Hillingdon London Borough Council v Neary and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Peter Jackson |
| Judgment Date | 09 June 2011 |
| Neutral Citation | [2011] EWHC 1377 (COP) |
| Docket Number | Case No: COP 1191258T |
| Court | Court of Protection |
| Date | 09 June 2011 |
[2011] EWHC 1377 (COP)
IN THE COURT OF PROTECTION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Peter Jackson
Case No: COP 1191258T
and
Mr Hilton Harrop-Griffiths (instructed by Hillingdon Legal Services) for the Applicant
Ms Aswini Weereratne (instructed by Miles & Partners on behalf of the Official Solicitor) for the First Respondent
Mr Mark Neary in person
Ms Elizabeth Prochaska (instructed by The Equality and Human Rights Commission) lodged written submissions
Mr Guy Vassall-Adams (instructed by the Solicitors for Independent Newspapers on 27 May 2011) only for Independent Print Ltd, Guardian News and Media Ltd, Times Newspapers Ltd, the BBC and the Press Association
Hearing dates: 23–27 May 2011
This judgment consists of 202 paragraphs. Pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken and copies of this version as handed down may be treated as authentic.
Introduction
In this case a local authority accepted a young man with disabilities into respite care for a few days at the request of his father and then kept him there for a year. The question is whether this was lawful.
Steven Neary is 21. He has childhood autism and a severe learning disability. He is a tall, heavily-built young man who requires supervision and support at all times. He needs things to be predictable and becomes highly anxious if he is not carefully prepared for change of any kind. His life is structured around his home, with reassuring daily routines and rituals and a weekly diary of outings to swimming pools, the gym or a day centre.
Steven is usually fun to be with, with a good sense of humour and a good memory. However, he can become moody and anxious, particularly when faced with unexpected change, or made to do things that he dislikes. He can lash out, not in malice but rather in the manner of a small child. As a result, he needs to be closely supervised when he is out in the community to ensure his own safety and that of others. He needs one other adult present at all times, and two adults when he is out of the house.
Steven's parents are Mark and Julie Neary. They brought him up together and accepted increasing levels of professional support as his needs became more evident. He attended a special school until the end of 2007. When his parents separated in 2009, Steven moved with his father to live in a flat in Uxbridge, with his mother visiting regularly.
The demands of such high levels of care are beyond even the most dedicated parents on their own, and particularly for a one-parent household where the parent works full-time, as Mr Neary does. As a result, Steven depends both on his family and on social services – he cannot do without either. Since 2007, the Adult Social Care Department of The London Borough of Hillingdon has provided extremely high levels of support to Steven and his parents. Until 2010, and the events described below, this was delivered as part of a genuinely cooperative partnership with the family, which not only benefited Steven but was completely essential to making his day-to-day life run smoothly.
Hillingdon's services to Steven and his parents have included a day centre, regular fortnightly overnight respite care, the support of social workers, the coordination of Steven's medical needs, a successful period of residential assessment in a small behaviour support unit (referred to here as "the support unit") from January to May 2008, and the provision of high levels of financial support from public funds. In particular, Hillingdon have funded agencies and made direct payments to Mr Neary, from which a team of daytime support carers are employed for 5 or 6 days of the week. Some of these carers have worked with Steven for years and, like his parents, are skilled at spotting signs of anxiety and heading off problems.
Hillingdon works with some 1300 adults with disabilities. Anyone who believes that the work is simple and the right decisions always obvious is mistaken. Giving high-quality support to people with such complex needs is a subtle and demanding task. In the vast majority of cases, it is carried out without fuss, fanfare or public congratulation, but that can be forgotten when attention understandably turns to cases where things have gone wrong.
In this judgment, I am necessarily critical of decisions taken by Hillingdon in relation to Steven during the year 2010. But even during that year Steven received committed care, and Mr Neary would be the first to say that some tremendous results were achieved during what was otherwise an unhappy time for all.
