QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST)
Strand, London WC2
B e f o r e :
|MERTON, SUTTON & WANDSWORTH HEALTH AUTHORITY|
|Ex parte G.P.|
|(by his father and L.F.M.P.)|
|Ex parte P. C. A.|
|(by his father and L.F.P.A.)|
|Ex parte C.H.|
|(by his father and L.F.K.H.)|
of Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2HD
Telephone No: 0207-421 4040/0207-404 1400
Fax No: 0207-831 8838
(Official Shorthand Writers to the Court)
MR DAVID HOLGATE QC & MR JAMES MAURICI (instructed by Capsticks, 77-83 Upper Richmond Road, London SW15 2TT) 1XE) appeared on behalf of the respondent.
Crown Copyright ©
PART 1: INTRODUCTION
"... that a programme of work should be put in place that would close Orchard Hill as a long stay hospital and, in conjunction with other stakeholders, provide the required range of community-based replacement services for the 119 long stay residents of the site."
PART 2: THE FACTS
"It was considered to be a world leader for provision for ill children. At its maximum the hospital provided 1,000 beds, 500 dedicated to mental handicap and 500 to other conditions such as cerebral palsey, tuberculosis and later spina bifida. I recall that the hospital was the largest children's hospital in Europe and was undoubtedly a centre of excellence. A lot of research was undertaken at the hospital into the causes of mental handicap and in my view has never been bettered in terms of the research facilities it afforded. The provision for the mentally handicapped children and young people was outstanding by current standards, providing wards and then 'houses' with much smaller numbers than had been previously accommodated on wards, with a reasonable staffing ratio and a significant involvement of therapists."
"Around this time life at home was exceptionally difficult. It seemed as though P. was tearing the house apart. There were bite marks on the doorframes and bannister rails. He would regularly chew up the curtains in the house. The curtains in his bedroom had to be changed every six weeks. It was very difficult to settle him at nighttime and he would regularly smash a number of windows in the house. I remember replacing the windows with progressively thicker glass. His behaviour was exceptionally destructive."
"I recall very clearly that Dr Kirman informed my wife that if P. went to Queen Mary's then he would not go to St Ebba's but would have a home for life at Queen Mary's. It seemed to me that he was obviously seeking to allay my wife's fears in view of the St Ebba's experience. He was also very aware of the stress that my wife was under and her blood pressure problems. We had shared with him the immense feelings of guilt we had in placing P. in a long-term placement.
We did not place P. immediately after that consultation with Dr Kirman but considered matters. We met further with our GP who continued to urge us to place P. at Queen Mary's. Eventually as a result of the immense pressure we were under at home and because of Dr Kirman's promise, we placed P. at Queen Mary's."
"I have worked with Dr Kirman for hundreds of hours and knew him very well. He was a very committed doctor, dedicating his life to the study and treatment of mental handicap. He was very caring and communicated a benign paternalism to staff and patients alike. I recall that for Dr Kirman Queen Mary's and subsequently Orchard Hill was the zenith of care for mentally handicapped people ...
I believe it highly probable (90 per cent plus probability) that Dr Kirman would have offered P.A. a home for life at Queen Mary's and then Orchard Hill. Such a promise would have been consistent with his views of the type of care required by someone of P.'s disabilities and of the excellent provision available at Queen Mary's."
"... four of the wards are being converted into Adult Residential Units. Two other wards have already been converted into an Activity Centre which the residents will be able to attend daily. Due to the high cost of conversions, it has been decided that future accommodation will be provided by demolishing existing wards and purpose building Residential Units specifically designed for the mentally handicapped. It is planned that eventually two streets, namely E Street and F Street, will be given over to this type of accommodation. The Residential Units, it is hoped, will become 'homes' rather than 'wards' in a hospital. To this end, this group of homes will become known as 'Orchard Hill' and the streets will become 'Russett Lane' and 'Bramley Lane', and will eventually have a separate entrance (and thus a different address) from the hospital. The nursing staff on those units will become more like house-parents and the domestic staff will also help to train the residents. To achieve a more homely environment none of the staff will have uniforms. It is hoped that with this new approach to the care of the mentally handicapped, the residents can be trained into the community or at least have the level of their standard of living raised. When the project has reached the end of the building stage, there will be about 200 beds in 'Orchard Hill'."
"The Chairman confirmed that the residents had a long term home at Queen Mary's and there was no question that they would be moved at the age of 19, unless the parents requested it."
