C (by his litigation friend, the Official Solicitor) Blackburn with Darwen Borough Council v A Care Home and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Peter Jackson |
| Judgment Date | 15 December 2011 |
| Neutral Citation | [2011] EWHC 3321 (COP) |
| Court | Court of Protection |
| Date | 15 December 2011 |
| Docket Number | Case No: COP 1205016 |
[2011] EWHC 3321 (COP)
IN THE COURT OF PROTECTION
Preston Combined Court Centre
The Honourable Mr Justice Peter Jackson
Case No: COP 1205016
and
and
Ms Barbara Hewson (instructed by Maxwell Gillott on behalf of the Official Solicitor) for C
Mr Jonathan Butler (instructed by Legal Services) for the Local Authority
The Care Home did not appear and was not legally represented
Mr Simon Burrows (instructed by Hempsons) for the Care Trust
Hearing date: 6 December 2011 Judgment date xx December 2011
Introduction
Mr C is a single man aged 45 who lacks capacity to litigate or to make decisions about where he should live. The application made on his behalf under s.21A Mental Capacity Act 2005 ('the MCA') on 11 June 2011, is for the discharge of a standard authorisation dated 23 January 2011 under the MCA Deprivation of Liberty Safeguards ('DOLS'). That authorisation was sought by the managers of the home in which Mr C lives ('the care home') and was granted by his local authority ('the LA') as supervisory body.
The application under s21A directly raises the question of whether Mr C is being deprived of his liberty and, if he is, whether this is necessary. The proceedings also indirectly raise a wider question about the jurisdiction of the Court of Protection in relation to a person who, like Mr C, is subject to a guardianship order under s.7 of the Mental Health Act 1983 ('the MHA').
Background
At the age of 4, Mr C was knocked down by a bus. It is not clear whether this had long-term effects but it is the case that he subsequently attended a school for pupils with learning difficulties. After school, he worked for ten years in his father's business. After the death of his father, he continued to be supported by his mother and two sisters.
In February 2000, when living in a hostel, Mr C fell off the roof and suffered a severe brain injury for which he required surgery, following which he developed epilepsy. He lived in warden-controlled accommodation until moving in February 2008 to a rehabilitation unit for people with brain injuries. In May 2008 he was detained for five weeks under s.3 MHA after attempting to kill himself by strangulation. In June 2008, he moved into another unit as part of a community integration programme, before returning to the rehabilitation unit in December 2008. There he made a second, similar suicide attempt and was again detained under the MHA. In April 2009, he bought a large knife and called an ambulance, saying that he was going to kill himself. In May 2009, he made several further attempts to harm himself, including by self-strangulation.
In June 2009, Mr C's MHA detention came to an end and in October 2009, he went abroad for a month. On his return in December 2009, Mr C was admitted to the care home where he has now lived for two years.
In June 2010, the LA made an application for guardianship, following which Mr C made a further suicide attempt. On 25 June 2010 he was made subject to the guardianship of the LA for 6 months under s.7 MHA, the criteria for which are that a person suffers from a mental disorder of a nature or degree which warrants his reception in guardianship and that it is necessary in the interests of his welfare or for the protection of other persons.
In November 2010, Mr C again went abroad for about a month without the LA's knowledge. On 20 December 2010, the guardianship was renewed for a further period of 6 months.
In January 2011, the police were called after Mr C had kicked down a door when trying to leave the care home. As a result, assessments were carried out and a standard DOLS authorisation was issued on 23 January 2011 for 12 months. This was reviewed in May 2011, and some less stringent controls on Mr C's visits to his family were substituted. In the same month there was an incident of aggression by Mr C towards a female staff member.
Summarising, the history shows that Mr C suffers from:
• Epilepsy
• Organic personality disorder
• A history of self-harming
• Aggression towards staff and family members
• Impulsive behaviour with no sense of danger, for example running into traffic
• Obsessive-compulsive traits
As Mr C's guardian, the LA has required him to live at the care home, which has locked doors. Mr C has 1:1 supervision inside and outside the home, including when on trips to his family (this at their request). Such trips out of the home are frequent, nearly daily, but are limited by the availability of the supervising staff, who have other responsibilities. When Mr C tries to leave unsupervised, distraction techniques are employed. His mood is controlled by antipsychotic medication.
