PETER EDWARDS Peter Edwards Law Ventura House Market Street Hoylake CH47 2AE 0151 632 6699

1. LEGAL UPDATE MCA /DOLS /CoP PETER EDWARDS Peter Edwards Law Ventura House Market Street Hoylake CH47 2AE 0151 632 6699 peter@peteredwardslaw.com November 2011

2. PETER EDWARDS • Director of Peter Edwards Law • President Mental Health Lawyers Association • Nominated Mental Health Lawyer of the Year 2007 • Director of IMHL and Peter Edwards Law Training • President of mental health charity; Imagine • Teacher and Broadcaster • Past Appointments: • Consultant to Solicitors Regulation Authority • Legal Consultant WHO • Member of World Federation Mental Health Human Rights Committee • Law Society Chief Assessor MHRT Panel • Member of Central Policy Committee of MHA Commission • Vice Chair Law Society Mental Health and Disability Committee • Member NACRO Advisory Committee • Member of MIND Council of Management

3. peteredwardslaw.com • North West of England / Midlands / Wales • Solicitors also based in London / Nottingham • Court of Protection and EPA’s / LPA’s • MH(R)T’s and Managers hearings • Human Rights • Treatment issues • After care and 117 • High Court challenges • Community Care Law • Right to assessment and services • Representing incapacitated clients • Inquest Law (deaths of patients) • Legal advice to local authorities and private organisations

4. CONTACT

5. WCC v GS (2011) EWHC 2244 (Ct of P), 15.07.11, DJ Marin Issue • Is contact between an elderly mother and her son was in her best interests, and • to what extent a fact-finding hearing was necessary, particularly when the son was unrepresented.

6. Facts • GS was 83 years old and had a diagnosis of dementia of probably Alzheimer‘s type. • She also suffered from arthritis and Type II diabetes. • Approximately 6 years ago GS and her son RS bought a ground floor flat in sheltered housing, and RS became her main carer. • However, there were concerns about the general state of cleanliness of the flat, noted as being cluttered and unhygienic.

7. It was also discovered that GS had been sleeping on a mattress on the floor. • In 2010, GS became hypoglycaemic and had chronic renal failure. • This led to cellulitis and sepsis due to a diabetic-related foot ulcer. • She was admitted to hospital acutely confused. • She had part of her toe amputated as a result of the necrosis. • There were severe concerns that RS was no longer able to cope with GS’s care, and that she was suffering neglect because he was unable to meet her needs.

8. On discharge, it was plain that GS could not return home. • A care home close to the flat belonging to GS and RS had no vacancies and in any event could not provide the high level of care necessary. • GS was therefore discharged to a high dependency dementia care home. • She was non-weight-bearing, requiring full support with all transfers, and mobilised with a wheelchair and/or a Zimmer frame.

9. GS’s other son JS agreed that it was in her best interests to continue to reside in her placement where she was settled and appeared happy. • His brother RS strongly disagreed. • RS’s behaviour had been of great concern both to staff at the hospital to which his mother had been previously admitted, and to staff at her current placement. • He would arrive in the early hours of the morning, had followed nursing staff home, and interfered with the care of other residents. • A serious incident in July led to all direct contact being withdrawn. • RS had ‘trashed’ his mother‘s room, upset residents, threatened staff, and deliberately set off the fire alarm at the care home. • BIA DOLS assessment - for SA specifically recommended reduced contact between RS and his mother, and ultimately the cessation of contact.

10. Outcome • It was not necessary to have a lengthy and costly fact-finding hearing in relation to the various allegations made against RS because he accepted a sufficient number of the allegations to justify the restrictions in contact sought by the LA. • Note: in order to justify any interference with the Article 8 rights of P and their family member, LAs will need to seek a ruling on the facts in cases where there are strong denials of allegations made upon which restrictions of contact are based – as per Mr. Justice Hedley in LBB v JM, BK and CM, Court of Protection, 5th February 2010. • It was plain that RS had mental health issues and would benefit from help and support, albeit that he was reluctant to engage with professionals.

