New home for man who lives in bathroom

By Celia Kitzinger, 23 May 2023

In July 2022, the man at the centre of this case (I’ve referred to him before as “Brian”) “retreated” to the communal bathroom of the care home where he’s lived since 1993, and has, in effect, been there ever since. I wrote about him a few months ago: “Man lives for months in care home bathroom“.¹

He’s in his 50s, with a long-standing diagnosis of a learning disability, plus autism with “unusually acute sensory needs”, and he “exhibits challenging behaviours”.  My understanding is that the bathroom is the only place he feels safe.  His parents are both dead. But for Brian’s Relevant Person’s Representative (RPR) bringing this application in October 2022, when Brian had already been effectively living in the communal bathroom for well over two months, the court might never have known of his situation.

At the previous hearing, on 9^th February 2023, everyone expressed concern about his “horrible situation” (Sophia Roper KC, counsel for the man via his litigation friend, the Official Solicitor), which was “hugely regrettable” (Toby Kippax, for the local authority) and “egregious” (Her Honour Judge Barlow).  At that stage, a solo-occupancy bespoke placement had been found, which met with the approval of the Independent Social Worker (Eleanor Tallon), but there was still quite a lot of work to be done to get it ready for him.  Also, arrangements needed to be made for how he would move from his current to his new home (‘the transition plan’).

This hearing, on 10 May 2023, was mostly concerned with the transition plan, about which there was some disagreement, in particular relating to risks associated with the possible use of restraint.  The plan is that Brian will be “encouraged, supported and asked” to get into the car to be driven to his new home.  It may be that he won’t agree to get into the car – and it seems quite likely that, even if he does, he won’t be willing to get out of the car on arrival.  If he won’t get into the car on the first day, the authorities plan to try again on a second day.  But then, if he won’t leave the car (on either day) there is a private provider standing by to restrain him and transport him to his new home. The Independent Social Worker (ISW) has identified a number of risks associated with (especially) restraint and “recommends that a wider multi-agency risk assessment should be formulated with everyone involved, so all the risks to which he’s exposed during the move, which are inevitable, are recognised and mitigated as much as possible”.  

Counsel for Brian via the Official Solicitor said that  the minutes of the MDT (Multi Disciplinary Team) meeting at which the ISW’s report was discussed “caused us some concern… the tenor of the meeting was quite hostile to the ISW’s recommendations”. She continued: “There is a strong flavour of ‘we are bored of this and we have worked very hard and done everything recommended and she just tells us to do more’”.  The local authority had not yet implemented all these recommendations.

Counsel for the local authority said the MDT “did and still do feel the plan will work on their analysis” and “don’t accept their plan was likely to fail”.  They acknowledge that the ISW recommendations “can only improve it” but are concerned that the additional work required to meet them could not be done in time for the following Tuesday, and would necessitate delaying the move.  This would be very far from ideal – not only because Brian would continue to live in a communal bathroom, but also because “he’s been given this count-down sheet with how many sleeps until the move, and so it’s about balancing that against the risk of things going wrong during the move” (Judge).  Counsel for the local authority added: “I don’t think there was ‘hostility’ to the ISW, merely ensuring that the implications were considered”.  As it turned out, however, having agreed at the MDT that “all professionals would use all reasonable endeavour to comply with the recommendations as set out by Ms Tallon”, it seems more achievable than had been expected, and it was hoped that it could all be ready on Monday so that the transfer could go ahead on Tuesday. 

The judge gave permission for the move to go ahead, with the proviso that if the Official Solicitor was not satisfied with the revised plan on Friday, she would make court time available at 4pm on the Monday to resolve any remaining disagreements. I was subsequently told the Monday hearing would not go ahead, so I deduce that the Official Solicitor was content with the final transition plan.  I assume, further, that the move did go ahead on Tuesday 16^th May (or on the follow day) and that Brian is now in his new accommodation.  The Official Solicitor asked for an immediate update on the move and the case will be back in court in mid-June to check on how Brian is doing.

I was dismayed by how long Brian had been left in the bathroom and horrified by some of the details of his life there. It was good to see professionals acting decisively and (the judge thought) speedily to resolve the situation once it reached court. The judge acted very much as a facilitator and mediator between parties in this hearing, supporting them in coming to an agreement about the transition plan. Her (placatory) view was that “this is one of those cases where no one’s quite as cross with each other as they think they are”.  She addressed the apparent frustration of the local authority by recognising their “remarkable achievements” in pulling out all the stops to get Brian rehoused quickly – at least after the lamentable delay in bringing the case to court in the first place, which was dealt with in the previous hearing (and was not mentioned today). She referred the “Herculean effort to get to this point”, commended the speed with which furniture and white goods had been purchased, and said “I don’t for a moment fail to appreciate how much work has gone into this case”, asking for that comment to be passed back to members of the MDT.  She also acknowledged that the professionals involved with Brian have other cases on their books and that because of their work with Brian, “other people are having to wait for their needs to be met”.   I recognise this concern. It seems to me that people whose cases come before the Court of Protection often get ‘gold star’ treatment – the court does its very best for them – but when there aren’t enough resources to go around, this may come at a cost to other vulnerable people.

Although this case clearly exposes some of the problems with the social care system, it’s also an example of the use of the Mental Capacity Act 2005 and the Court of Protection at its best. Brian had access to the justice system because, under the Deprivation of Liberty Safeguards (DOLS), he had been assigned – as should everyone in his situation – a (paid) Relevant Person’s Representative, i.e. “representation and support that is independent of the commissioners and providers of the services they are receiving” (Code of Practice (2008)). His RPR made an application to court under s.21A of the Mental Capacity Act 2005, challenging the standard authorisation for his deprivation of liberty in the care home – and Brian was provided with a legal team, through the Official Solicitor, to address his best interests. The court found it was in his best interests to move to another home, appointed a Panel deputy to support the financial planning for the move, and an Independent Social Worker who, as well as advising on the type of accommodation that would be suitable and making recommendations for the transition plan, also addressed his support needs and risk assessment more broadly, and the need for a positive behaviour support plan. An immense amount of time and effort has gone into putting right what has gone wrong in this case – and of course that has to be the right thing to do.

Celia Kitzinger is co-director of the Open Justice Court of Protection Project and has watched more than 430 COP hearings in the last three years. She is a prolific blogger and tweets @KitzingerCelia

¹_{In my previous blog post about this case, I expressed concern about what I understood to be a proposed ‘retrospective’ transparency order. I would like to put on record here that the revision to the transparency order did not in fact retrospectively prevent us from reporting any information from the earlier hearing. The revision added the name of the private care provider to the list of people/organisations that could not be identified, on the grounds that identifying this small private care provider was one of the pieces of information likely – in conjunction with other information in the case – to identify Brian (and preventing the identification of Brian has always been the underlying aim of the transparency order).}