By Daniel Clark, 14 November 2023
“At the moment I have no practical or viable options before me for the safe care and treatment of AB”. So said Mr Justice Keehan towards the end of this hearing, summing up the dire situation that the Court finds itself in.
This case (COP 12953545) has a long history, some of which is detailed in my blog post from August 2023 (“I am very concerned … that the current situation is not tenable”: High-risk behaviour and questions about jurisdiction“)
AB is a young woman who suffered a Traumatic Brain Injury, and had been engaging in behaviour that placed her at very significant risk of harm. At a hearing on 24th August 2023, after first establishing that the court had jurisdiction, Keehan J approved the order sought by the applicant local authority that it was in the best interests of AB to be conveyed to a specialist placement for a 12-week period of assessment. He authorised the use of restraint, if required, in order to facilitate this move.
I knew that this case was due back in Court in December 2023, and so I was surprised to see it listed (on the Royal Courts of Justice Daily Cause List) sooner than I expected – for 2pm on Wednesday 8th November, 2023. Wondering what was happening, I immediately asked for a link to observe, which I received well in advance of the hearing.
The case was heard via MS Teams, and Counsel were: Conrad Hallin, of Serjeant’s Inn Chambers, representing the applicant local authority; AB’s mother, CD, the first respondent, who represented herself as a litigant in person; Anna Datta of Parklane Plowden, representing AB via her litigation friend, the Official Solicitor; Scott Matthewson of Serjeants’ Inn Chambers, representing the ICB; and Julia Catherall of Browne Jacobson, representing an NHS Trust, to be added as a party.
AB was also present, as was her social worker. Although AB has not previously been present in court, the judge has stated on numerous occasions that he has met with her.
Back to square one
At the start of this hearing, I was dismayed to hear that AB was no longer in the placement that Keehan J had previously authorised. Counsel for the local authority explained that, “AB was sent on leave from [placement] for a weekend and wasn’t admitted back”. He said the local authority were “extremely surprised…given that the court had ordered a 12-week period of assessment”.
The position statement of the Official Solicitor, which I am very grateful to have been sent, clarifies this situation a bit more. AB had been deprived of her liberty at the specialist placement since early September, and she then absconded while on unescorted leave in late October. She was located in another part of the country, and refused to return.
The specialist placement then deemed she would be better treated at a hospital that specialises in the treatment of people with a ‘personality disorder’, but two subsequent Mental Health Act Assessments found her not to be detainable.
Since that weekend, AB had briefly lived with a distant relative who, as a result of “various incidents…wasn’t willing to continue to accommodate AB” any longer. As AB does indeed have a home to return to, she was not made homeless by this situation, and the parties agreed (as an emergency measure) that she should return there “in order to have a roof over her head”.
I then had a connectivity issue so was unsure of what was said for about a minute of the hearing. When I re-connected, Counsel for the local authority was explaining that AB has been offered support since returning home but she’s declined to engage with it. Recommendations made by Mental Health Act Assessors “are entirely contingent upon AB’s engagement and cooperation”. This ‘engagement and cooperation’ has not been forthcoming – which was the case prior to the Court’s involvement on this occasion. As counsel for the local authority put it, “that is effectively back to square one before the admission”.
Once again, and much to my frustration, the question of jurisdiction arose. This relates to the interplay between the Mental Health Act and the Mental Capacity Act, and whether the Court of Protection can have jurisdiction when P may be detainable under the Mental Health Act. This had been settled (so I thought) at the previous hearing and, as Counsel for the local authority put it, “it feels rather like Groundhog day”. As before, the local authority argued that the Court does have jurisdiction because AB has been assessed as not detainable.
I found this quite astounding, and a completely needless delay, given that (in my eyes, at least) this issue had already been settled. Counsel for AB and Counsel for the ICB did not have instructions on this point though did say they feel the same conclusion as before will be reached (i.e. that the Court does have jurisdiction).
By the end of the hearing, the judge stated that, “I am satisfied on the basis of the arguments set out in Mr Hallin’s position statement that this court does have jurisdiction in light of the very recently conducted Mental Health Act Assessment which concluded that AB is not sectionable under section 2 or section 3 of the 1983 Act”. He did however invite submissions to the contrary.
A further issue causing delay is that the Court does not really have many options available to it. Counsel for the Official Solicitor also stated that “the Official Solicitor feels they’re in a situation where they can’t recommend one way or the other. We don’t have the current information”. There are, ultimately, two basic options available.
The first is that AB is admitted to a low-secure unit under the powers of the Mental Capacity Act (that is, therefore, under a deprivation of liberty). The NHS Trust apparently did not have an option like this, and so the ICB may “need to cast the net wider”.
The second option was for AB to remain at home with some form of package of support. As AB has consistently expressed a desire to regain her autonomy, the Official Solicitor thinks that the best way to accommodate this would be for her to remain at home with a minimally restrictive care package.
Although the ICB’s position statement acknowledges the need for a meeting to take place, it also notes that three Approved Mental Health Practitioners believe that ‘a community based approach’ would best give AB ‘a sense of control’.
However, this suggestion was something that the judge did not seem at all happy about. The exchange between the judge and Counsel went something like this.
Keehan J: At the moment, at the very last paragraph of your position statement, you submit that the court may find itself in the position that for the time being it is in AB’s best interests to live at home. I’m not going to be persuaded that’s in her best interests.
Counsel for Local Authority: I understand why Your Lordship makes that observation. The local authority are unhappy with how this situation has arisen –
Keehan J: So am I.
Counsel for Local Authority: The question is, My Lord, I suppose potentially at least, is home with this minimal monitoring and AB not engaging with it all that there is. That’s unsatisfactory but if that’s all there is it may be an academic question whether that’s better than no roof –
Keehan J: Forgive me for interrupting you. The test isn’t the better interests, it’s the best.
Next steps
The judge then returned at the end of the hearing to the possibility that P may have to remain home with minimal monitoring . Having acknowledged a lack of “practical or viable options before me for the safe care and treatment of AB”, he said:
“If I ultimately find myself in the position that the only option is for AB to remain living in her home with effectively, because of her lack of engagement to date, no help and no support, I will not hesitate to give a public judgment making it plain those public bodies that bear responsibility for this young person living in circumstances which, not through her fault, present her at very very real risk.”
I thought that the judge’s frustration was quite palpable. The recent events, and therefore the situation the Court found itself in, was as a result of non-compliance with the Order he made in August. I find it quite remarkable that despite historical non-engagement and a court Order authorising a deprivation of liberty, the placement AB went to still allowed her to have unescorted leave. Without knowing the exact details of how this happened, it sounds to me like a complete failure of adequate risk assessment.
A theme returned to again and again in this hearing was that, in effect, this put everything back to square one. It seems to me that this has happened precisely because various actors have failed in the care of AB.
This case will return to court at the earliest possible opportunity. Though no date had been set at the end of the hearing, Mr Justice Keehan was quite clear he will make room in his diary for it.
Daniel Clark is a member of the core team of the Open Justice Court of Protection Project. He is a PhD student in the Department of Politics & International Relations at the University of Sheffield. His research considers Iris Marion Young’s claim that older people are an oppressed social group. It is funded by WRoCAH. He tweets @DanielClark132.
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