Man lives for months in care home bathroom: “An egregious situation”

By Celia Kitzinger, 22^nd February 2023

The man at the centre of this case is in his mid-50s and lives in a care home – or more specifically, in a communal bathroom of a care home. He “retreated” to the bathroom more than six months ago in July 2022  “where he has essentially remained and emerged on only limited occasions”.  

He has learning disabilities, autism with “unusually acute sensory needs”, and he “exhibits challenging behaviours”.  My understanding is that the bathroom is the only place he feels safe.

There was agreement in court that this is an unacceptable living arrangement for him: it’s a “horrible situation” (Sophia Roper KC, counsel for the man via his litigation friend, the Official Solicitor), “hugely regrettable” (Toby Kippax, for the local authority) and “an egregious situation” (HHJ Melissa Barlow).  

The hearing

The hearing (COP 14000147) was before Her Honour Judge Barlow sitting (remotely) at Bristol Civil Justice Centre on 9^th February 2023. 

I was surprised to learn that it was not the local authority who made this application (back in late September 2022) but the man’s representatives who took the initiative and asked the court to do something about the situation. 

It was a very short hearing, basically because there was nothing for the judge to do at this stage. 

Counsel for P

Summarising the situation at the start of the hearing, counsel for “Brian” (my pseudonym for the man at the centre of the case) said that the position was that “after several months of first somewhat abortive attempts to consider alternative care homes, some delays in bringing the matter to court, and some going around the houses in the usual way” there is still no draft order before the court authorising a move for Brian to somewhere more suitable to live. 

This is, she said, “a very grim situation for him, and the Official Solicitor has been extraordinarily anxious about his position”.

A report from Independent Social Worker [ISW], Eleanor Tallon, has been “very helpful” and led the local authority and Integrated Care Board to search for “a much more targeted placement”.  One has been found which the ISW says is able to meet Brian’s needs.  

“There’s a lot of work to be done, and there’s an optimistic, positive and energetic team ready to start very soon on the adaptations required at the property – in particular installation of a bathroom.  There are some potential headaches, including asbestos, some of which can be safely left alone and some of which can’t. There’s a cautious estimate of 10-12 weeks for it to be ready for him to move into. Nobody is suggesting that this further wait is good, but nobody’s suggesting it’s other than the least worst option. A question that might occur to the observer is why hasn’t anyone thought about an interim move, and the answer is, we have, but that’s likely to make things worse and would precipitate a further decline.  We did briefly consider whether he could be moved before the building work is completed but that’s likely to cause disruption to the start of the placement.” (Counsel for P)

She added that the Official Solicitor’s view was that “lessons should be learnt from what has happened in the past”.

Counsel for the LA

“The LA’s position is that we absolutely recognise [Brian’s] situation is hugely regrettable but in terms of context, he’s lived here for 30 years, and he struggles with any change, even the smallest degree of change. The local authority was undertaking regular reviews and prior to his retreat to the bathroom there was no indication that it would be appropriate to change his placement.  Unfortunately, his retreat to the bathroom in July 2022 was unforeseen in terms of its duration.  He had retreated to the bathroom before, but it would be for a short period, and he’d come out after the unsettled period. The significant precipitating factor here is that he’s not come out – but before changing his placement it had to be something dramatic, given this is his home of 30 years and he finds change difficult.  Finding a placement where his sensory needs could be met and with a high quality of care was difficult.  However, we have now found somewhere for his single occupation. It’s unfortunate that it’s taken as long as it has, but it’s a complex process, and it’s certainly not for want of trying on the part of the commissioners.” (Counsel for the LA)

Judicial comment

The judge said that it wasn’t “what the local authority has done since it became involved” but rather the way the situation was allowed to continue beforehand that concerned the court and the Official Solicitor.  “It’s how when P retreated to the bathroom, and stayed there, it took such a length of time for any positive action to be taken… Everyone appreciates the difficulty of finding a new home, but whether those difficulties have been exacerbated by what has been allowed to come to pass….”.  

She ended the hearing on a slightly more up-beat note: “It’s not for me to investigate what went wrong. I’m not apportioning blame.  We are where we are.  This is an egregious situation and I’m glad something has been done about it”.

The next hearing is listed for 4^th April 2023.

Reflections

I was told that counsel had not prepared position statements, so I was totally reliant on what I heard in court in reporting on this case. I did ask counsel for Brian for a previous position statement from one of the earlier hearings (there have been about ten) to enable me to get a better sense of the background to this case, but did not receive one. I am left wondering about how Brian and the care home have been coping all these months. For example, is he sleeping on the bare floor or have they moved a bed into the bathroom?  Does he come out for meals or eat his meals in the bathroom? Does the bathroom ever get cleaned? How is this working out for other residents who might want to use the communal bathroom?

This was a disturbing hearing to watch because it was abundantly clear that something had indeed gone badly wrong and – as ever in the Court of Protection – the focus is on putting things right, rather than interrogating the past. I often feel, as an observer,  that there are a lot of lessons that should be learnt from past failings (frequently involving delays) apparent in the management of many cases that come before the court. But in fact, I see little evidence that anyone does draw out such lessons, or that what has happened is analysed sufficiently to permit systemic change.  Perhaps there’s simply no slack in the system to allow for that.

I’m also disturbed by the way transparency was managed in this case. It was listed as a public hearing, and I was told at the outset that there was a transparency order “in conventional terms” (counsel for Brian) and was sent one with the usual restrictions.  A week later – after I’d asked whether an earlier position statement might be available to help me understand the background to this case –  I received subsequent correspondence suggesting that additional reporting restrictions might be sought, that go beyond those in the ‘standard’ reporting order I’d been sent. I requested further information – which I’ve not received a week later.

Obviously, I don’t want anything in the way I’ve reported this case to cause Brian harm (e.g. because people who don’t already know him and his situation might recognise him from this description, breaching his right to privacy).   

Equally obviously, I’m alarmed at the harm that has already been caused to Brian by the circumstances he’s been living in, and I want people who read our blog posts (who are predominantly professionals working with the Mental Capacity Act 2005) to know about what’s happened, and to be alert to the risk of such situations in future. That’s one of the few ways in which there’s at least some chance that  “lessons” can be learnt. 

I’ve written previously about both delayed and ‘retrospective’ transparency orders (e.g. here and here), pointing out their chilling effect on transparency in the Court of Protection. 

Celia Kitzinger is co-director of the Open Justice Court of Protection Project and has observed more than 400 hearings since 1^st May 2020.  She tweets @kitzingercelia