QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
B e f o r e :
|THE QUEEN ON THE APPLICATION OF JORGE RODRIGUEZ-BANNISTER||(CLAIMANT)|
|SOMERSET PARTNERSHIP NHS AND SOCIAL CARE TRUST||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MISS J RICHARDS (instructed by Bevan Ashford, 35 Colston Ave, Bristol BS1 4TT) appeared on behalf of the DEFENDANT
Crown Copyright ©
"The Trust believes that you should be enabled to live as independently and autonomously as possible, having regard to your needs. The Trust accepts that you require a significant amount of support, but considers that your needs will best be met by you living in an enabling environment which gives you the opportunity to access mainstream activities."
The defendant suggested two different units, one called Chy-an-Ross in Redruth, and another in Helston, both in Cornwall. Although the Trust would have preferred that the claimant be returned to Somerset, the claimant had made it clear that he preferred to remain in Cornwall. Since 28th March, Chy-an-Ross has been selected by the defendant out of the two possible units.
"The Trust has responsibilities towards a large number of service users and accordingly it has also had regard to the relative costs of the placements at Helston/Redruth and at Goonhavern. The placement at Goonhavern would cost £860 per week; a supported housing placement at Helston or Redruth would have no immediate cost to health or social services, as you would be able to access income support, housing benefit and any other benefits you may be entitled to. We are, however, committed to purchasing any extra supports, skills or training for staff you may require to ensure we address the requirements of Dr Williams and Dr Shah's reports. This would be in addition to the support you would get by virtue of your tenancy in the two respective housing options. However, whilst this factor has played a part in the Trust's decision-making process, it remains the Trust's view in any event that the option of supported living in Helston or Redruth is in your best interest."
"Jorge's 'breakdown' episodes are monitored and charted by staff at Spectrum. There has been an overall improvement in that the episodes are less frequent and also do not last as long as previously. The improvement is probably due to a number of factors: medication, structure, staff presence, supervision and programme of activities."
There have been episodes when he has wandered around the house naked even though female staff has been on duty. However, it is not thought to be due to any underlying sexual motivation, but merely a characteristic of his bizarre impulsive behaviour. The claimant needs thorough and effective proactive risk management and a high degree of support from staff. Not supported at this level, so Dr Shah writes, or in the absence of good risk management and staff supervision, the claimant would be unable to carry out the basic routines of daily living and be at risk in various ways.
"This is characterised by total breakdown of motivation and of carrying out willed voluntary actions."
Dr Williams does not believe that the claimant's behaviour is indicative of catatonia. The other difference between Dr Shah and Dr Williams relates to the claimant's capacity to participate in the decision-making process. In the words of Dr Shah, the claimant is unable to make any major informed decision about the level of support he needs and about the type of establishment that would meet his needs. Once the major decisions had been taken on his behalf then, according to Dr Shah, the claimant can be involved in giving his "preference about possible dichotomous choices".
"It is now quite clear that Jorge requires much more input than was envisaged, Jorge's independent functioning is at its optimum, any changes in provision would be detrimental to his functioning and well-being."
In January 2000 he wrote that Jorge was at his optimum functioning level, and a few months later he wrote that the ability to increase the claimant's living independently is remote.
"Since taking his medication staff have seen a remarkable improvement in Jorge and have started to see sides to Jorge that they had never seen before."
The report said that Hillside was very isolated and that it would be more beneficial for the claimant to be in a more centrally located house, closer to town, beach et cetera. Having set out Jorge's condition, the report went on to say that the claimant needs a safe and structured environment that is supportive and that protects him from possible exploitation and abuse. He has a high level of vulnerability due to the risk of self-harm by neglect and due to ritualistic and obsessive behaviour and low motivation. According to the author of the report, the claimant needs a property that meets the specified criteria under the Registered Homes Act 1984. Having set out what was thought to be needed to develop "independent living skills", the author in the conclusion wrote:
"... it is now thought more appropriate to move Jorge into a residential service which will allow him to be appropriately supported at times exceeding the 55 hours he currently receives."
The report reads on:
"Within a structured and fully supported environment Jorge would benefit from receiving consistently high level of staff support and supervision enabling him to enjoy a wider range of appropriate activities and opportunities and with a significant reduction in risk. In this type of service, he would be positively supported to enable him to lead a fulfilled life and to meet some of his personal aim/objectives."
The author then states that Spectrum was prepared to offer "an individually tailored residential service in Cornwall."
"(1) Mr Bannister's capacity to participate in the decision making process
(2) his current strengths and deficits
(3) his needs for specialised therapy
(4) the degree of support required regarding accommodation and activities of daily living, and
(5) what risk factors can be identified and how should they be addressed."
"Medication adherence can be established by developing regular habits of morning and evening taking of his tablets with monitoring by support staff working on the day rota and should be manageable within a supported living situation. As Mr Bannister is currently showing improvement associated with his new medication regime, it is important that this is attended to in his continuing care plan."
"[He] should have supported living accommodation with 24 hour staff availability - initially 8 hours day cover with 16 hours on-call cover - this should be kept under periodic review in discussion with Mr Bannister in the light of his changing needs and developing independence."
This of course was being written at a time before Redruth had been identified and, as I have said, the defendant is going to provide substantially more cover than that suggested by Dr Williams.
"However, the panel was unanimous in agreeing that Mr Bannister's needs would best be met in a supported housing environment rather than a residential care setting. The panel's reasons were as follows:-
"1. Mr Bannister would have the option to build on the skills he has learned in a safe supported environment.
