QUEENS BENCH DIVISION
London, WC2A 2LL
Wednesday 13 February 2002
B e f o r e :
| THE QUEEN ON THE APPLICATION OF
(1) 'C' (by his litigation friend the Official Solicitor)
(2) 'M' (by his litigation friend the Official Solicitor)
(3) 'P' (by his litigation friend the Official Solicitor
(4) 'HM' (by her litigation friend the Official Solicitor)
|- and -
|BRENT, KENSINGTON AND CHELSEA AND WESTMINSTER MENTAL HEALTH NHS TRUST
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Nigel Pleming QC and Gerard Clarke (instructed by Messrs Radcliffe's for the Defendants)
Crown Copyright ©
Mr Justice Newman :
(1) Did the trust promise three of the claimants (C, P and HM) that they could remain at Harefield Lodge for the rest of their lives?
(2) Did the trust breach an obligation to consult with the claimants about the proposals for the future of Harefield Lodge?
(3) Did the trust assess and take into account the needs of the claimants when determining the future of Harefield Lodge, and the placement of the claimants?
(4) Is the trust's proposed course of action a breach of the claimants' rights under Article 8 and/or Article 3 of the European Convention of Human Rights?
As to Article 3, it can be noted that in the course of argument Miss Richards, counsel for the claimants, elected to abandon the argument. She was plainly right to do so, but its late introduction into the case calls for some comment to which I shall come later in this judgment.
Legitimate Expectation - the 'Home for Life' Issue
"28. Importantly, before Mr [C] first moved to Harefield Lodge from Shenley Hospital in l994-5, he was told that this was "the last place [he] would have to come to", according to Ms Maureen Beeken, the previous manager of Harefield Lodge. Ms Beeken also told him that he would be "dying here", as this would be "his final resting place and he would never be moved again". Mr [C] also received a card from Ms Beeken and the staff at Harefield Lodge which "wished him much happiness in his new home".
29. It is clear that Mr [C] regarded these unequivocal statements made by the previous manager as confirmation that Harefield Lodge would be his home for the rest of his life. The card merely confirmed that which he had been told, namely that Harefield Lodge was his home. It is clear that he has relied heavily on the promise of a home for life, as a decision to close Harefield Lodge had distressed him greatly."
"44. Before Mr [M] moved to Harefield Lodge from Fairlight Road, he was very reluctant to transfer to yet another establishment as he had undergone so many moves in his life. He was persuaded to move to Harefield Lodge when he was promised in late l999 that he would be moving to "a permanent home", namely a home for life. He was told that he would not have to move again.
45. Mr [M] states that he was given the assurances by the psychiatrist responsible for both Harefield Lodge and Fairlight Road, Dr Paternoster. He states that he had no reason to doubt the sincerity of her statement. Had Mr [M] not been assured of a home for life, he would not have agreed to move to Harefield Lodge at all and would have objected strongly to yet another move. He recalls that other staff may also have confirmed the promise, including the previous manager of Fairlight Road. The promise given by Dr Paternoster in conversation with Mr [M] was witnessed by at least one member of staff."
"61. Mr [P] states that when Shenley was closing he was led to believe that Harefield Lodge would be a home for him for the rest of his life. He was given this assurance by Maureen Beeken, the previous manager at Harefield Lodge. The promise was also reiterated by other staff at Harefield Lodge. He was very worried about leaving Shenley and moving to Harefield, but once he had been assured that it was permanent and had actually moved, he liked the facility very much."
"He has told me that throughout the entire process, all those involved from a clinical and management viewpoint expected and endorsed a "home for life" promise philosophy."
A little later she stated:
"Dr Jeffreys was completely clear in stating to me that the message given to patients was that they would not have to move again."
In a third affidavit dated l0 May 2001 she provided more material in response to the denial that Dr Paternoster had ever given a promise to M. She stated that the promise had been given in the presence of a member of the nursing staff, who had expressed concern about the conflict of evidence and was fearful of her identity being revealed because there may be disciplinary consequences for her and her employment could be put at risk.
"Miss Mackintosh is inaccurate to state, paragraph 7, that I was involved in the whole closure of Shenley Hospital."
