By Claire Martin, 27th June 2022
The protected party at the centre of this case, ED, is 27 years old. He is autistic and has a learning disability and epilepsy. He has been detained under Section 3 of the Mental Health Act 1983 since April 2018.
Before then he lived with his mother (with paid carers to help with his care needs). He was initially in a psychiatric intensive care unit, and then moved to long-term segregation, which is where he currently remains.
These proceedings began in June 2021, seeking court approval for ED’s deprivation of liberty in the community when he was discharged from hospital. The applicant is ED (via his Litigation Friend).
A hearing on 23rd September 2021 before DJ Davies required two respondents (the CCG and the Local Authority) to provide evidence about plans for ED’s care in the community. ED has been ready for discharge for some time and a court order dated 1st December 2021 states the Trust’s position that he was ready to be discharged back then. Plans for discharge have been ongoing since early 2022. At this hearing, final care plans were still not available for the court.
I observed a hearing for this case (Case No: 12611795) on 13th June 2022, before Her Honour Judge Matthews QC. It was due to start at 10.30am and got underway, for various reasons, at 11.27am.
The judge asked counsel for ED (Victoria Butler-Cole, QC) to provide a ‘pen picture’ of the case, since there were observers present. As ever, this is extremely helpful in setting its context and history.
There were four parties in the hearing: ED (via his Litigation Friend, his mother), the CCG, the Local Authority and the NHS Trust which is currently caring for ED under the Mental Health Act. The proposal (from the NHS Trust and the Local Authority) is that ED will initially be discharged to a designated home with round the clock carers, under Section 17 of the MHA 1983.
It’s the circumstances and clear plans to enact this discharge that were the subject of this hearing.
What are the issues to be decided about ED’s discharge from hospital?
Victoria Butler-Cole QC clearly outlined three main issues:
1. What CCTV arrangements should be in place for ED?
2. What should the contact arrangements be for contact between ED and his father and (separately) between ED and his mother and sister?
3. The plans for discharge from Section 17 of the MHA and transfer to a Deprivation of Liberty authorisation from the Court of Protection.
The CCG, reportedly, was disputing aspects of the draft order, which I don’t have, so it wasn’t always obvious to observers during the hearing, what exactly was the position of the CCG. HHJ Matthews QC was concerned about the time available to the court and the fact that there was still dispute between parties and that ED needed to leave hospital not least because, as Victoria Butler-Cole QC had stated, there have been:
“… recent incidents where he has suffered physical injury with what has been described as inappropriate physical restraint. One report has stated that ED is not safe in hospital. I raise it because it is critical that everything is undertaken thoroughly and comprehensively in good time, so that he DOES leave hospital with no further delay.” (Counsel’s emphasis)
In her Position Statement, there is more detail about both the physical injury and about the context in which it took place.
An Independent Care and Treatment Review panel had concluded a couple of months ago (at the end of April 2022) that ED was ‘inappropriately placed in hospital’. ‘Red level’ concerns were raised about whether ED needed to be in hospital, whether he was receiving the right care and treatment, whether he was involved in his care and treatment and whether there was a clear, safe and proportionate approach to risk management. There were questions about whether ED’s rights and freedoms were being upheld.
Then in May 2022, there were three incidents in which ED was physically restrained and sustained injuries. An independent medical review carried out by Dr Chris Ince (a Consultant Psychiatrist working in specialist autism services) on behalf of NHS England reported that ED was ‘not safe within his current environment’. There is currently a pre-action response awaited from the NHS Trust. Some staff have been suspended or removed from working directly with ED, and the CQC is going to carry out an unannounced inspection. It sounds like ED is not in the best place to meet his needs, to say the least.
The following exchange[i] then took place, between counsel for the CCG (Samantha Broadfoot, QC) and HHJ Matthews:
Broadfoot: Good morning My Lady. I will be brief. The context is that ED is potentially a very dangerous young man. He has a history of highly challenging behaviour. He is a risk to himself and others – attacks on staff, property. [Psychiatrist’s] September 21st report details this [lists paras] and [further psychiatrist] report. The CCG is the commissioner. Everybody agrees he’s not getting the best care in the current setting. The proposal is that he is moved to a purposely adapted, extremely expensive placement. The care provider is an autism specialist. He can be extremely dysregulated and engage in challenging behaviour – there is evidence that change is a matter that can be upsetting and difficult for him. The reason we as the CCG say the orders sought are premature is because it is for the care providers to work out, especially with his mother, the plans regarding contact etc. [There is] a danger that court processes are being used to micromanage the process. The vast majority of discharges happen without the involvement of the court. Given the background to this, it is proposed that there is a risk it’s going to alienate the provider by micromanaging an iterative process. We accept that everybody involved in this should be engaging. [Care provider] is committed to this. The orders at paragraphs 7 & 8 [in the draft order – I am not sure of the details of those orders] are micro-management and we have serious concerns about that. On CCTV, point specifically [care provider] will be data controller and they will work out what is necessary and then seek consent. If that consent is not forthcoming [care provider] will have to decide whether to proceed on a different basis. At this stage we just don’t know. At this stage those orders are premature and unnecessary.
Judge: So you’re not agreeing to all of paragraph 10 ….. What do you see the point of the hearing on 21st July being?
Broadfoot: It might have to make a decision on some of these matters. We don’t know at the moment.
Judge: Why are you agreeing to this hearing then?
Broadfoot: By the 21 July, if there’s no dispute, then we’d be saying we are happy for the court to decide.
Judge: I am trying to follow the logic. You are objecting to the gathering of evidence?