11. The starting point when considering an incapacitated person’s best interests in terms of contact was that the person was entitled to see their family on an unrestricted basis. • Thus, GS should be entitled to see her children. • That premise was independent of any right of the family member under Article 8 to see their relative. • Conditions should only be imposed on that contact if the incapacitated person‘s best interests demanded it. • In the present case, a consideration of GS’ best interests included the need to ensure her safety and wellbeing during contact by restrictions being in place.

12. Any conditions imposed must be reasonable and proportionate having regard to their aim and purpose and the context of the overall situation. • In some cases conditions will be necessary to manage every step from the arranging of the visit to the departure of the family member from the home. • Often, the dates and times of visits will need to be set out clearly in a contact schedule. • When conditions existed, regular court or LA reviews would be required. • A plan may be required to address problems in order to accommodate the family where, for example, a member could not attend on the appointed day due to an emergency. • Further, LAs and Trusts should consider whether financial assistance should be made available to a relative to enable them to travel to and from a care home.

13. Where it is in the best interests of P for all contact with a family member to be supervised, a contact schedule should make it clear who is to supervise and what level of supervision is required. • In severe cases, visits may require detailed note-taking by an independent person, whereas a cursory check-up by a staff member may be sufficient, or the allocated social worker may attend to keep a watching brief. • Dependent on the circumstances, the record of the visit may need to be extremely detailed, or a note simply that that the visit passed without incident. • There should be a right included in a contact schedule for the home or contact supervisor to cancel the visit if appropriate, either before the visit or during it, and there should be the ability to shorten or lengthen a visit if it is potentially distressing for P or they are unwell.

14. Conditions may also be required to regulate a family member‘s behaviour to ensure that neither P, other residents, nor staff are harassed. • It may be necessary to make clear which point of entry and exit to and from the care home is acceptable, the fact that other residents should not be interfered with, or what food and drink is appropriate for P, as well as clarifying the specific venue within the home for contact.

15. In the circumstances of this case, it was in GS’s interests for direct contact with her son to be reintroduced, although stringent conditions were required to ensure her safety and well-being and to protect other residents and staff. • Further, the medical evidence suggested that an end of life plan should be put in place for GS, as she might deteriorate quickly. • Except in exceptional and rare cases where the level of harm or potential for harm caused by a family member against a vulnerable person is sufficiently severe, at a person‘s end of life even members of a family who had been excluded from contact should be able to spend time with their parent or relative.

16. THE COUNCIL v (1) X (BY HER LITIGATION FRIEND THE OS) (2) Y (3) Z (2010) CofP (King J) 9/11/2010 Issue • Not in the best interests of a 94-year-old dementia sufferer for her to have direct contact with her daughter, • daughter's behaviour during contact was ‘unhelpful and distressing’.

17. The applicant LA applied for a declaration that contact between mother (X) and daughter, the (Y), was not in her best interests. • X was a frail 94-year-old who suffered from mobility problems and dementia. • She lived in a care home. • At a previous hearing the court had declared that she lacked the capacity to make decisions about, among other things, the contact she should have with others.

18. It made provision for supervised contact between X and Y, having heard expert evidence that Y showed little tolerance of X's disorientation and that her behaviour during contact often caused X distress. • Though the court had hoped that the quality of the contact would improve with supervision, that had not proved to be the case. • Contact had eventually been suspended when Y was banned from the care home after having been violent and aggressive towards staff members. • The police were required to attend as Y refused to leave the premises. • The LA could find no other suitable venue for supervised contact, and the expert evidence before the court was that contact with Y was not in X's best interests.

19. Held • Direct contact between X and Y was not in X's best interests. • No matter who supervised the contact, Y would in all probability rapidly fall out with them and her behaviour would deteriorate. • If the Judge believed X could make the journey or that contact was otherwise in her best interests, she would not have let the practicalities deter her and would have held the matter over for other options to be explored by the LA. • Indirect contact would be made available and it was to be hoped that Y would take it up

20. Woman's plea for more access to disabled sister rejected by judge, The Independent, 1st October 2011 • A sister's long and bitter battle to see more of her severely disabled sibling suffered a devastating blow yesterday when a judge ruled that a LA-selected nursing home provided the best possible care. • The 63-year-old claimed she was being slowly cut off from her elder sister – who suffers from multiple sclerosis, related dementia and paranoid schizophrenia - by bullying staff who wanted to reduce her visits to just 30 minutes a week. • In court, the pensioner, who can only be named as HN, pleaded for her 68-year-old sister FL to be moved to a home closer to her in London so she could see her more often. • Hampshire County Council argued that it was, in fact, HN who was confrontational and threatening to staff.