Further, he states:
"With regard to the reference at paragraph 10 of Miss Mackintosh's statement, I do not recall stating that the "home for life" promise and expectation was explicitly part and parcel of the philosophy of the process in closing Shenley. Indeed, the reference to a "home for life" is not the terminology that I recall being used in the early l990s, even though it has now become a popular term. I believe that I stated there would have been an endorsement to a continued commitment to establish a quality of life for the patients who were to be moved to new accommodation. It would have been a promise to support their best clinical interests."
"I am aware that C and P allege that I said Harefield would be their home for life. I can confirm that I did not say this, as I knew that it was not the case."
She says at the end of her statement:
"In order to support the clients through the difficulties encountered by their re-provision scheme, information was always given with the assurance that the Trust and health authority were committed to the long term provision of care to meet their individual needs. However I did not at any time, suggest to the clients that Harefield Lodge was intended to be a home for life."
"Although I have no specific recollection, I may have suggested to M that he would be entitled to receive care throughout his life, in view of his psychiatric condition."
I have no doubt that M, having had a series of what could be regarded as short term changes, which were required for his clinical benefit, had reached a stage where he desired not to be moved frequently, but as with his past, and as with all such patients, where clinical needs give rise to a need for a different placement, then a change in placement will occur. Where a need for long term permanent care is anticipated and there is a pattern of changing clinical needs, the primary relevant legal obligations arise in connection with the patient's needs. The only words attributed to Dr Paternoster which are relied upon as giving rise to substantive obligations in law outside the context of clinical need, are the words "permanent home". In my judgment they cannot support the case advanced for M. On the evidence I am unable to conclude that any promise or assurance of a home for life was given to M.
Conclusion on the "Home for Life" issue
The Claimants' alternative argument - a clear legitimate expectation of a permanent home
"I attended community meetings and had many informal discussions with clients, reinforcing that the Trust still hoped to proceed with Norton Road and if this did not happen, another more permanent location would be identified."
Miss Richards relies upon the Trust's plans and its evidence to support the alternative argument. But none of it, in my judgment, can give rise to an assurance that either Norton Road or Harefield Lodge or some other facility would always be available to the patients as a permanent home As I have already pointed out, 11 patients moved from Shenley to Harefield Lodge. Only three remain, the others (save one who died) have been moved. In any event,. the character of the home to which a patient is sent does not, for the purposes of the law, determine what an authority responsible for a patient's care can decide as to another placement. Placement decisions must be dictated by the patient's best interests and perceived needs, which will have to be taken in the light of available resources. There is nothing in the alternative way in which the case has been put. However, again I emphasize, that having regard to the period of time which the claimants had spent at Harefield Lodge, and having regard to the success and level of care which they had enjoyed there, I have no doubt that when they were asked to move they were reluctant to do so. But this aspect of the matter naturally leads me on to the case for the claimants, which has been based upon a failure to consult and a failure to properly assess and take into account their needs.
"Following a major review of the rehabilitation services within Brent, the Brent Management Team has identified Harefield Lodge as a second facility for intensive rehabilitation .... The needs of the present client group is under review and their needs will no longer be met within Harefield Lodge."
The Trust met on 28 July 2000 and decided that "Harefield Lodge would best serve as a second facility for intensive rehabilitation .... open to patients at Park Royal."
Was there a duty to consult?
she submitted they have enjoyed a benefit or advantage and can legitimately expect that before being deprived of it, they would be consulted.
The failure to carry out proper assessments
"Considering his good level of functioning, C is being considered for less supported accommodation, firstly in early l999 as it would have been beneficial to his daily functioning to be in a less supported environment, to be able to use his skills more and improve his independence, even with all the support needed."
Dr Paternoster also states:
"In my opinion a move from Harefield Lodge is in the patient's best interests because C is able to function in a less supported environment. Therefore if the right level of support and supervision is provided a move would be beneficial to his rehabilitation programme."
The Claimant M
"His mental state has improved and M could be discharged from Section 3 of the Mental Health Act l983. His compliance has remained good since allowing us to consider a less supported environment. A move from Harefield Lodge will not adversely affect his mental state, with a package of care that offers support and supervision as needed. All the options offered to M took into consideration Mr M's needs and risks involved to ensure that the alternative accommodation would not adversely affect his mental state or condition."