Broadfoot: The process … what we object to is the directions as to the service of evidence which assumes that there’s going to be dispute.
Judge: It raises the possibility, but equally, as is often the case in the COP, it sets out matters on which people can agree. It will be a matter for the court on 21 July to decide, and obviously ED needs to be safe.
Broadfoot: One point on paragraph 9 on Deprivation of Liberty in future. It is safe to say at this stage, it’s very very uncertain what the timing framework will be for ending of S17 leave and mid-August is only one possible date.
Judge: Thank you.
Rhys Hadden (counsel for the NHS Trust) confirmed that the Trust’s view was that it was uncertain when it would be appropriate to discharge ED from the MHA section (which can recall ED back to hospital if deemed necessary):
“The best guess is 6-8 weeks from the end of July, it may be shorter or longer, it depends on how he settles in to new placement. The responsible clinician will be responsible for this. I am not commenting on the future. The agreement from the other parties is that NHS Trust involvement on 21st July is not going to be necessary. We are asking for our clients to be excused at the next hearing. The order is essentially agreed.” (Rhys Hadden, counsel for NHS Trust)
The issues (and a concern) were starting to firm up in my mind at this point.
ED’s legal team wants some clarity about the detailed plans for his move to the care home, the considerations relating to the decision to discharge from the Mental Health Act section (and transfer to a Deprivation of Liberty authorisation) and the proposals for use of CCTV and family contact.
Counsel for the CCG argues that this is ‘micromanaging’ the case.
I was also very struck by the CCG’s use of language to frame and describe ED. Ben McCormack (counsel for the Local Authority) addressed my emerging thoughts:
“Two things. The CCG. ED was described as a ‘dangerous young man’. We don’t agree and don’t think that’s helpful. The aim is to get him out of hospital. We don’t think characterising him as such is helpful – of course he needs some care, needs looking after, but that’s the plan and what’s proposed. The Local Authority have their obligations. The second point – is this micromanagement or is it case management that the court needs to decide about? In most cases before the COP, the court has to clear the ground and understand everything before it. In the Local Authority’s view, there are many routes to agreeing a dispute. It’s not certain, he may be on s17 leave for some time, but if not, he’ll be deprived of his liberty by August or September. What’s the point in discharging these hearings only to step them up again? … Contact with family. How can the court decide without some evidence about this? We see it as a proper … we don’t think the other parties are asking too much of us, that’s why we agree it.” [Ben McCormack, counsel for Local Authority, Counsel’s emphasis]
I was relieved to hear Ben McCormack comment on the language used by the CCG to describe ED. I don’t know the extent of ED’s distress and how this might lead to ‘dangerous’ behaviours. It did not seem material to the issues before the court, however, which were about detailing plans for leaving hospital, monitoring and contact when he had left hospital. It might be the case that both he and others are at risk when he becomes distressed. As Ben McCormack pointed out, however, all this means is that ED ‘needs some care, needs looking after’. Framing the issues around ED being a ‘dangerous young man’ served no purpose here in my view, other than to cast him in a pejorative light. I can’t see much difference between this, and the (regular, in my experience) casting of all of someone’s actions and ‘behaviours’ being attributed to their ‘personality’ – usually in the context of the professional concerned looking for a way out of having to think more about how they might need to adapt in order to help. We all act and behave as we do because of our ‘personality’, mediated by our life experience, the environment we are in, how we are treated and the relationships we form. The (often throwaway) label of ‘personality’ explains nothing, really, other than to locate the problems in the person, and thus nothing to do with us!
HHJ Matthews QC gave a brief ex tempore judgement:
“The draft order is a proper use of the court’s powers. It is not micromanaging. The court would wish to know what the arrangements are likely to be. I understand this is complex care planning, I have no wish to frighten away the care provider. What’s being asked is not inappropriate or extensive. The court needs to know what the dispute is. It may assist to resolve issues. It may be helped by a round table meeting, and the court wishes to know how things are proceeding. The court needs to know that things are being handled better than in the past. The court has no wish to be premature or inappropriate but with that information the court will be in a better position on the 21 July. … I will adjourn but may determine it should be dismissed on 21 July.” I agree the Trust can be stood down at this stage. If it is appropriate then [ED’s mother] should sign the tenancy agreement. It is for the Local Authority and the CCG to decide [refers to paragraphs in the order].With the benefit of more information and time I may dismiss the application.” [Judge’s emphases]
I couldn’t have agreed more with this judgment.
I didn’t hear evidence that the care agency was being ‘frightened away’. I am not sure why a care agency would object to transparency about detailed care plans for a person who needed good, carefully arranged and executed plans to facilitate as smooth a transition and settling-in period as possible. We heard that, for ED, change itself is frightening and challenging to him. Why not do everything possible to make sure that this is planned out in detail?
I have observed many hearings now, ‘case management’ and ‘directions’ hearings, where exactly this sort of detailed planning is considered the business of the court. It has seemed to me, often, that without orders of the court, good intentions might not translate into actions, plans can go awry and Ps’ care can end up very badly handled.
As HHJ Matthews stated: The court needs to know that things are being handled better than in the past.
I am unable to attend the next hearing – if it happens – on (21st July 2022) and hope that someone can observe it to see how ED is getting on and report back.
Claire Martin is a Consultant Clinical Psychologist, Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust, Older People’s Clinical Psychology Department, Gateshead. She is a member of the core group of the Open Justice Court of Protection Project and has published several blog posts for the Project about hearings she’s observed (e.g. here and here). She tweets @DocCMartin
[i] Dialogue is reported as accurately as possible. We are not permitted to record hearings. It is possible that some words are missed, or misheard and reported inaccurately.
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