"Since the early 1970s, national policy has recognised that people with learning disabilities, even those with severe and profound disabilities, mainly need social care. With social services being identified as the lead agency for planning and arranging the delivery of care for people with learning disabilities. The policy emphasis has been on developing small scale, local services and support in the community, and on resettling people from long-stay institutions into the community. Recent guidance from the Government has re-emphasised this policy direction, stating the principle that people with learning disabilities have the same rights of access to mainstream health services and other mainstream services as everyone else. Appendix 2 provides more details on the policy context.
Under the NHS and Community Care Act 1990, local health and social services authorities are responsible for assessing the health and social care needs, respectively, of their local populations and then purchasing the most appropriate services and support to meet these needs."
"When our sons/daughters were admitted to Queen Mary's it was only due to the fact that WE COULD NOT COPE WITH THEM AT HOME not that WE DID NOT WANT THEM.
We were all given an assurance at that time that they had a well caring Home for the rest of their lives. THIS GAVE THE PARENTS PEACE OF MIND AND RELIEF THAT, AFTER THEIR DAYS, OUR CHILDREN WOULD LIVE IN A WELL PROTECTED ENVIRONMENT, BUT STILL LIVE IN A COMMUNITY ATMOSPHERE."
"I am sorry that our consultation document has stirred up such a hornet's nest. It was intended to provoke discussion on the key issue of how government policy on care in the community and the properly organised resettlement into community settings of people currently cared for in long stay hospitals should best be pursued.
As you know, Orchard Hill has approximately 150 beds in 14 bungalows. For a long time there has been a policy of resettling those who wish to resettle and are suitable for resettlement. In addition it has been government policy for several years that children should not be cared for in 'mental handicap hospitals'. Orchard Hill has not been accepting new admissions for about 3 years other than to its specialist units, which have policies for limiting patients' length of stay ...
Resettlement as a policy and as a process for individuals must command the confidence of those involved. We are aware that sometimes people have reservations about the policy and that the resettlement of particular individuals is not a success (although for the great majority of people it is a great success). Clearly Orchard Hill could not close if there was not an agreed programme for the resettlement of its residents.
Equally, it is entirely appropriate that the RHA and the NHS and the local authority agencies involved in this field should continue to pursue government policy, which includes an overall presumption that most care will be provided in a community setting. A programme of appropriate and agreed resettlement will therefore continue.
There is no policy that 'Orchard Hill must be closed regardless of what people think'. If its residents and those who help them to exercise their rightful choices feel they wish to remain at Orchard Hill there will be a presumption that those wishes should be heeded unless the opportunity cost of meeting their choices became so disproportionate that, within a cash-limited service, it effectively curtailed the legitimate choices of other people with needs. We would also need to think carefully and discuss the issue with residents and those who care for them if we ever reached the point where agreed resettlement of residents reduced the size of Orchard Hill to such a point that it became non-viable. However such a situation is not imminent."
"The Merton and Sutton Community NHS Trust firmly believes that the future of services for all people with a learning disability lies within the Neighbourhood and Community Learning Disabilities Team concept. They have also stated that each person resident in Orchard Hill will be regularly assessed and moved only if it is demonstrably in their best interests and when they have expressed their agreement (in full consultation with relatives)."
"Also that evening representatives of the Trust would like to share with you their plans for the future of the service in which Orchard Hill is seen as a Centre of Excellence. You will recall that at the last Parents and Staff Association AGM held on 20th May, Carol Grant, Chief Executive, emphasised the commitment from the Trust not only to retain Orchard Hill but to develop it. The Trust wants to obtain your views and comments on how it sees the services develop in such a way that it provides for the very special needs of people with learning disabilities.
We know the anxiety that meetings can cause and therefore wish to reassure you that there is no intention to close Orchard Hill. The aim is to develop the service in such a way that it meets both current and future needs."
"There are no proposals to close Orchard Hill. Merton and Sutton Community NHS Trust, which runs Orchard Hill, is committed to remaining on the site and improving the quality of the environment for its residents."
"It was also clarified that although the Health Authority still acknowledged the particular needs of people with learning disabilities and their place as a priority group within the scope of commissioning, it was now clear that learning disability services were subject to as much financial rigour as any other aspect of the Health Authority's commissioning portfolio. Another major theme for the Health Authority was its relatively estate heavy position. The region was pushing health authorities to shed estate wherever possible and this would form part of MSW's approach to this issue. It also needed to be noted that even when the old long stay component was removed, Merton, Sutton and Wandsworth remained a high spender per capita compared to other health authorities on learning disabilities."
