Lancaster Road, PRESTON PR1 2PD |
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B e f o r e :
(Sitting as a nominated judge of the Court of Protection at Tier 2)
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BURY METROPOLITAN BOROUGH COUNCIL |
Applicant |
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EM (by her litigation friend, the Official Solicitor) |
First Respondent |
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MM |
Second Respondent |
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FM |
Third Respondent |
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EM: DEPRIVATION OF LIBERTY, CARE PLANNING & COSTS |
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Francesca Gardner (instructed by Simpson Millar) for the Official Solicitor on behalf of EM.
MM and FM appeared in person.
Hearing dates: 9th September and 9th October 2024
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Crown Copyright ©
HIS HONOUR JUDGE BURROWS:
INTRODUCTION
BACKGROUND: EMMA'S RECENT HISTORY
In general
Incidents
4 January 2024 | Absconded when being escorted by staff to A&E. Ran off and was found attempting to walk in front of cars. Police contacted. Ward staff utilised MVA holds to support her into back of police van. No holds required once they arrived back at the unit. |
5 January 2024 | Found headbanging in her room, verbally deescalated, wound cleaned and utilised 50mg promethazine. |
12 January 2024 | Found headbanging. Verbal de-escalation utilised. Wound cleaned and 50mg Promethazine given. |
Found headbanging in her room, was verbally re-directed from wall | |
13 January 2024 | Found Purging in bathroom |
Found headbanging in her room on the corner of a wall. Followed by unobserved headbanging. | |
16 January 2024 | Secreted ceramic plate from kitchen, took to ward, required holds to remove tied a tight ligature, ligature knife utilised which caused cut to EM's neck, due to resisting removal |
18 January 2024 | self harm with a razor, required dressing. Unwitnessed headbanging, EM found tearful and blood on her forehead and the wall. |
19 January 2024 | Several cuts to arms, dressing applied. Ligature later made from bandages which were applied |
20 January 2024 | Ligature with tights required cutting down. Following this headbanging with blood on wall reports over overdose of promethazine whilst on leave |
21 January 2023 | 00.30 Found in bathroom with ligature on her neck. Staff cut this off. |
01.00 Found headbanging in bathroom | |
Found on checks self-harming via cutting with piece of wood. Verbal de-escalation used. | |
. | Then proceeded to headbang, verbal de-escalation utilised to move away from wall |
22 January 2024 | Found in bathroom with tied unattached ligature. Staff removed |
Found in her bathroom with cuts to her legs from a piece of wood. Refused to turn over the item and have wound care. Lose arm holds applied to obtain the object. | |
23 January 2024 | On return from leave with mum became distressed, resisted coming back to ward, holds used to bring her safely back to the ward |
24 January 2024 | Headbanging on corner of bedroom wall, MVA holds used to move EM away from the wall and to move to sensory room for to de-stimulate. |
27. January 2024 | Ingested 120ml of body mist. Superficial cuts made using snapped piece of canvas. Headbanging, no response to verbal de-escalation, in holds/restraint for 1 hour. |
31 January 2024 | Restraint to prevent headbanging, IM Lorazepam x2. |
30 January 2024 | Headbanging in bedroom. PMVA intervention required. x2 1mg IM Lorazepam, x1 25mg. Promethazine IM. >2 hours in restraint. >5 members of staff for restraint. 4 lots of IM in <12 hour window. Mum handed in item of clothing that EM had cut, highly suggestive of a ligature |
12 February 2024 | Headbanging against corner of a wall – figure of 4 hold |
15 February 2024 | Self harm via cutting to neck and chest with unknown item used. Found on 1:15 checks headbanging against corner of bedroom wall. |
BACKGROUND: PROCEEDINGS
THE COURT OF PROTECTION PROCEEDINGS
4. Following the order being made on 15 July 2024 Emma's representatives have made extensive attempts to chase the necessary documents and ensure compliance with the orders. The following is a summary of the attempts made:
a. local authority was directed to confirm the parent's contact details within 48 hours of the hearing, this was chased on 19 July, and not received until 23 July – 6 days late.
b. A number of emails were sent requesting the social care records and original application documents. These were due to be filed on 29 July. The email correspondence sent included an email to the Head of Legal Services in the local authority, following several unanswered emails.
c. On 13 August, the local authority provided documents from the placement. The social care records were not included.
d. On 14 August a further request for the documents was made. No response was received.
e. On 16 August, a further email was sent requesting the document and reminding the local authority that the court directed the substantive witness statement to be filed by 5 August, and it had not been received.
f. On 19 August an email was received from CK (head of social care legal team), to say that she had allocated the matter to a new solicitor within the team, Patricia McCausland: 'she is back in on Tuesday and will be able to pick this up then.'
g. On 20 August, a further email was sent chasing the documents. The concerns on behalf of Emma were set out in detail, including the fact that within the documents that had been provided was a capacity assessment conducted on 2 August, which concludes that Emma has capacity to make decisions as to where she should reside. Emma's representatives had not been alerted to this assessment, or notified of its conclusion at the time. An urgent update was requested as to whether the local authority sought to rely on the assessment and an update of the local authority's position generally.
h. A response was not received until 29 August. The local authority invited agreement to vacate the hearing on 9 September to allow time for the local authority to comply with the order and to permit time for Emma's representatives to consider the documents.
i. On 3 September Emma's representatives again requested confirmation of the local authority's position and requested further assessments as to Emma's capacity to conduct these proceedings and to make decisions as to her residence and care.
j. On 4 September, the local authority provided a draft witness statement. It did not answer any of the questions that had been posed, it was not signed and it contained comments from the local authority's legal representative. It was not a completed document.
k. On the same date, following a further email chasing a response the local authority wrote as follows: 'The LA is working to file and serve documents at 6, 7 & 8 of the order dated 15th July '24, tomorrow plus the bundle.
l. On 5 September, the local authority served a completed witness statement, almost a month late.
