England and Wales Court of Protection Decisions

IN THE COURT OF PROTECTION IN THE MATTER OF THE MENTAL CAPACITY ACT
SHEFFIELD COMBINED COURT

		13th / 14th July 2015

Background

1. KW is a 49 year old woman with complex needs. She has a diagnosis of learning difficulties, cerebral palsy, epilepsy and acquired megacolon. She requires assistance with all aspects of her personal care and relies upon support staff to maintain contact with her family and friends, arrange social activities and manage her finances. KW has significant mobility needs and uses a wheelchair.
2. KW moved from Merseyside to Lincolnshire with her mother in 1987. Until 2003 she resided with her mother at their family home in Lincoln. As a result of KW's complex needs and her mother's age (AW) and her own health issues, LCC provided a residential placement for KW at Conquest Lodge, Cambridgeshire between 2003 and 2009. KW subsequently moved to Priory Court Nursing Home in Lancashire where she resided between January and July 2009. In 2009 in order to be closer to DW (her sister) KW moved to M R London where she resided until the care home gave notice to terminate the placement in 2010.
3. Since 2010 KW has resided at her current placement, R H in South Yorkshire. A standard authorisation was given on 15^th August 2014 to end on 12^th February 2015, authorising her deprivation of liberty as being in her best interests.
4. DW objects to the deprivation of liberty and made the application to the Court of Protection on 5^th December 2014 pursuant to Section 21A of the Mental Capacity Act 2005 to challenge the purpose of the standard authorisation. The application was made on the following grounds:

(a) LCC failed to make an application to the Court of Protection (despite the recommendations of the Ombudsman).

(b) LCC failed to take reasonable steps to plan a move for KW to a more suitable placement, closer to her family and KW has suffered distress as a result.

(c) It is not in KW's best interests to be deprived of her liberty at R H therefore one of the qualifying requirements of Schedule 1A is not satisfied.

5. DW's application sought a declaration that it is not in KW's best interests to be deprived of her liberty at R H and sought permission to instruct an independent social worker to advise as to KW's best interests in terms of her future residence and care.
6. The application led to various orders and directions being made in December 2014 and January and April 2015. The Official Solicitor was appointed as litigation friend and LCC were also made a party to the proceedings. Provision was made for disclosure of social care and GP records, the instruction of an independent psychologist to report on KW's capacity and an independent social worker to report on her best interests, in relation to her residence, care arrangements and contact. The standard authorisation was further extended on separate occasions to 15^th July 2015. The final hearing was fixed for 13^th and 14^th July.
7. By their position statements filed prior to the hearing the parties outlined their case as follows.

Applicant:-

8. DW challenges the best interests requirement within paragraph 12 Schedule A1 MCA. The six requirements are

(a) The age requirement.

(b) The mental health requirement.

(c) The mental capacity requirement.

(d) The best interests requirement.

(e) The eligibility requirement.

(f) The no refusals requirement.

Paragraph 15 of Schedule A1 deals with the mental capacity requirement and states

"The relevant person meets the mental capacity requirement if he lacks capacity in relation to the question whether or not he should be accommodated in the relevant hospital or care home for the purpose of being given the relevant care or treatment."

Paragraph 16 deals with the relevant best interests requirement and reads as follows

"(i) The relevant person meets the best interests requirement if all of the following conditions are met.

(ii) The first condition is that the relevant person is, or is to be, a detained resident.

(iii) The second condition is that it is in the best interests of the relevant person for him to be a detained resident.

(iv) The third condition is that in order to prevent harm to the relevant person it is necessary for him to be a detained resident.

(v) The fourth condition is that it is a proportionate response to

(a) The likelihood of the relevant person suffering harm and

(b) The seriousness of that harm for him to be a detained resident."

9. DW is of the view that it is in her sister's best interests to move closer to her and considers a less restrictive regime may be possible in another setting. She prays in aid the support of DW's brother and her mother and father. DW seeks orders that:-

(a) It is in KW's best interests to move to London and

(b) That it is in KW's best interests to remain at R H as an interim measure pending identification of an alternative placement.