"It was not envisaged that the analysis would be used in any way to describe the services required by any one individual. It nevertheless required accurate assessment of each individual resident across 24 criteria.
The GDA was project managed by the head of the Psychology Department, Rosemary Armstrong. It was carried out by a psychologist, and, I think, two psychology assistants working under his supervision. They carried out the assessments by interviewing the care staff who cared for each resident. The reason for assessing individuals was to build up an overall picture of the kind of services and resources which would be required to meet the needs of residents in improved or new-style services. The work was subsequently validated on a sample basis (see below, paragraph 11)."
"There was a need to take into account the feelings of the residents when considering relocation. A number have known nothing but 'hospital style' care for many years and may not wish to be placed in a more 'domestic style' environment.
A guide as to whether clients were happy to be resettled was their behaviour when relocated elsewhere on the Orchard Hill site. Some found this distressing and very unsettling."
"This group are very severely mentally handicapped adults with multiple disabilities and varying physical, educational and social needs. They need care and protection from harm in their everyday lives. On average, they are about 40 years old with a mental age of 2 years and would not be able to live without 24 hour protection and supervision."
"In our view, the main advantage of the Orchard Hill site in its current form is that everything the residents need is there. At the moment there is no need to transport people to other sites to use services. We are very concerned that the proposed changes will result in services becoming fragmented, which we believe will be detrimental to residents and will result in considerably increased costs. We are also concerned it will simply not be possible for some of the services currently available to be provided in the community, and that, ultimately, the principle of improving services and enhancing individuals' quality of life will not be put into practice."
"... what the CHC would like to see is visible evidence that change is being driven by what is in the best interests of users, patients and the general public. The CHC recognises that it has long been a part of Government and NHS policy to move towards the closure of long-stay institutions and that Orchard Hill is one of the final sites for people with learning disabilities still remaining. The CHC broadly supports the philosophy of care in the community in preference to long-stay institutions, provided that the care is adequately funded and does not curtail or hamper services already provided.
It is recognised that there would be considerable difficulties in maintaining the status quo. As the number of residents declines, it would become more difficult to maintain the existing level of services on site. Some of the buildings would require considerable ongoing expenditure to repair and maintain to an acceptable standard. Without a major source of capital investment, the viability of the site will be increasingly challenged and it would be unacceptable for the residents to remain on a site that was in permanent decline. The CHC is continually frustrated by the difficulties that the NHS faces in securing major capital investment.
It is also recognised that the emergence of local Primary Care Trusts over the coming years will result in the gradual break-up of much of the newly-created South West London Community NHS Trust which currently runs the service. The future role of the Community Trust, if any, in the provision of services for people with learning disabilities has yet to be determined. Although the Health Authority expects to retain a strategic responsibility, it is clear that Social Services will increasingly assume responsibility for services for people with learning, physical and sensory disabilities. This responsibility will be yet further defined following publication of a London-wide and national strategy.
If changes are to go ahead as proposed, we take the view that it would be better to seize hold of all the opportunities (and minimise the threats) presented by change. The CHC has a continuing interest in how the change is achieved and, especially, in ensuring that the quality of life of the residents currently at Orchard Hill is improved to its full potential and not just maintained. The CHC's support for any developments is, and will continue to be, conditional upon this achievement."
"In the light of the consultation exercise and the ongoing planning work the Trust Board will support the closure of Orchard Hill as a long stay hospital to be replaced by a range of alternatives subject to the board being satisfied that
(a) The interests of the individual residents are safeguarded at all times and their quality of life ultimately improved through excellent care management, advocacy and contingency arrangements (should placements not work out)
(b) Sufficient funding is made available for the transitional costs to ensure (a) above and to ensure that the trust's other services and objectives are not put at risk."
- presents a summary and analysis of the responses, and draws attention to other developments that have taken place since the consultation was launched;
- recommends that Orchard Hill should close as a long stay hospital for people with learning disabilities, as proposed in the consultation document, with further detailed work being undertaken in line with the response of the Health Authority to the comments received;
- further recommends undertaking a number of other pieces of work in order to set the Orchard Hill project firmly in the context of wider strategic developments within South West London Community Trust and elsewhere."