A fair-minded observer will therefore want to view my conclusions about recent events against that general background. Steven will need social work support throughout his life and Mr Neary and Hillingdon will need to work together. Taking recent mistakes out of that context would be unfair, and unhelpful to Steven and his family.
The hearing has taken place in the presence of the media. A small number of reporters sat in court for some or all of the five-day hearing, and their presence had no effect on the course of the proceedings. With minor exceptions, they can report what took place during the hearing, and I am confident that they will do it in a fair and balanced way. This will, I suggest, involve the media ignoring an unfortunate media briefing note, about which I say more later, that was issued by Hillingdon on the eve of the hearing.
Where the media attends a hearing in the Court of Protection, the information it can publish can be restricted by the court in the interests of the individual at the centre of the proceedings. At the end of the hearing, the parties proposed that a very few matters should not be reported. After discussion, the media agreed, and I made an order accordingly. The two particular matters that will not feature in reports of the hearing are (1) details of a small handful of individual incidents involving Steven, and (2) the names of individual social workers or care assistants or of specific social services facilities. The media is in my view right to accept these relatively minor restrictions. Detailed descriptions of individual incidents may be eye-catching, but they do not represent Steven's ordinary behaviour and it is not in his interests to focus on them unduly. Nor would it be right to name the individual social workers. The shortcomings in this case are not the result of individual decisions but of collective misdirection. Moreover, some of the social workers concerned will continue to play an important part in Steven's future support system and it is not in his interests for them to be singled out.
As described in my earlier judgment in this case, which can be found on the Bailii website at [2011] EWHC 413 (COP), there are two aspects to these proceedings. The more important concerns Steven's welfare. Having lived at home throughout his life, he spent the period between January and December 2010 in the support unit managed by Hillingdon. At Christmas 2010, as a result of an order made by Mr Justice Mostyn, he returned home to his father and he has remained there ever since. Things have gone well and it is now agreed that Steven will remain at home with high levels of support. Detailed plans for the future are being finalised and I expect to be able to approve them at a short hearing in a few weeks' time, and thereby end the proceedings.
Summary of decision
This hearing deals with the secondary aspect of the proceedings, which is to examine the events of 2010. One aspect of the work of this court is its jurisdiction to make declarations about the lawfulness of any act done in relation to a person without mental capacity, and in particular in relation to any deprivation of their liberty: see ss. 15 and 21A Mental Capacity Act 2005.
In this case, the Official Solicitor, acting on behalf of Steven Neary, seeks a declaration that when Hillingdon kept Steven in the support unit between January and December 2010, it acted unlawfully by depriving him of his liberty and by failing to respect his right to family life, in breach of Articles 5 and 8 of the European Convention on Human Rights. That application is supported by Mr Mark Neary, but opposed by Hillingdon. Written submissions on the legal issues have been received from the Equality and Human Rights Commission.
During the hearing, the court heard evidence from a service manager, a team leader, the support unit manager, two carers, a Consultant Psychiatrist in Behavioural Disorders (Dr Dene Robertson), and from Mr Mark Neary himself. Steven's social worker did not give evidence, and a senior manager who was due to give evidence did not do so either; in each case this was due to illness. The social worker's records were carefully compiled, and the actions taken and the thought processes behind them are clearly recorded. It has not been suggested that the absence of these witnesses placed Hillingdon at a disadvantage.
Having read those records and heard the evidence of the social workers, I am satisfied that everybody concerned has genuinely wanted to do the right thing by Steven at all times, and that a lot of hard work has been done to achieve this. The problems arose from misjudgement, not from lack of commitment.
The court heard expert submissions from Mr Harrop-Griffiths for Hillingdon and Ms Weereratne for Steven Neary. Mr Neary, although quite unable to afford legal representation for a hearing of this kind, was not eligible for legal aid. Fortunately, his position was well represented by the arguments of...
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