Cheshire West and Chester Council v P (by his litigation friend the Official Solicitor)

JurisdictionEngland & Wales
JudgeLord Justice Munby,Lloyd LJ,Pill LJ
Judgment Date09 November 2011
Neutral Citation[2011] EWCA Civ 1257
CourtCourt of Appeal (Civil Division)
Date09 November 2011
Docket NumberCase No: B4/2011/1788

[2011] EWCA Civ 1257

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE COURT OF PROTECTION

MR JUSTICE BAKER

[2011] EWHC 1330 (Fam)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Pill

Lord Justice Lloyd

and

Lord Justice Munby

Case No: B4/2011/1788

Between:
Cheshire West and Chester Council
Appellant
and
P (by his litigation friend the Official Solicitor)
Respondent

Ms Jenni Richards QC and Mr Neil Allen (instructed by Legal Services Department, Cheshire West and Chester Council) for the Appellant

Mr Richard Gordon QC and Mr Simon Burrows (instructed by O'Donnells on behalf of the Official Solicitor) for the Respondent

Hearing date: 22 September 2011

Lord Justice Munby
1

This is an appeal, pursuant to permission granted by Thorpe LJ on 5 August 2011, from that part of an order made in the Court of Protection by Baker J on 4 April 2011 which declared that P's care plan at the property named in the order, which I shall refer to as "Z House", involves a deprivation of his liberty for the purposes of Article 5 of the European Convention on Human Rights and Fundamental Freedoms. The judge's reasons for coming to that conclusion are set out in the reserved judgment which he handed down on 14 June 2011: [2011] EWHC 1330 (Fam). The judgment dealt with a number of other matters as well as the Article 5 issue but it is that alone which is the subject of the appeal. The appeal is brought by the local authority responsible for meeting P's community care needs and which provides him with accommodation at Z House.

The factual background

2

Baker J's judgment is in the public domain so I can be more economical in my statement of the relevant facts than would otherwise be appropriate.

3

P is a thirty-nine year old man who was born with cerebral palsy and Down's Syndrome and has a history of cerebral vascular accidents. He presents with significant physical and learning disabilities. It is accepted by all parties that he lacks the mental capacity to make decisions as to his care and residence. He lived with his mother from birth until 2009. From December 2008, her health began to deteriorate to the point where the local authority concluded that she was no longer able to care for her son. On 4 September 2009 His Honour Judge Allweis declared "on an interim basis" that it was lawful and in Ps best interests for him to continue to reside at the local authority establishment at which he was then placed, or in any other placement with the local authority pending the final hearing. In November 2009, P moved to live at Z House, where he remains to this day. In his order of 4 April 2011 Baker J declared, pursuant to section 16 of the Mental Capacity Act 2005, that it is lawful and in P's best interests that he continues to reside at Z House.

4

It will be appreciated that in the light of Baker J's order the question of whether P's circumstances at Z House involve a deprivation of liberty within the meaning of Article 5 does not go to the issue of the legality of the deprivation of liberty (if such it be), for the order makes lawful anything that might otherwise be unlawful as involving a breach of Article 5. What it does go to is whether P is entitled to the important procedural protections of Article 5(4) and, in particular, to the regular ongoing reviews of his detention (if such it be) mandated by Article 5: see my decisions in Re PS (Incapacitated or Vulnerable Adult) [2007] EWHC 623 (Fam), [2007] 2 FLR 1083, Re GJ, NJ and BJ (Incapacitated Adults) [2008] EWHC 1097 (Fam), [2008] 2 FLR 1295, and Re BJ (Incapacitated Adult) [2009] EWHC 3310 (Fam), [2010] 1 FLR 1373, and, most recently, in this court P and Q v Surrey County Council [2011] EWCA Civ 190, [2011] 2 FLR 583, paras [4], [47].

5

Baker J had the advantage of a report from Miss Dawn Whittaker, an independent social worker. I can pick up the narrative in para [5] of the judgment:

"Miss Whitaker describes Z House as "a large and spacious single-level bungalow" in which "the facilities generally are modern and cosy with a pleasant atmosphere." P has his own room that has been personalised to his needs and access to two nearby adapted bathrooms. Z House can accommodate up to four residents at any time. The normal staffing ratio during the day amounts to two staff for all four residents. In addition, however, P receives additional one-to-one close personal supervision during the daytime. P continues to attend the day centre five days a week, leaving Z House at 9.30 in the morning and returning at 5.00 in the evening. Until recently, P did not receive one-to-one supervision at the day centre but, following increased concerns about managing risk, that level of supervision has recently been introduced. At night, there is one "waking" member of staff available at Z House during the night, shared across two adjacent properties. The scheme operates a duty officer system whereby senior support workers are available to give advice to in-house support workers."

