Caroline Hanman, 2nd December 2020
This hearing (COP 13677686, before Mr Justice Peel, 18th November 2020) was to decide where “Michael” should live.
He’s currently living in manifestly unsuitable accommodation to which he was moved after a crisis when he absconded from his usual living accommodation, was aggressive towards carers and caused damage to a neighbouring property. It took seven police officers to restrain him. They conveyed him to hospital, from which he was subsequently removed to a “place of safety” and then to a psychiatric unit for teenagers with severe mental health problems, which is where he was on the date of this hearing.
Michael has autism, learning difficulties, ADHD and is described as having “very challenging behaviour”. This latest placement isn’t appropriate for him. He’s been there since 6th November 2020 (so 12 days by the date of the hearing). The decision of the court was to move him, that afternoon, to yet another placement which – counsel had acknowledged from the outset – is not really suitable for him. It was a disappointing outcome. As the judge said in his oral judgment: “None of this seems to me to be entirely satisfactory”.
This was the third Court of Protection hearing about Michael in 11 days. The first one was an urgent hearing (via email) that resulted in an emergency order at 00.23 on 7th November 2020, authorising Michael’s deprivation of liberty in the psychiatric unit. The second hearing (which I blogged about here) was an urgent directions hearing before Mr Justice Cohen on Tuesday 10th November 2020. At that hearing it was decided that Michael should stay in his totally inappropriate placement – because nowhere else could be found – pending today’s hearing.
Today’s hearing, the third in the series, was to approve an order for Michael to move to another – as it turns out interim – placement, pending a fourth hearing in mid-December.
I’ve found it useful to follow up on this case across two hearings. It’s given me the opportunity to see how the parties involved have responded to previous Court of Protection directions, and to see how things may have changed for the individual at the centre of the proceedings, and what, if any, lessons have been learned by those involved.
“The only option available”
As is usual, the hearing began with an introduction on behalf of the applicant – in this case, Mr Anderson, representing the current care provider. He made it absolutely clear that Michael could not stay where he is and that his place is needed for another person for whom it is more appropriate. He pointed out, too, that it was only due to unusual circumstances (described in my last blog post) that his client had ended up as the applicant, and really it was the responsibility of the Local Authority to take this forward. (This was generally accepted and the current care provider was discharged as a party at the end of the hearing.)
The representative for the Local Authority, Mr Mahmood, said that, immediately after the last hearing, “extensive efforts were made to ensure compliance” and that “work was done evenings and weekends and so on”. He emphasised that “every conceivable option has been considered” but in the end there was only one option: it’s a holiday let – a residential home that Michael has stayed in before, with 5:1 staffing from the same care providers. The plan was to move him today, “in an unmarked ambulance, in daylight hours so that when he arrives he can see the property he’s going to be living in”. Michael’s parents were part of the transition plan: his mother “will wave off Michael and follow the ambulance in her own auto vehicle and will then meet Michael at the [new property]”.
There were serious concerns raised about the LA’s proposal to return Michael to a community setting when it was clear that the previous arrangements had broken down to such an extent that s136 of the Mental Health Act had been used to remove him to a place of safety. On behalf of Michael (via the Official Solicitor), Mr Patel QC explained that Ms Webber (previously Michael’s Accredited Legal Representative and now his solicitor) is unable to agree to the order proposed by the Local Authority because it effectively maintains the same care arrangements that were in place when the serious incident took place on 2nd November. Moreover, Michael stayed at this same holiday let earlier this year when work was being done on his usual accommodation and during those few weeks, there were two incidents of harm to others and one destruction of property: “so in that context the Official Solicitor is concerned we’re putting in place for Michael what was in place before, which wasn’t sufficient to avoid incidents”. Mr Patel QC said, succinctly: “The local authority is proposing to send Michael back to a property where he cannot be safe. But we can’t object to the proposed course of action because he can’t stay where he is and there is no alternative placement”. The Official Solicitor is pressing the local authority to come up with a contingency plan if things go wrong for Michael before his case is next back in court – but this has yet to be agreed.
Michael’s parents were both present in court and his mother has become a party since the last hearing. Although she was unrepresented, she was supported by her husband. He made it clear that as parents they felt they had been “pushed into a corner”.
“We accept that Michael can’t stay where he is, and we have no options. We understand the pressures they are experiencing with Michael there, but we feel options should have been explored sooner, given the concerns we raised back in August about the change in care plan. This should have been followed up a long time ago. It’s just all come to a head today.”
Michael’s parents had raised various concerns about the holiday let placement in their Position Statement – including the fact that it is a relatively small property with limited garden space, as well as the incidents that had previously occurred when Michael had temporarily stayed there. The parents also expanded on some unresolved concerns regarding the efficiency and management of the agency involved in Michael’s care.