DW argues that the decision about which part of the country to live in is a best interest decision rather than a decision about provision of services which would be made on a public law basis. She maintains it is a decision which falls within the remit of Section 16 MCA and that if such declaration is made a search will then be undertaken for suitable accommodation (within relevant London boroughs or to the north of London) and that a transition plan be developed once a suitable placement has been identified. DW is committed to working constructively with LCC with this process.

LCC

10. It is accepted on behalf of LCC that more appropriate accommodation should be sought for KW. The central issue of dispute however is the location of such alternative accommodation. LCC pray in aid the report of the independent social worker alongside a statement by the senior social worker from LCC as to how the ISW recommendation will be put into practical effect.
11. LCC do not accept the court can make a declaration that it is in KW's best interests to live in London. They dispute the applicability of Section 37 of the Care Act and until either a local authority area is identified and the information set out in sub-Sections 4, 6, 11, 12 and 13 of Section 37 is known a best interests declaration cannot be made. In those circumstances as the only available option is KW's current placement the declaration sought by DW cannot be made.

KW

12. On behalf of KW the Official Solicitor puts his case succinctly as follows.

(a) The current placement meets KW's assessed needs.

(b) KW has expressed a consistent view that she wishes to remain at R H. There is no obvious reason why her wishes and feelings cannot be met.

(c) The need for a longer term placement needs to be considered by LCC at each review.

(d) The current placement at R H is in KW's best interests.

13. In relation to any determination of the issue whether the option of a move to London is excluded as an option before the court it is not argued the court is prevented from making that declaration the key question being whether that move is an available option.

Expert Evidence

14. Pursuant to an order made on 12^th January 2015 the report of an independent psychologist on the issue of KW's capacity was directed together with a report from an independent social worker (ISW) to report on KW's best interests in relation to her residence, care arrangements and contact.

Capacity Evidence

15. Mr Paul Hunt, chartered clinical psychologist, was instructed on 30^th January 2015 and his report is dated 2^nd March 2015. He was asked to provide an opinion on KW's capacity to conduct these proceedings, to make decisions as to her place of residence, make decisions as to her care arrangements and make decisions as to with whom she has contact.
16. Mr Hunt's conclusions were:-

(a) KW does not have capacity to conduct these proceedings as she is unable to understand, retain and weigh up the relevant information.

(b) She does not have capacity to make decisions as to her residence or required care arrangements. This does not however mean that her wishes and feelings should not be taken into account.

(c) KW does not have capacity to choose to leave the residential placement and keep company with whomsoever she wishes due to her vulnerability. However subject to the caring oversight of the staff, with the usual safeguards, KW can choose whom she wants to visit or to visit her.

17. In an addendum report dated 16^th March 2015 Mr Hunt clarified his opinion with regard to KW's capacity to make decisions about with whom she has contact.
18. As a result of KW's brain damage it is Mr Hunt's opinion that KW will not attain capacity to make any of the relevant decisions in the future.
19. Mr Hunt's report and capacity assessment was accepted by all parties. Accordingly final declarations were made in my order of 30^th April 2015 and these were not subject to challenge during this hearing.

Independent Social Work Evidence

20. Mr Chris Read was instructed on 30^th January 2014 and his report is dated 15^th March 2015. His addendum report, responding to questions, is dated 2^nd June 2015.
21. I do not propose to set out in detail the contents of his report suffice to say it is a thorough and extensive piece of work. In the process of preparing his report Mr Read met with KW on two occasions, the manager and team leader of R H, DW, AW (KW's mother), Lindsay Stewart and Gill Thomas of the Second Respondent, Mr KW (KW's father) and Sabi Akram (KW's advocate).
22. The thrust of Mr Read's recommendations were that it was in KW's best interests for her to remain at R H where she feels secure and wishes to stay. He recommended DW be encouraged to work with R H's staff and also have regular contact with KW. He opined the local authority should continue to explore alternative residential and supported living provisions for KW in Rotherham and the surrounding area.
23. In his addendum report Mr Read was invited to answer questions in respect of the timescale for any residential move. He strongly recommended that the search for alternative residential placements be kept within the Rotherham area in order to allow KW continuity in relation to her clinical support and social and recreational services. Mr Read's clear opinion was that until any further residential placement is identified it remained in KW's best interests for her to continue to reside at R H where the service continues to meet her needs.