6

Baker J continued (para [6]):

"As a result of his disability, he needs a high level of care. He can move for short distances without support, but in order to mobilise further he requires the use of a wheelchair. His difficulty in mobilising means that he is at risk of falling, particularly in situations where he may find it difficult to maintain his balance. He requires prompting and assistance with all activities of daily living, including mobility, nutrition, eating, personal hygiene and continence."

He noted (para [8]) that continence management has been a longstanding and significant problem for P:

"P has a long history of pulling at his continence pads and as a result they become shredded and torn. Of greater concern is the fact that P has developed a habit of putting the pieces of padding in his mouth and on occasions ingesting them. On occasions this has included the faecal contents of the pads. In addition to the obvious hygiene risk involved, there is, in P's case, the added danger of choking."

7

He continued (paras [9]–[10]):

"This aspect of P's behaviour has caused particular difficulty to those entrusted with his care. A variety of techniques have been identified to tackle the problem, including monitoring his behaviour in order to ascertain the risk factors; structured toileting arrangements throughout the day to reduce the need to use pads; positive reinforcement strategies to promote improved behaviour; the use of specialist underwear; continence advice; and verbal redirection techniques. In addition, inevitably, care staff have sometimes had to resort to physical intervention. On occasions, P has "stored" pieces of incontinence pad and faeces in the roof of his mouth. In order to remove this material, two members of staff have had to use what is known as a "finger sweep" method, which I understand to involve inserting a finger into his mouth to check for and remove any such material. According to Miss Whitaker, "the two-to-one staffing is necessary for one person to open P's fist to hold and clean his hand to prevent him smearing it over himself or others, while the other person takes action to remove and refresh his pad and clothes." Miss Whitaker goes on to describe how P will attempt to fight against staff during these interventions. She also states: "despite implementation of the preventative strategies described, and use of close proximity one-to-one staffing, it is evident that P continues to pull at his continence pads and succeeds in tearing bits off, and accessing its contents, resulting in his putting it in his mouth and ingesting it".

Recently, as described by Miss Whitaker, the staff at Z House have adopted a new approach, involving P wearing an all in one body suit sewn up at the front, to prevent his hands touching his groin area, the only access being via a zip at the back. To date, this had proved a successful way of managing his behaviour."

In para [11], Baker J described other aspects of P's challenging behaviour.

8

In the course of the proceedings the local authority produced a detailed care plan for P. It is dated 29 March 2011 and has been approved by Baker J as being in P's best interests. So far as material for present purposes it identifies five behaviours that P displays: accessing/destroying continence pad, grabbing or smearing the contents (faeces) and placing in his mouth or ingesting it; picking at his skin causing wounds; aggression towards others; banging/slapping his head; reducing co-operation. The care plan then deals with each of these behaviours under a number of headings including: rationale (why intervene?); risk associated with presenting behaviours; frequency; triggers; behaviour intervention plan; behaviour support plan. I need not go through this in detail. A few extracts illustrate the realities of P's life at Z House and illuminate the nature of the restraints to which he is, on occasion, subject.

9

In relation to the first listed behaviour (the continence pad) the behaviour intervention plan if he has accessed his pad and has it (or faeces) in his hand is to "ask, coax and direct in assisting [him] to change his pad/clothing and freshen up." If he has placed the pad (or faeces) in his mouth, the plan provides as follows:

"Using protective clothing, one staff member is to hold [his] hands, and ask him to open his mouth; use facial gestures as a prompt (staff to open their mouth). If [he] does not open his mouth; staff to touch [his] chin as a prompt, and repeat facial gesture again as above. If [he] is uncooperative, the second staff member is to open [his] mouth, place 2 fingers inside his mouth and use a sweeping motion across his palette to remove any contents. Staff should then support [him] to go to the bathroom and assist him to change his pad/clothing and freshen up."

This is plainly the most intrusive of all the techniques...

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2 books & journal articles
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    • Emerald The Journal of Adult Protection No. 14-6, November 2012
    • 30 November 2012
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