by his contact with his mother.  Again in concluding that contact in a restricted form should take place off-site I am conscious that this court has made no detailed factual inquiry into what may or may not have led to the breakdown in the relationship between AL and staff at BH.  Nonetheless this matter has been fully considered by the ISW who has balanced the risks for PL in considering venue and firmly concluded off-site contact would initially be in his best interests. 

39.      At the conclusion of hearing evidence I gave an indication of the order the court was likely to make along the following lines:-

(1)       That it would be in PL’s best interests to reside at OL.    

(2)       That the transition plan should mirror those matters set out in the e‑mail of 21^st April from OL to PL’s social worker with the possibility of a slight revision to accommodate a further visit to OL by PL rather than an attendance by staff from OL at BH.     

(3)       That there should be no contact with AL or AB for an initial six week period to allow PL to settle in.               

(4)       That it would be in PL’s best interests to enjoy contact with his father AB on a monthly basis which accorded with AB’s wish of the frequency of visits.            

(5)       That contact with AL would be at an off-site location for a duration of up to two hours every week.        

(6)       That there would be provision for that contact to be terminated in the event PL became over stimulated or anxious.        

(7)       That there would be a full review of contact arrangements after the initial six week period, thereafter a further six week review with a three month review before moving on in accordance with the social worker’s proposal to a six month review and then annual reviews. 

(8)       In terms of contact there should be limit of the numbers who attend on family contacts in any event. 

(9)       That there should be some amendment and clarification to the schedule of additional terms as to contact annexed to the draft order from the Applicant council so as to provide for clarification at paragraph 5 as to where AL or indeed AB could direct their concerns and observations in relation to PL’s care and support and that there should also be further clarification of the terms “over stimulated or anxious” so that there were touchstones in place and a clear understanding of circumstances in which staff might bring contact to an early close. 

40.      I have now seen the proposed Final Order and Contact schedule, which for the reasons given I approve.

41.      May I also express my gratitude to the advocates in this matter Ms Khalique, Mr Im Thurm and Ms Davies.

 

 

 

 

 

 

 

    Dated this 15   day of  May  2015

…………………………………………..

DISTRICT JUDGE BELLAMY