Oral Expert Evidence

24. Mr Read is experienced in preparing reports concerning adults with learning disabilities, is familiar with the requirements of Schedule A1 and DoLs assessments. His experience and qualifications to prepare his report were not challenged. He confirmed that having read, somewhat late in the day, the statements on behalf of KW by the Official Solicitor, Mr Stewart for LCC and KW's family members (Mr KW and TW) that he did not wish to change his assessment or recommendation. He remained clear in his opinion that on a number of occasions in his discussions with KW and at times unsolicited KW had consistently expressed the wish that she remain at R H. Reference was made in particular to Sections 4.4.2 of his report (page F96), 4.4.14 (page F100) and 4.4.17 (F102).
25. With regard to the preparation of the best interests balance sheet (F130) Mr Read indicated that he would not wish to make any changes following receipt of and reading of the additional statements and that nothing had happened since the preparation of his report to cause him to alter his assessment. The only addition he might have made was to emphasise that contact with TW should be further explored.
26. Two further points were put to Mr Read namely

(a) Having regard to the consistency of the wishes and feelings expressed by KW were they capable of practical and pragmatic accommodation in the overall assessment of best interests? His reply was in the affirmative.

(b) He also acknowledged that this assessment would not have taken place without these proceedings having been started by DW.

27. With regard to reviews (F146) he confirmed there should be a regular focus on current placement and any available options with regard to ensuring the least restrictive option.
28. Mr Read was asked further questions on behalf of DW and LCC. He confirmed, in his view, the family link was very important to KW and that he fully understood DW's concerns which led to these proceedings being brought in particular due to the flawed assessment process and the conflicting capacity assessments.
29. Mr Read did not accept that the mere fact KW was interviewed at R H had a significant effect on her views nor did he accept that KW was simply stating what was expected of her. He was firm in his evidence that he had taken a balanced view of all the background circumstances the documentary evidence and his discussions with various members of the family. He reiterated that in his view it was clearly in KW's best interests to see members of her family on a regular basis save that KW was able to make her own decisions should on occasion she choose not to wish to see them.
30. When challenged about his balance sheet approach he maintained his view with regard to external activities available to KW and access to the wider community which he believed was reasonable. He maintained his belief that the Sheffield and Rotherham area were well-served for people with learning disability. He acknowledged the fact that KW's family was geographically dispersed (the Wirral, Burton on Trent, Lincolnshire and London); but was of the view that it would be an unreasonable expectation that any disabled person should necessarily move to follow the family.
31. When questioned about R H he agreed that while previously it had been in a state of evolution his current opinion was that it provided a sound service and whereas previously he may have had concerns he believed that KW benefits from the style and service from R H and it does suit and benefit her subject to the limitations set out in his report. Whilst there should be a regular review procedure consideration of a move should only be undertaken if there was something better and KW agreed to a move. R H should not be treated as an interim placement.
32. Mr Read believed that initial four monthly reviews would be reasonable and that both supported living and residential accommodation should be considered primarily within the Rotherham area.

DW

33. DW had filed a number of statements which were before the court.
34. It was very clear from those statements and from her oral evidence that there was a history of concern and lack of communication between the local authority responsible for her sister's care plan and herself and other members of her family. DW due to her parents' age had taken the primary role in dealing with those issues, challenging the local authority's regime, pointing out obvious failings by the care home as well as maintaining the link with her sister by regular contact. There was no doubt she cared greatly for her sister. The majority of the issues of concern arose from around the time of the move (without consultation) from Lincolnshire to Rotherham, the flawed assessment, the failure to abide by the Ombudsman's ruling, the failure to make application concerning KW to the court of protection and a lack of communication generally from the home and LCC over KW's care plan.
35. It remained her view that it would be in KW's best interests to find a placement nearer her home base in London the added advantage being that it would be easier for KW's father to also arrange visits.
36. DW accepted that she had never been fully satisfied with any of the four placements for KW and relied upon documented issues in respect of each.
37. She accepted she had not recently been to RH and that her contact with KW was generally at Meadow Hall. She believed there was a negative attitude towards her by the staff at R H simply because she had raised various issues of concern.
38. She believed those issues had been dismissed out of hand.
39. DW did not accept the conclusions of the ISW. She referred to the fact that she had her own experience in support placements (when she was working).
40. When challenged DW accepted she had no reason to believe that KW had not, of her own volition, indicated both to the Official Solicitor's representative, the psychologist Mr Hunt and the ISW that she wished to remain at R H and did not wish to go to London. However she was of the view that wherever KW was she would wish to stay and that KW was capable of saying whatever she thought people wanted to hear.
41. She indicated that since January of this year she had been looking to identify a suitable placement. Examples have been exhibited to her witness statement but none of the placements had a vacancy. She confirmed she wished to remain as KW's relevant paid representative but accepted if KW stayed in R H she could not be RPR and that due to the cost of travel, her mother's health issues and practical domestic issues she could not maintain regular long-term contact. It remained DW's view that she was not happy with how she had been treated by R H or LCC.
42. She maintained that the significant concerns highlighted in the grounds of her application (B12).