I found it staggering that the concerns raised by Michael’s parents in August 2020 were still unresolved three months later and the Local Authority, despite having described Michael’s parents’ input as “invaluable” in Court had apparently failed to address their longstanding concerns about Michael’s care arrangements.
In an oral judgment, Mr Justice Peel said he wanted to “pay tribute to the extraordinary devotion and care” of Michael’s parents. He was less complimentary about the local authority.
“Why is it that prior to November 2020 no applications in relation to Deprivation of Liberty were made? The local authority has provided the explanation that the parents were consenting to arrangements in relation to Michael, who is not Gillick-competent, and therefore no application was thought to be required. But it’s accepted that applications should have been made at least from September 2019 onwards. There has been an appropriate acknowledgement of past failings. Planning for when Michael reaches the age of 18 should have been undertaken for some considerable time. I’m not sure from my reading of the documents that planning was taking place – and it is now taking place vigorously because of this application. It should have been addressed by the local authority some time ago. That is one of the reasons why we are in the position today where all parties recognise that there is only one option available. I suspect that with greater planning in advance, other options might have been located or developed.”
The judge was satisfied (on a s. 48 basis) that Michael lacks capacity to make his own decisions about the conduct of the proceedings, where he should live and his care and support package and on that basis he approved the order for the interim placement – although he also asked the LA to sort out a contingency plan to cover what will happen if the interim placement breaks down. He directed that the case should return in mid-December (preferably before him), because the court needs to scrutinise the LA’s plans (“which it seems to me are to an extent in their infancy”) for what should happen once Michael turns 18. He concluded his judgment by saying, “Above all, I would encourage the LA to continue the work that is now taking place and to focus on Michael’s needs going forward.”
A sad and uncomfortable experience
Although I was impressed with how Mr Justice Peel managed this hearing, observing it was a sad and uncomfortable experience. There are so many things that sit uncomfortably at a professional level. Michael is a young person with evidenced care and support needs, yet the LA failed to make a Court of Protection application to deprive him of his liberty, incorrectly seeking parental consent for a decision that properly needed legal authorisation. Mr Mahmood’s explanation that, as Michael was aged under 18, the LA had (incorrectly) determined that his parents could consent on his behalf sounded very shallow, given the quite obvious necessity for professionals to work within the law and the need for social workers to practise in ways that actively uphold and promote human rights. In my opinion, this fundamental breach of legal duty raises serious concerns about possible wider malpractice that may exist, and I have been reflecting on this matter since the hearing.
For example, Michael is under the age of 18 so there is still a legal requirement for him to participate in some form of education or training, yet no reference was made to Michael accessing any form of education or training at any point in either of the two hearings I observed. I am left wondering if (as I would expect) Michael was supported through an education, health, and care plan (EHCP). If so, what was in it, how was it being informed at a specialist level, and what (other) agencies and professionals were involved. I found it quite perverse that the LA fleetingly mentioned that the CCG (NHS Clinical Commissioning Group) was likely to become involved once Michael is aged 18 and I could not help wondering how Michael’s care plan was being commissioned and why the CCG had not had any previous input.
The judge seemed less than impressed when it became clear that the legitimate concerns raised by Michael’s parents three months previously had still not been seriously addressed by the LA despite this being the third Court of Protection hearing that had taken place on an urgent basis. If a judge can quickly grasp the nettle and respond appropriately, it seriously begs the question why the professionals involved with Michael are seemingly not demonstrating the same level of concern and why the only care ‘option’ available to Michael is one that obviously carries identified risk and is heavily dependent on the ongoing goodwill and support of his parents.
I felt quite sad for Michael and his parents because it is obvious that he has struggled during his young life but nobody outside the family seems to understand him and there seems little will to improve things. Although reference was made to Michael being supported by a different mental health team once he is 18, there was no evidence of how Michael is currently being supported in what should be a carefully planned transitional period. Michael’s voice was again, not being heard during this hearing, even though his views and wishes should be paramount and the judge was (I believe) at pains to ensure that this happens by the time of the next hearing.
It’s incredibly sad and humbling to observe these Court of Protection hearings. I really hope things work out for Michael and his family soon. I will try to attend the next Court of Protection hearing and write another follow up blog if I can.
Caroline Hanman is in the process of returning to Social Work following a career break, and will shortly be taking up a post in a local authority Adult Social Care team. She tweets @CarolineRTSW
 Quotations are as close as possible to what was actually said in court but since observers are not allowed to audio-record hearings they are unlikely to be verbatim. Thank you to Celia Kitzinger who also observed this hearing and helped with making the quoted material as accurate as possible.