Bournemouth Borough Council v PS (1st Respondent) DS (2nd Respondent)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 11 June 2015 |
| Neutral Citation | [2015] EWCOP 39 |
| Date | 11 June 2015 |
| Court | Court of Protection |
| Docket Number | Case No: 11537855 |
[2015] EWCOP 39
COURT OF PROTECTION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Mostyn
Case No: 11537855
Sian Davies (instructed by Bournemouth Borough Legal) for the applicant
Mark Mullins (instructed by Conroys) for the first respondent
The second respondent was not represented
Hearing date: 3 June 2015
In this case I have to decide (i) whether the package of care provided to BS ("Ben") is in his best interests; (ii) whether that package amounts to a deprivation of liberty within the terms of Article 5 of the European Convention on Human Rights 1950; and (iii) what contact Ben should have to his mother, the first respondent.
The application was made by the applicant local authority on 13 February 2015.
I heard full argument from counsel for the applicant and for the first respondent. The second respondent, Ben's brother, did not participate in the final hearing.
At the commencement of the hearing I determined the question of the participation of Ben in these proceedings. On 16 February 2015 District Judge Susan Jackson joined Ben as a party to the proceedings and invited the Official Solicitor to act as his litigation friend. The Official Solicitor declined to do so.
By virtue of COP Rule 2007 rule 141(1), as presently in force, Ben, as a party lacking capacity, is required to have a litigation friend. By virtue of great frugality Ben has accumulated appreciable savings from his benefits. It was foreseeable that were Ben to have a litigation friend who instructed solicitors and counsel, his savings would soon be consumed in legal costs. In my own order of 17 March 2015 I caused a recital to be inserted recording my concern that his means should not be eroded by legal costs. That same order recorded that Ben would be referred to the IMCA service for the appointment of an IMCA. That has duly happened and I have had the benefit of a helpful report from the IMCA, Katie Turner, where Ben's wishes and feelings are clearly set out.
In Re X (Deprivation of Liberty) No. 2 [2014] EWCOP 37 [2015] 2 FCR 28 Sir James Munby P at paras 12 – 15 and 19 explained that Article 6 of the 1950 Convention required that a protected person should be able to participate in the proceedings properly and satisfactorily with the opportunity of access to the court and of being heard, directly or indirectly, in the proceedings. However, these standards did not necessarily require that the protected person should be a party to the proceedings. There was no obstacle to the protected person participating in the proceedings without being a party.
This ruling has been put on a statutory footing by a new rule 3A to the COP rules. This permits the protected person's participation to be secured by the appointment of a non-legal representative. However this new rule does not take effect until 1 July 2015, some three weeks hence.
In the circumstances, in what I suppose will be one of the last orders of its kind to be made, I directed that Ben be discharged as a party. I was wholly satisfied that his voice has been fully heard through the IMCA Katie Turner. Further, in relation to the question of deprivation of liberty, all relevant submissions have been fully put on both sides of the argument by counsel for the applicant and the first respondent.
There was no dispute between the applicant and the first respondent concerning issues (i) and (iii). The argument was centrally about the question of deprivation of liberty.
Ben was born on 12 February 1987 and is now aged 28. He is diagnosed as suffering from autistic spectrum disorder and mild learning disability. The first statement from the social worker, Mr Morrison records how he needs continuous care, in the following terms:
"Ben has a diagnosis of autism with associated severely challenging and dangerous behaviour including damage to property, physical injury to others, self harm and inappropriate sexualised behaviour. He also has significant impairments of social interaction and communication with others. He is at risk of self neglect because he lacks insight into his care needs and the need to maintain his medication. Ben would not be able to care for his physical and mental health needs without support as staff need to prompt him to undertake all personal care, to get out of bed at an appropriate time in the morning, wash his hair and help in maintaining his personal and dental hygiene."
A report from Dr Hannah Kiddle, a Highly Specialist Clinical Psychologist, dated 24 February 2012 determined that Ben did not have the capacity to make an informed choice about where he lives. There is no doubt that for the purposes of the Mental Capacity Act 2005, sections 2 and 3, Ben lacks capacity in all relevant respects.