Lindsay Stuart

43. Mr Stuart had prepared two witness statements. He is the principal social work practitioner in the Sleaford and Spalding Learning Disabilities Team where he had worked since July 2011. He is the current line manager of Gill Thomas, KW's main worker and has been aware of KW's case since 2011.
44. He accepted that errors had been made in relation to KW in particular by not following the Ombudsman's request to refer matters to the Court of Protection, by not challenging inconsistent DoLs and capacity assessments and not seeking clarification of KW's capacity until court proceedings were underway.
45. He accepted the errors and lack of communication with regard to KW's initial move to RH which initially was seen only as a temporary placement. He was aware, for example, of the concerns highlighted in 2011 (D183). He was also aware of the concerns raised both by DW and on behalf of the family concerning the care KW was receiving.
46. With regard to contact by the family he was not aware that TW had ever visited KW but was aware of the disadvantages, caused primarily by location, for KW to visit his daughter or AW to visit her daughter and for DW to visit from London. It was he said local authority policy not to fund transport for contact.
47. When asked about a placement in London he indicated he could not comment until a specific placement or placements had been identified. He accepted the report of the ISW, the recommendations of that report. He agreed that on any future review available options of supported living or residential care would be considered primarily within the Rotherham area but did not rule out looking at any option which would give added value. In his words "why would we not?"
48. One of the difficulties he foresaw if KW moved closer to DW would be an increasing difficulty in managing KW and her care arrangements from a longer distance. Particularly in light of her known anxiety. In his words however the net was not closed and similarly with regard to support for contact he would give that further consideration.
49. There was a tacit acceptance that this case had highlighted the need for further review and learning by the local authority with regard to capacity assessments and the DoLs regime consequent upon the decision in Cheshire West. It may be that a review of the transport policy with regard to this specific case would be an equitable balance in light of the authority's failures particularly between 2010 and 2014 with regard to KW.
50. He accepted the ISW recommendation with regard to regular four monthly reviews which will be done by Gill Thomas.

Commentary on the Evidence

51. The evidence of Mr Hunt is non-controversial and declarations have been made with regard to capacity accordingly.
52. With regard to the evidence of the ISW in my judgment this is a comprehensive, well-balanced and objective report. Not only does it recognise and criticise quite rightly the local authority for its failings in the care regime for KW it also draws to the court's attention the initial concerns over R H but expressing the view many of those shortcomings have been overcome and while R H may not be the ideal placement for KW it certainly now is able to meet her needs.
53. Mr Read's evidence was clear with regard to the wishes and feelings expressed by KW which on one occasion at least had been offered unprompted. That of course may have been caused by the uncertainty in KW's mind of her placement following discussions with DW. The balance sheet approach was a careful and measured assessment which Mr Read could not be persuaded in cross-examination should be re-evaluated with greater emphasis on direct family contact.
54. There was within the evidence of DW an underlying thread giving the impression that she would never be happy with any of the care regimes in place for her sister and that in terms DW would seek a council of perfection. There is however no doubt that were it not for her intervention this case would not have come to court. There was clear evidence of a breakdown in communication and trust between the local authority, the care home and DW. Against that should be set the very obvious care and affection from DW to her sister and her wish to do everything possible to maintain her quality of life, care and accommodation. Nonetheless it was difficult not to draw a conclusion that a relocation of KW to London would significantly be in the interests of DW with no cogent evidence from her of the added benefits to KW.
55. For the local authority I again found Mr Stuart's evidence helpful and honest and his professional assessment had not been swayed or coloured either by the authority's failings in the past or a blinkered view of what was in KW's best interests. The significant concessions made in relation to review, the nature of the accommodation, and the transport policy particularly with regard to DW were welcome.