21. It said she was a serial complainer who was so controlling that she was unwilling to accept professional opinion. • Moving her disabled sister from where she had lived for eight years, they argued, could have devastating consequences and would only provide a fresh battlefield for disagreement. • The case provides a rare insight into the tortuous decisions faced every day by the Ct of P, Britain's most secretive court which oversees the wellbeing of vulnerable people deemed not to have the capacity to make their own choices. • It has remained strictly out of the public eye until a legal victory by The Independent last year.

22. Yesterday, in another legal breakthrough for the media, DJ Ralton allowed contemporaneous publication of a previously privatecase: • "I think it is important for the country as a whole to understand the dilemmas that can be faced by families, LAs and persons concerned with someone's best interests, to understand the tremendous responsibility imposed on the Court of Protection in having to make official decisions," • "It is a balancing exercise the court has to go through and agonising thought goes into making a decision."

23. After an acrimonious and heated four-day hearing, Judge Ralton found in favour of the LA. • While he assessed that the sister's passionate fight for her sibling was well intentioned, he found that it was misguided and exceeded "constructive criticism". • He said HN had become so obsessed that she refused to accept a "plethora of independent opinions". • "If I could be confident there was a real prospect of a fresh start, that achange of care home would be a cure to this case, I would investigate further a change in care home. • But whoever provides care to FL would be under exceptional scrutiny by HN."

24. But he refused to increase restrictions insisting she be allowed an hour a week. • "I hope beyond hope that HN will conduct herself with the right sort of decorum and that these visits are successful." • In emotional and often tearful testimony, HN said: • "This has been very hard for me and I could have given up a long time ago but I didn't want to give up on my sister. • I have tried to protect my sister. That is all I have tried to do."

25. DISPUTE OVER RESIDENCE

26. London Borough of Hillingdon v Neary & Anor [2011] EWCH 1377, Ct of P, 9th June 2011 Issue • Breach Article 8 • Unlawful DoL • LA had tried to wear down father’s resistance,

27. Facts • Stephen Neary was 21 years of age and had a diagnosis of autism and severe LD. • He required • 24 hour care and support at all times for his own safety and the protection of others, and • 2:1 support when in the community due to occasional aggressive and unpredictable behaviour. • Following his parents‘ divorce in 2009, his father became his main carer with assistance from professional carers on a daily basis.

28. In December 2009 Steven was taken into respite care for a few days when his father was unwell and exhausted. • When Mr. Neary requested that his son return home, the LA refused due to concerns about Steven‘s behaviour and weight gain. • In April 2010 Steven escaped from care and broke the glasses of a member of the public. • He was taken to a positive behaviour unit, and an urgent authorisation under the DOLS procedure and three subsequent SAs were put in place (about which his father was not informed).

29. Hillingdon planned to send Steven to a long-term placement outside London, and one such placement would have required his admission under s.3 MHA 1983. • Mr. Neary then brought Ct of P proceedings contending that his son was unlawfully DOL. • 7 months later the Court made an interim declaration that it was in Steven‘s best interests to return home. • In early 2011 a court order permitted media reporting.

30. The LA argued that it had had the right to keep Steven in the support unit in his best interests, that between January and April 2010 it had had Mr. Neary’s consent to the placement, and that Steven was not DOL. • With regard to the period from April to December 2010, it relied upon the series of DOLS authorisations that it had granted to itself as both MA and SB.

31. Held • Most decisions about the residence of those lacking capacity are made collaboratively between a local or health authority and family members. • Where there was a DOL, the statutory DOLS procedure and DOLS Code had to be followed which safeguarded P. • The ordinary powers of a LA were limited to • investigating, • providing support services, and • where appropriate referring the matter to the court. • If it sought to regulate, control, compel, restrain, confine or coerce, save in an emergency it had to rely upon specific statutory authority for its actions, or obtain the court‘s endorsement.