"5.3. Some residents have also advocated the retention of the current campus, with existing buildings upgraded, on the grounds that Orchard Hill is not a hospital in the usual sense of the word, meets people's needs for round the clock care, and has/can have features associated with more positive forms of provision. Although there are some merits to this view, it is nonetheless a form of congregate provision that must be viewed as inappropriate in the context of modern policy for this client group. The current campus is poor and not fit for the next 10-30 years without considerable money being spent on backlog maintenance and raising standards.
5.4. NHS campuses generally offer less quality of life benefits than other forms of provision (when properly planned). The advantages offered by having services on one discrete site are therefore not, in this context, acceptable when set against the many disadvantages. The services that are intended to replace the existing ones would not only be built to a much higher specification (i.e. space, privacy and amenity), they would also be located in areas that were more likely to be attractive to future generations of service users and capable of flexibility in use.
5.5. Finally, it should be noted that there has not been any deliberate policy of allowing the Orchard Hill site or neighbouring NHS land to enter into a period of decline in order to provide justification for these changes, and every reasonable effort will be made to maintain the environment during any change process. Similarly, there are no financial motives for the changes being proposed now."
"It should be noted however that the above figures do not represent a fixed position and are only a set of opening planning assumptions. As assessments and care planning proceeds and the application of care criteria reveals more about the services needed to meet client need, the balance of provision may change and alter the requirements for new or replacement services. This is essential if the process is to be led as much as possible by the assessed needs of individual residents."
"1. ... that a programme of work should be put in place that would close Orchard Hill as a long stay hospital and, in conjunction with other stakeholders, provide the required range of community-based replacement services for the 119 long stay residents of the site ...
3. ... that this work programme should be project managed by the South West London Community Trust in close collaboration with the Health Authority and other stakeholders; and that the project should proceed on the basis of a close and continuing scrutiny of care standards, affordability, and national, London-wide, and local borough-based policy developments that offered the prospect of more equitable and consistent services for people with learning disabilities."
PART 3: THE PRESENT PROCEEDINGS
PART 4: DID THE RESPONDENT TAKE INTO ACCOUNT RELEVANT CONSIDERATIONS AT ITS MEETING ON 27TH JANUARY 2000?
(a) The promises previously made and the policy previously declared by the respondent's predecessors
(1) The PSA clearly and unequivocally drew attention to the promise of homes for life in its written response to the 1993 consultation. I have quoted the relevant extract in part 2 of this judgment. It should be noted that this passage in the PSA's response document was typed in bold, underlined and surrounded by a box. To give further emphasis most of the passage was in capital letters.
(2) The families of Orchard Hill residents are described as follows in the respondent's evidence:
"The families and carers of the residents were a disparate group and had problems organising themselves."
(3) The response of the PSA in November 1999 was drafted with professional assistance. The respondent generously engaged Miss Jane Harris, a consultant with Cordis Bright Consulting, to assist the relatives of Orchard Hill residents in responding to the 1999 consultation exercise. The response document which Miss Harris drafted is well-written and excellently structured. It offers a brief defence of the relatives' preferred option, namely to keep Orchard Hill as it is. The document then addresses the perceived political reality, namely that change is inevitable. A note of resignation seems to run through the document. The reason for this note of resignation may perhaps be gleaned from paragraph 5 of Mr McCallum's witness statement:
"I regularly expressed the view to relatives, in successive meetings, that managed change would be necessary in order to protect the welfare of the residents."
(4) There was no obligation on consultees to point out the statements of policy made by the RHA and the NHS Trust in 1993 and 1994. A public authority must be assumed to be aware of its own publicly stated policy. I have sympathy for the hard working administrators in the health service, who have had to deal with many reorganisations in recent years. As a matter of principle, however, health authorities cannot rely upon their own upheavals as a justification for departing from, or being ignorant of, statements of local policy affecting particular groups of patients.(b) A specific assessment of the condition and needs of the Orchard Hill residents
(1) All residents of Orchard Hill are currently under the care of a consultant psychiatrist. They are in receipt of health care from the NHS (see paragraph 13 of Mrs Gallagher's witness statement). Unless and until there is a proper medical assessment of the individual residents, it should not be assumed that three-quarters of them can cease receiving health care and can become the responsibility of social services.
(2) The psychological effect of uprooting this profoundly disabled group of people from the homes where they have lived for 20 or 30 years is a matter of importance. I do not, of course, say that it is decisive. But it needs to be assessed and understood before any decision about closure is taken. Neither the GDA nor the material before the health authority on 27th January 2000 gave any information about this important matter.