Discussion

56. This case is set against a history of failings by the local authority to fully understand and then act upon their duty under the Mental Capacity Act. There are abject failures from which no doubt lessons will be learnt. It may be, with hindsight, KW should not initially have been moved to R H and that there should have been more detailed discussion with family members and a wider search for an appropriate placement. KW requires 24 hour care and support within a service staffed by a consistent team that has knowledge and experience of supporting adults with a learning disability associated with physical health issues and emotional difficulties that lead to potential challenging behaviour (ISWF128). She requires a consistently provided care plan that includes appropriate behavioural support designed to enhance her independence and ensure her own emotional wellbeing and safety.
57. In relation to RH Mr Read's clear view is that this placement meets KW's assessed needs. In addition she has expressed a consistent view that she wishes to remain at R H and the local authority have agreed with Mr Read's recommendation that the need for a longer term placement will be considered at each review. The difficult issue is that of contact. DW's submissions are that the benefits of regular contact between her and her sister are such so as to adjust the balance sheet making the current placement at R H not in KW's best interests. There is no doubt that family contact and continued contact with DW are considered important matters by both the Social Work Team and the ISW. However I am not persuaded that this requires further weight to be given to the issue of contact so as to cause an adjustment in the balance sheet. There is one further practical difficulty with regard to DW's contention namely that a placement or indeed a geographic location of a potential placement has not been identified. To me this is the answer to the Section 37 Care Act point raised on behalf of DW. I accept the submissions of the Second Respondent that without a geographic area being identified it is impossible for the court to make a declaration with regard for example that it is in KW's best interests to live in London. I entirely agree that to make declarations based on a move to London or a move to an area geographically closer to DW run the risk of the court straying into the making of hypothetical decisions. There is no available option currently before the court (or indeed the likelihood of a further option in the foreseeable future) such as to permit the court to consider such declaration. (Re MN [2015] EWCA, followed).
58. I remind myself this is a challenge brought under Schedule A1 of the Mental Capacity Act 2005 to a standard authorisation. Section 16 of Schedule A1 sets out the best interests requirement. Section 4 of the MCA contains the provisions to be considered in making the best interests determination. I have made it clear that I accept the evidence of the ISW. It is a thorough and objective report. KW has also expressed consistently her wishes and feelings to which the court will give considerable weight.
59. RH the current placement on the evidence I have heard and read meets the needs of KW. There is no evidence that the care regime fails in such a way to require KW to be removed.
60. KW is settled and secure in Rotherham and the evidence is that she has developed her own lifestyle there with activities both within the home and in the wider community. This court could not be confident that a move to another location nearer DW would improve the working relationship between that home, the authority and DW given past history. In any event there are as I have commented earlier no other options or alternatives to consider.
61. In summary the current placement meets KW's assessed needs, it is in keeping with her express wishes and feelings and there is no other option available.
62. Accordingly the Section 21A challenge must be dismissed. As to the future then I note the commitment to a review process. I also note the willingness at least of the senior social worker to recommend a review of the transport policy. I commend and endorse such approach given that contact between DW and KW is seen as extremely beneficial to her. I would hope the local authority do what they can to facilitate a number of visits a year for DW and the family.
63. Finally it would be wrong simply to leave this matter without formally commenting that great credit should be given to DW for bringing these proceedings it being this court's clear view that had she not done so it is unlikely this case would have come before this court when it did or indeed at all. Hopefully significant lessons have been learnt by the authority for the future.
64. Finally in terms of the drafting of any order consideration should be given to attaching conditions to any subsequent standard authorisation in relation to the review.

Dated this 10 day of August 2015

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DISTRICT JUDGE BELLAMY