2. A flexible package of support could be provided, which could be increased or decreased, as his individual needs change.
3. The risks identified by Dr Williams, Mr Forsey and Mrs Bannister could be managed in a supported housing environment.
4. Mr Bannister does not have personal care needs that require residential accommodation.
5. Supported housing can provide 24 hour on call support if required.
6. The panel recommended that the options for supported accommodation can be explored."
"Conclusions from Needs Assessment
Options for Care
1. To stay at the current accommodation, Hillside,
o Jorge remains in Cornwall
o Continues to live in known surroundings and known care team
o Independence maintained
o Jorge likes living, to a degree, where he is
o Spectrum (supplies) feel risks not adequately covered
o Isolation and aloneness
o Lack of social stimulation
o No local amenities
2. Move to a more supervised setting (Residential Care)
o Risks Spectrum feel covered
o Staff constantly available though not awake at night
o In a group living - peer support situation
o Remove independence
o Minimise personal space
o Reduces need to be self-responsible
o Not a forward move to independence
o Does not teach self-reliance
o Little opportunity to develop living skills/life skills
o Does not automatically eliminate risks
o All decisions made with someone
o Fosters dependence
3. Move to Supported Living
o Enhances living skills
o Maximises potential
o Integrates into local community
o Access to all primary care facilities
o Risks could be covered while taking some
o Access to all 'normal' facilities
o No opportunity to engender dependence
o Progressive with 'move-on' opportunities if appropriate
o Not staffed 24 hours a day - Dr Williams' report says not necessary
o Limited opportunities to find appropriate setting."
As to both of these disadvantages of supported living, there will be a member of staff on duty 24 hours a day at Chy-an-Ross, and the Trust believes that Redruth, found after this note was prepared, is an appropriate setting.
"Jorge needs to be within a residential service which is specifically for people with autistic spectrum disorders. He needs to be in a service where staff are trained and experienced in working with people with autistic spectrum disorders."
The report then set out various reasons why it was necessary for Jorge to be in residential accommodation. In paragraph j of 4.8, Dr Shah made a point, stressed during the hearing and agreed by both parties, that it is important to avoid insecurity.
"Spectrum has emphasised that Jorge would be at risk if he was on his own for significant periods of the day. This may be a significant factor, distinguishing residential care from supported living, and the Panel should consider the extent to which this risk is relevant and how it may be managed and the Trust will be providing individual support."
"The question of where best Mr Bannister's needs can be met hinges on whether his needs are of a personal care nature requiring hands-on personal care as provided in a residential care or prompting, supervision and encouraging and monitoring as provided in a supported housing environment.
From the description of Mr Bannister's needs it does not appear that he requires hands-on physical care for his personal needs which could only be provided in residential care. However, my personal experience of people in residential facilities catering for people with Aspergers Syndrome is that few do require this. What has generally prompted a placement in this type of resource is the need for 24-hour care/support due to risk factors indicating high risk to self or others.
Certainly Mr Bannister does not appear to me to fit the criteria strictly defined for residential care since the emergence of 'supporting people'. I do however agree with all of Dr Williams' list of needs and believe that any future placement should be sought which can provide a high level of daily support to Mr Bannister from staff with knowledge and expertise of Aspergers Syndrome and where he is living with other adults of a similar intellectual ability."
The note then refers to the support that would be needed and the need for a review, particularly if he were to become catatonic. In her last paragraph she wrote:
"I still feel he does not require residential care, but (and I know this is not for the panel to have a view on) I have a sense it is going to be hard to find a placement for him with all the other requirements, under supported accommodation."
"... the key to Mr Bannister's placement is the issue of prompting and supporting, versus hands-on care. It would appear that Mr Bannister responds well to prompts, support and monitoring and I am unsure if residential placement may in fact prevent him from continuing to have the degree of independence which he enjoys at present.
I therefore feel that any placement for Mr Bannister should enable him to enjoy independence while providing encouragement, support and monitoring. "
She ended by saying that if these things could be met under supported accommodation, then she felt that this would be beneficial.
"We are unaware of the range of supporting people accommodation in Cornwall. However, we all have knowledge of the range of supporting people accommodation in Somerset. There are two units which offer 24 hour support with 35 1:1 support for each tenant, either of these with appropriate training for staff, with input from Somerset Partnership Community staff could meet Mr Bannister's needs on the information that we have been provided."
As to the issue of catatonia, the panel referred in its letter to a point made by Mark Addison, a Counselling Psychologist. In a note dated 30th January, commenting on Dr Shah's assessment, Mr Addison pointed out that 24 hour on-site cover is not exclusive to residential care and can be provided through supported living. He questions Dr Shah's understanding of the supported living model. In paragraph 4 he wrote:
"Dr Shah has suggested that Mr Bannister's 'breakdown behaviour' may be indicative that he is at risk of developing catatonia. Dr Williams does not support this view. In view of the fact that Dr Shah has produced one of the key research papers on catatonia in Autistic Spectrum Disorders ... she may be best qualified to make this prediction in the absence of a generally accepted standardised diagnostic criteria.
Regardless of whether Mr Bannister's breakdown is indicative of catatonia or not, there is no known cause (or cure) for the condition, and presumably it could manifest itself in either supported living or residential setting.
Dr Shah proposes that a structured programme of daily activities ... will reduce the risk of catatonia. Once again, there is no reason why a structured programme could not be incorporated within a supported living package."
Dr Williams took a similar view.