In 2000 Ben moved with his family to Bournemouth from Wales. In 2002 care proceedings were commenced by the local authority, and in 2003 a final care order was made. Ben was placed in a number of institutional placements culminating in a placement in 2006 at the Finigan Unit Hospital (which has since closed). In February 2006 in proceedings under the inherent jurisdiction Macur J made an order declaring that Ben lacked capacity to determine where he lived; that it was lawful and in his best interests that the applicant should arrange accommodation for him; and that contact to his mother should be as prescribed therein. Further, orders were made against Ben's mother prohibiting her from disturbing Ben's placement.
In 2011 Ben moved to his current accommodation in Bournemouth. This home is described, and the regime that Ben experiences in it, by Mr Morrison as follows:
"This is a 2-bedroom bungalow with a garden. He lives there on his own and has staff with him in his home for 365 days a year with 24 hour waking night staff attendance provided by Dorset Healthcare University NHS Foundation Trust Domiciliary Care Agency. Ben is subject to constant observation and monitoring and is provided with minimal personal care when he is in his home.
He is encouraged to engage with a timetable devised by staff to ensure all daily tasks are completed within the appropriate times of the day. Ben has difficulties in engaging with the agreed tasks as he invariably declines, and reverts to wanting to go back to the arrangements of previous institutional settings where everything was done for him.
With support, he uses local transport and is involved in doing his own shopping for food and other consumables. Ben needs staff support to encourage him to get out of bed in the morning as he is likely to stay in bed till 12 noon if left. This is managed on a one to one step by step basis. Ben also needs encouragement from the staff to complete his personal care tasks. He has difficulties effectively cleaning himself when in the bath and includes washing his hair. He also needs hands on support to clean his teeth. Without this personal support Ben would neglect his personal care needs putting his health at significant risk of harm.
Ben does not have access to the kitchen when cooking is being undertaken by the staff as there have been some incidents of him putting himself and others at risk. The incidents have included the inappropriate use of the microwave, putting hot water on an electric kettle base, and all kitchen utensils are in a locked cupboard due to a past incident of him using a pair of scissors as a weapon; he has demonstrated little understanding of the risks associated in the kitchen. The kitchen is therefore locked by a staff member during cooking. Ben is able and does access the kitchen at other times and the care and risk management plan has determined Ben needs staff attendance at all times in the kitchen. Ben has minimal evening or night needs and generally sleeps through the night but on occasions requests staff support if he is unable to sleep. It has been assessed as Ben requiring a waking staff member to support and respond when the need arises to maintain his safety.
Ben's medication is managed and administered by support staff which he accepts and is compliant with the arrangements. The medication is in a locked cupboard managed by staff as Ben has no understanding of the need for his medication and why he is required to take it to maintain good health."
In his oral evidence Mr Morrison elaborated a little on this and explained that Ben certainly does have some privacy. If a staff member is locked in the kitchen he has free unsupervised access to all parts of the bungalow and to the garden. Ben has sexual needs and he is given complete privacy to masturbate in his bedroom when he wishes to do so.
There are no locks on the doors but there are sensors which would alert a staff member were he to seek to leave, although he has never tried to do so. Mr Morrison explained the situation as follows:
"The property is such he is in theory able to leave his home on his own volition. Since he has lived at his bungalow he has never left of his own accord or verbally requested to leave without staff. However a door alarm is in place which would alert staff should Ben attempt to leave without staff attendance. If Ben were to leave the property without this having been arranged by staff they would quickly follow him, attempt to engage with him, and monitor him in the community. Ben requires one to one staff support at all times in the community. If he decided he didn't want to return to his home, staff would firstly verbally encourage him to return, if this proved unsuccessful the Manager of Ben's care agency would be contacted and they or another staff member would arrive and assist. If this proved unsuccessful further advice, support and attendance by Crisis Team and Social Services for crisis management would be sought and...
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