32. Mr Justice Peter Jackson found that Steven was DOL throughout the year at the placement contrary to Art 5(1) ECHR, and that the DOLS authorisations were flawed. • He also found that Mr. Neary had not given his consent to the placement. • Hillingdon had tried to wear down Mr. Neary‘s resistance, even though in fact he was right about Steven‘s best interests, and it was wrong. • It had failed to activate the statutory safeguards that existed to prevent the situation arising.

33. Hillingdon should have referred the matter to the Ct of P, and it had failed to appoint an IMCA for Steven until October 2010. • It had also failed to conduct an effective review of Steven’s DOLS assessments under Part 8 SchA1. • The failings breached his right to a speedy review by a court of the lawfulness of his detention, contrary to Art 5(4). • Further, the practical and evidential burden is on a LA to demonstrate that its arrangements are better than those that can be achieved within the family.

34. Further, LAs have the advantage over individuals both in terms of experience and funds, and so where an individual does not bring a matter to court, the LA has an even stronger obligation to do so. • The obligation on the state under Art 5(4) is not only to ensure that there is a mechanism by which an individual may have the lawfulness of his detention reviewed speedily by a court, but to enable that review, and therefore Hillingdon had breached that right.

35. The Judge also found that Hillingdon had unlawfully breached Steven‘s right to respect for his family life, contrary to Art 8. • Hillingdon had not: • weighed the advantages and disadvantages of Steven living at home as opposed to in the care home, and • no genuine and balanced best interests assessment had been carried out.

36. A SB under DOLS must scrutinise assessments received by it with independence and particular care. • LA had granted authorisations on the basis of • perfunctory scrutiny of • superficial best interests assessments, • which were not legally valid. • Jackson J. found that the DOLS process had been used to justify Hillingdon‘s decision and as an instrument of confinement, rather than as a protection of the vulnerable person‘s liberty. • The LA had relied on the DOLS authorisations to mask the real DOL which had occurred, which had been the refusal to allow Steven to go home.

37. Welfare planning should be directed by the team to which the allocated social worker belongs, with close liaison with those running the support facilities. • There had been a stark absence of decision-making and/or disorganisation and a lack of willingness to take responsibility. • Hillingdon had provided a media briefing note in an attempt to counteract adverse publicity which had been full of contentious and inaccurate information, and created an unfair and negative picture of Steven and his behaviour, which Hillingdon accepted in hindsight had been an error of judgment. • The Council apologised to Mr. Neary and stated that it had already made significant changes and was currently reviewing its training for staff who dealt with the MCA and the DOLS process. • Declaration that Hillingdon Council had unlawfully detained Steven Neary granted.

38. WHAT IS A DOL?

39. Cheshire West and Chester Council v P (by his litigation friend, the Official Solicitor) and M, [2011] EWHC 1330 (Fam), Court of Protection, 14th June 2011 Issue: • Whether the care arrangements in place for P amounted to a DOL or merely a restriction upon him.

40. Facts: • P was 38 years old and had cerebral palsy and Down‘s Syndrome with a history of cerebral vascular accidents. • He presented with significant physical and LD, and a history of challenging behaviour. • He lacked capacity to make decisions about his residence and care. • Until 2009 he had lived with his mother until her health deteriorated and he was taken into emergency respite care. • The day after a best interests meeting, an application was made to the Ct of P by the LA and a number of interim directions were made on the same day.