After that statement was made, in a letter dated l May 200l, M was again detained under Section 3 of the Act, but by the date of the hearing had been released. So far as the Trust are concerned it is now their position that they would make final decisions in relation to M's placement only when the outcome of the judicial review application was resolved:
"If the closure proceeds, there will be a need to identify suitable accommodation options which would provide Andrew [?] with adequate support, whilst also enabling him to build upon the progress he has made in recent months, in respect of independent living skills."
The claimant HM
"We could predict that HM would be able to live more independently and a major problem was the difficulty for HM to engage in this plan. Also HM's co-operation has improved both in her pharmacology treatment and her rehabilitation programme. A move from Harefield Lodge would be in the patient's best interests, considering that living in less supported accommodation with the right level of support and supervision would help HM to use more of her daily living skills. The move from Harefield Lodge would not adversely affect her mental state unless unforeseen circumstances arise. The alternative accommodation offered to HM has considered her needs and risks involved and the care package considered took all these elements into consideration to avoid adverse effect on HM's mental state or condition."
The claimant P
"P's level of functioning has been fairly high and he would not have required a 24 hour in-patient setting considering his daily living skills ... Several attempts have been made since l998 to look for less supported accommodation, which has been offered to P. A major barrier remained the poor compliance with treatment. In the last few months P's insight into his need for medication has improved and he is now taking his medication and consenting to treatment. It would in fact be in P's best interests to be in a less supported environment and to be able to use his daily living skills and to continue his improvement. The move from Harefield Lodge would be in the patient's best interests and the alternative accommodation identified had taken into consideration P's needs and the risks involved."
There are, in relation to each of the claimants, more recent assessments. As I have stated, M was last detained under the Mental Health Act in July 200l.
"Difficult and agonising judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients. This is not a judgment the court can make."
Decisions in connection with the treatment of the mentally disturbed will frequently be difficult and may have to be taken against expressions of resistance by the patients. Although Miss Richards disavowed the suggestion that she was inviting the court to choose between medical assessments or to subject the quality of the assessments to the court's judgment, in my judgment, on analysis this is what the thrust of the argument invited. With her characteristic attention to detail she provided the court with a tabulated summary of the assessments, with her comments, in support of the argument that the risks in connection with moving the claimants from Harefield Lodge had not been considered and the present proposals in respect of each were unsuitable.
"Whilst the plans that the Trust has for Harefield Lodge may well be very sensible as regards the pressure on acute admission beds, I believe there is no doubt that in respect of the four patients who are resident at Harefield Lodge, their bests interests would be served by remaining in that setting, but even more importantly remaining with the staff group who have cared for them for a number of years.... In the event that it is deemed not possible for Harefield Lodge to continue in its present form, then in my opinion the next best option is to attempt to replicate as many elements as possible of Harefield Lodge in another unit... In my opinion, in the event that the patients are removed from Harefield Lodge against their wishes and transferred to placements to which they object, then for at least three of the four patients, there is a high risk of significant deterioration in their mental state, such that they will require re-admission to hospital. In all likelihood this would mean re-admission to an acute ward."
Dr Vince records that he saw M on two occasions, on 3 October 2001 and 30 October 2001. It is plain from Dr Vince's report that he discussed the "home for life" issue with M, whether or not he wished to move from Harefield Lodge, why he had progressed so well at Harefield Lodge, how he had fared at other places, for example at Fairlight. He had a discussion with C, which covered similar territory by way of subject matter, but his report also covers detailed discussions with C which have no bearing upon this part of the case. He had a discussion with the claimant P, again on similar topics. He even went through the report of Miss Bedeau with P. At this P became, according to his report, very aroused, angry and agitated and what he perceived as gross misrepresentations, if not lies, about his position. P went on to state to Dr Vince that he had never expressed a wish to move to St Gabriel's. So far as HM is concerned, she said very little. She remained in the room for about three or four minutes. When he asked her whether she found the whole business of being moved out of Harefield Lodge too difficult and distressing to talk about, she nodded. HM then left the room, saying she did not wish to talk to anybody about the matter.