For all his difficulties, Mr C has significant abilities, to the extent that he is employed to perform some of the duties of a janitor at the care home.
The current proceedings
On 11 June 2011, an MCA application was issued on behalf of Mr C, challenging the standard authorisation. Directions were given, leading to Mr C being represented by the Official Solicitor ('the OS'), and to reports being obtained on his mental capacity and his best interests. These reports were commissioned as a practical expedient, everyone being mindful that the court's jurisdiction was challenged in the light of the guardianship.
On 27 June 2011, the MHA guardianship was renewed for one year. Mr C's appeal to the First Tier Tribunal was rejected on 31 October 2011.
The MCA application came before me on 6 December 2011, when I read the documents, heard submissions from counsel for the OS, the LA and from the Care Trust that provides the care home ('the Trust'). I also heard directly from Mr C at his request. Written submissions were made by the care home, which is also a party.
The expert reports
Dr M, consultant psychiatrist, has closely considered the history and interviewed Mr C. She advises that he lacks capacity in relation to the issues before the court. This conclusion is accepted by all parties.
Mr W, independent social worker, has investigated the issue of best interests. In agreement with the best interests assessor, he concludes that Mr C is being deprived of his liberty and that the court should authorise this deprivation. However, he considers that the current situation is not in Mr C's best interests and that he should move within three months. In Mr W's view, Mr C needs to be in a specialist environment with adequate space and adequate funding to meet his extremely complex needs. By this means, Mr C might be helped through rehabilitation and move on to supported community living. Mr W observes that the staff ratio means that Mr C's trips outside the home are unduly limited. He recommends that a named specialist rehabilitation unit should approached to see whether it can offer a place. This unit is some 30 miles from the care home, and away from where Mr C's family members live.
As a result of other commitments, Mr W was not available to attend the hearing, but was able to speak to the parties' advisers by telephone during the course of the day.
Like the parties, I have considered the effect of Mr W's absence on the court's ability to make a decision on the issues. In the end, no one applied for an adjournment and all asked for the matter to proceed. Mr W has clarified his views in written communications since writing his report. I accept that if he had been able to attend, he might have added to his views to some extent, despite the limited time available for the hearing. I therefore concluded that it was appropriate to proceed without oral evidence, and that the court could fairly reach decisions on the available information.
The parties' positions
Mr C spoke on his own behalf. He said that he feels a great deal of stress as a result of being under both guardianship and DOLS. It gets on his mind and makes his epilepsy worse. He gets confused and doesn't know who to turn to. He has been at the care home for two years and wants to go somewhere else. He does not get on with the other residents and stays in his bedroom for most of the day to avoid them. The situation is too much for him. He wants the guardianship and the DOLS lifted.
The OS, on behalf of Mr C, made submissions through Ms Hewson. She argues that:
(1) Mr C is entitled to the protection of DOLS, and is not 'ineligible'.
(2) Mr C is being deprived of his liberty because of the extent of the restrictions on his freedom of movement and because, as a person who is relatively high-functioning, the weight of these restrictions is particularly heavy.
(3) The standard authorisation is flawed and ineffective because it is insufficiently specific about what is and what is not permitted.
(4) It is in any event unnecessary because Mr C was not prevented from going out when he wanted to in his previous placement (the rehabilitation unit) and because at the care home he is usually allowed to go out with supervision when he becomes upset and insists on it.
(5) On a proper analysis of s.8 MHA, the Court of Protection is not prevented from making best interests decisions in relation to the residence of persons under guardianship.
(6) Directions should be given to investigate the alternative placement possibility proposed by Mr W.
The LA responded through Mr Butler. He submits that:
(1) (In agreement with the Trust) a person, such as Mr C, is not ineligible for the protection of DOLS merely by virtue of being subject to guardianship.
(2) Mr C is not being deprived of his liberty, despite his unhappiness at being in the care home. Reference to the MCA Code of Practice and the decision in Cheshire West and Chester Council v P [2011]...
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