I would add that the factual narrative above is not in significant dispute.
CAPACITY & CARE PLANNING
Capacity
[EM's] welfare checks, especially when she struggles to seek help. It's about welfare checks, 1:1 support (we cannot enforce support on her), the door would be locked. There has been a discussion, but it has not been formalised. She could have a key and leave the premises as long as she tells the staff. If she does not tell the staff, it would be a welfare concern for the manager. There is a framework around capacity but there is also a framework around supporting a vulnerable adult who has autism.
If the Judge was minded to remove the deprivation of liberty safeguards, we could work with that.
This is a young lady who is highly vulnerable and lacks social skills. Because of her autism, she is so fixed on DoLS, maybe it is better if she doesn't feel forced to do certain things.
She has made significant progress but there is work to be done for her to live somewhere with less restrictions. She was very clear that she was not ready to go home. She said that she would like to be somewhere with less restrictions. The restrictions she named were window restrictors…"
"The court will however note that [EM's] current placement will not be derailed if the Dols is withdrawn, their services can continue to remain in place without a Dols for EM until she attains the age of 25".
"Due to the [capacity?] assessment's findings, I have had conversations with the placement regarding EM's suitability to the service, if not subject to a Dols and the Local Authority has commenced a search for a less restrictive placement. I am mindful that sourcing the current placement was very difficult for children's services due to EM's complex presentation and risk history. At present one provider has come forward, who feel they may be able to meet EM's needs however this is an out of area provider."
"From the information provided by Dr Khan during the RTM it does not appear that the placement can manage EM in a way which would not be classed as restricting her liberties. Dr Khan suggested that "no restrictions" would be allowing EM out on her own but staff following behind her. As you will be aware this is still a restriction. They proposed stopping EM from leaving the premises if they feel she is dysregulated, which again is still a restriction. If EM was out of the placement on her own, they would expect her to text them every 5 minutes to confirm that she is safe. Again, this seems to be a restrictive practice. EM agreeing to restrictions when they deem she has capacity so that they can put in place restrictions for when she is dysregulated. Dr Khan referred to this as an advanced decision making.
"From the information provided by Dr Khan during the RTM it does not appear that the placement can manage EM in a way which would not be classed as restricting her liberties. Dr Khan suggested that "no restrictions" would be allowing EM out on her own but staff following behind her. As you will be aware this is still a restriction. They proposed stopping EM from leaving the premises if they feel she is dysregulated, which again is still a restriction. If EM was out of the placement on her own, they would expect her to text them every 5 minutes to confirm that she is safe. Again, this seems to be a restrictive practice. EM agreeing to restrictions when they deem, she has capacity so that they can put in place restrictions for when she is dysregulated. Dr Khan referred to this as an advanced decision making.
In light of what Dr Khan has said regarding how they would manage EM without dols, I have continued to look at placements which have a more "open door" policy for person's who live with them. At present there are 3 options and two of these are at the stage in the assessment process where they would like to meet EM.
It would be the local authority's view that another capacity assessment for EM would be unfair to her and not in her best interests. She has had two recent assessments and has engaged with both very well and found to have capacity on both occasions. There was no evidence brought by Dr Khan to the RTM, other than her verbal statement that "she should not be going to any other placement when the risks are so high" and that "I don't think she is ready to leave" (the placement).
"ON A DOLS"
COSTS
19.5 (1)
(a) the conduct of the parties;
(b) whether a party has succeeded on part of that party's case, even if not 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 matter;
(c) The manner in which a party has made or responded to an application or a particular issue;
(d) whether a party who has succeeded in that party's application or response to an application, in whole or in part, exaggerated any matter contained in the application or response; and
(e) any failure by a party to comply with a rule, practice direction or court order."
72. In any event, even though the Applicant did not follow the guidance in FG, and that should have been obvious to the Applicant at the time (rather than simply with hindsight), and no separate assessment of litigation capacity was undertaken, and the mental health Trust notes were not in the court bundle, I do not consider that it reaches the threshold where a costs order is called for on the facts of this case, whether it is described as "significantly unreasonable", or a "blatant disregard of the processes of the MCA", without treating these as legal tests which must be satisfied before a costs order can be made. The way in which this application was approached signifies substandard practice. Whether to make an application to the Court of Protection, and the appropriate timing of an application, is not just a clinical question, but one which also involves a legal judgment. The Applicant, in identifying the need for training in this area, recognises its actions on 21 October 2022 were inappropriate.
73. Although it is important to follow the guidance in FG, there is no suggestion in the case itself that breach of the guidance automatically justifies a costs order against an applicant. Something more is needed.
74. It is incorrect that the only way a court can express its disapproval of a party's conduct of a case is by making a costs order: it can be expressed in a judgment, and the court's views of the Applicant's actions in this case should be tolerably clear. Lieven J similarly voiced criticisms of the Trusts' conduct in University Hospitals Dorset NHS Foundation Trust v Miss K [2021] EWCOP 40 but there was no application for costs, or suggestion that one might have been justified.