41. In November 2009 P moved to Z House. • At times care staff had to resort to physical intervention and used an all-in-one body suit sewn up at the front to prevent P from tearing off parts of his continence pads and ingesting them, which posed severe risks to P in terms of hygiene and choking. • This and other management was thought to amount to a DOL. • LA argued that the level of physical intervention in P‘s case amounted merely to a restriction on P, rather than a DOL

42. 2 incidents had occurred in April and July 2010 which had not been disclosed, one of which had required P to be taken to hospital. • Further, the LA had not disclosed all relevant records, which required an adjournment of one hearing. • At the oral hearing, staff indicated that diversionary techniques were used before physical intervention or restraint was used upon P, which would be used as a last resort a few times each month. • The LA had a ‘no restraint’ policy, and none of the staff at Z House had received training in restraint techniques. • The Judge continued the interim declarations

43. However, a member of the Z House staff then informed the LA that A, and at her instigation other members of staff, had altered a number of records concerning P‘s care and treatment. • This included an incident report form relating to 2nd April 2010 which had been re-written, and other notes having been changed to omit references to P attempting to hit members of staff and attempting to remove his incontinence pad, and to a member of staff holding him to stop him removing the pad. • The actions led to disciplinary proceedings being taken against A and other staff members, leading to dismissal.

44. M’s solicitor argued that an ISW ought to be instructed and paid for by LA, given that it was clear that P‘s care plan had involved physical intervention and was thus a DOL. • Costs were sought from the council for having argued that the care arrangements had not been a deprivation of P‘s liberty which had led to a hearing on the matter. • The council considered the instruction of an ISW unnecessary, and the OS made an application for permission to instruct such an expert, which was granted, with the issue of costs reserved.

45. The ISW concluded that it was in P’s interests to remain in residence at Z House and considered that contact between P and M in M‘s home was in P‘s best interests. • However, her view was that P‘s care package did not meet his needs, and she made a number of recommendations. • In her opinion, the level of restraint and physical intervention required in P‘s case was greater than that currently being provided. • A further hearing was held and the matter adjourned to consider whether agreement might be reached on the appropriate amendments to the care plan. • LA then drew up a new physical intervention policy, which was ratified by its Departmental Management Team.

46. Held: • It was held that the misconduct by staff employed by a LA involving the re-writing of its records after a hearing had seriously impeded the court process. • M argued that the authority should be named, and LA argued that to do so would risk identifying P. • The OS was neutral on the issue. • The Judge held that the public interest in holding public authorities accountable for the actions of their employees amounted to a ‘good reason’ for publishing the judgment in an anonymised format whilst authorising the naming of the LA in the judgment. • He found that it would help to sustain public confidence that the Ct of P • There was little likelihood that naming the authority would lead to the identification of P

47. Did P‘s circumstances objectively amount to a DOL? • Held that there were a number of features that, by themselves, might suggest it was not a case of DOL, and that P‘s life was made as normal as possible (which was a factor that made it less likely for restrictions to amount to a DoL, P & Q v Surrey County Council (2011) EWCA Civ 190). • However, P‘s life was completely under the control of members of staff at Z House, and he could not go anywhere or do anything without their support or assistance. • His occasionally aggressive behaviour and habit of touching and eating his continence pads required a range of measures to protect him, including occasional physical restraint and the intrusive procedure of inserting fingers into his mouth to remove bits of the pads whilst he was being restrained. • Thus P was DOL.

48. The removal of unhygienic pads from his hands and mouth was plainly in his best interests and therefore justifiable, but as a matter of fact and legal principle, it would involve a DOL. • Staff had a duty to ensure that the measures taken were the least interventionist possible, which required a regular reassessment of his circumstances to see if there were alternative strategies that could be adopted to meet his needs without involving actions impacting upon his liberty, such as the use of a bodysuit or an intensive programme of education to teach and encourage P not to behave in ways that required restraint.

49. The Court further held that there must be regular court reviews and not just LA reviews to comply with Article 5 to scrutinise the circumstances and assess whether or not the circumstances amounted to a DOL. A further oral hearing in the form of a review was to take place later in 2011. • On the issue of costs, Mr Justice Baker observed that the misconduct of the LA’s employees in tampering with P‘s records had been serious. • Although it had not been unreasonable for LA to contest the DOL, its failure to disclose some relevant documents, and the attempt to interfere with records had plainly lengthened the proceedings and had amounted to serious misconduct. • Thus the council was ordered to pay a substantial proportion of the overall costs of the proceedings. • Cheshire West & Chester was named and ordered to pay some of the costs incurred by the other parties involved in the proceedings.