"101. The health authority also contended that the judge was wrong to hold that it was under an obligation to identify alternative placements for M.C. prior to the closure decision. Reliance was placed on the stages of the transfer procedure referred to above. It was submitted that the obligation to consider the options for where care might best be provided only arose at the third stage of the four-stage process. The new care setting for each individual patient was only identified at the fourth stage of the transfer process.
102. In our judgment the health authority's handling of the assessments and the finding of suitable alternative placement was not established as a separate ground for challenging the decision to close Mardon House.
103. The concerns of the health authority about the practical implications of the judge's decision on these two points are well understood. In the absence of special circumstances, normally we would expect it to be unrealistic and unreasonable, on grounds of prematurity alone, for the health authority in all cases to make assessments of patients and to take decisions on the details of placement ahead of a decision on closure. Neither the statutory provisions nor the guidance issued expressly require assessments to be made or decisions on alternative placements to be taken before a decision to close can be lawfully made."
"The large majority of people with learning disabilities not living with their families can be cared for in residential accommodation arranged through the relevant social services authority. There are, however, likely to be a small number of people with severe or profound learning disabilities and physical, sensory or psychiatric conditions who need long term residential care in a health setting. Where this seems to be the case a multi-professional assessment and consultation with parents or carers are necessary to determine whether the services they need can only be provided by the NHS or whether other alternatives would be more appropriate and cost effective."
(1) The existing premises at Orchard Hill are substandard.
(2) The health authority intends to improve the three bungalows which are retained and to improve other accommodation elsewhere, to which some residents may go.
(3) Some facilities will be retained on part of the Orchard Hill land. If it turns out that more bungalows are needed, then more can be built on the retained land.
(4) Wherever the Orchard Hill residents are accommodated, the current level of funding for them will be maintained.
(5) The effect of closing Orchard Hill as a long stay hospital is that a greater proportion of the current monies will be spent on patient care and a lesser proportion or estate management.
(6) The health authority will try to secure that the present Orchard Hill staff are employed at the various locations where Orchard Hill residents are relocated. (7) Once Orchard Hill residents have been relocated in the community, they will enjoy a less institutional style of life.
"If its [Orchard Hill's] residents and those who help them to exercise their rightful choices feel they wish to remain at Orchard Hill there will be a presumption that those wishes should be heeded unless the opportunity cost of meeting their choice became so disproportionate that, within a cash-limited service, it effectively curtailed the legitimate choices of other people with needs."
PART 5: WAS THE CONSULTATION PROCESS UNFAIR?
PART 6: THE ALLEGED MISAPPLICATION OF CENTRAL GOVERNMENT POLICY
"6.1. In the late 1960s there were 60,000 people with learning disabilities living in mental handicap hospitals, although many more people lived in the community, usually with their families. The 1971 White Paper 'Better Services for the Mentally Handicapped' was based on the shift from care in hospital to care in community. This policy was developed because there was an increasing concern about the adverse effects of institutionalisation and segregation and recognition that most people with a learning disability did not need to live in a hospital in order to have their health needs met. Hence there were two reasons for the hospital closure programmes that have successfully taken place for long-stay hospital residents. As a result there has been deinstitutionalisation with the development of a wide range of community facilities. There has also been demedicalisation with a move from a medical/treatment model to that of a social model of care for disabled people, with emphasis on their right to an ordinary life. However there has been concern that the emphasis on the social model has led to the neglect of health needs, which, even if extensive, can usually be met within a domestic-scale care environment if the right skills are available.
6.2. This good practice guidance reaffirms the commitment in HSG(92)43 regarding health authorities continuing to work with matching social services departments in planning the transfer of the remaining residents, and resources to support them, to the community by a mutually agreed date, with a view to closing the old mental handicap hospitals as quickly as practicable. In 1997 there were less than 3,000 people waiting to move out of NHS care.
6.3. It is expected that over the next two to three years the people still living in these hospitals will either transfer to specialist NHS provided care (reprovision) or to live in community settings often with NHS specialist input (resettlement).
6.4. It is strongly recommended that any work relating to reprovision of hospital services or the development of new community services is carried out jointly with partners from the local authority, the independent sector, health service providers and with a strong input from users, relatives and careers."
PART 7: CONCLUSION