By Daniel Clark, 17 December 2023
The person at the centre of this case (COP 14072451) is an 84-year-old lady, currently deprived of her liberty in a nursing home. She is unhappy with the situation and is objecting to her placement there – which has led to an application under s21a of the Mental Capacity Act 2005.
Despite these proceedings beginning earlier in 2023, the local authority (Hertfordshire County Council) has failed to produce the evidence that the court ordered they provide.
This hearing was before His Honour Judge Beckley (sitting remotely, via MS Teams, at First Avenue House) on Friday 14th December, 2023. People present at the hearing were: Rebecca Handcock, of Field Court Chambers, representing SS via her litigation friend, the Official Solicitor; Umar Kankiya, representing the respondent local authority, Hertfordshire County Council; and the protected party’s new social worker.
Background to this case
I am extremely grateful to Rebecca Handcock who gave a very detailed opening summary of this case, which greatly helped in following the hearing. She also provided me with a copy of her position statement.
The lady at the centre of this case was referred to by her first name during the hearing and as SS in court documents. I have chosen to refer to her as SS in this blog because I feel this is the only appropriate way of acknowledging her personal identity without further taking away any control.
She formerly lived independently in the community, with the support of carers and a cleaner for around seven years. This “reportedly was not working well”, her living conditions deteriorated, and she moved (in 2022) to a care home for a one-year period. As a result of a development in her care needs, SS then moved to a nursing home, which is the placement that she is currently objecting to.
SS is registered blind as a result of Macular Degeneration, has a number of health conditions, and is diagnosed with both Depression and a Personality Disorder (the type was not stated). SS receives the support of two staff for assistance with personal care “because she can be resistant”. As a result of mobility issues, she has a specialist wheelchair that makes accessing the community very difficult.
SS has three children. One is a respondent in the proceedings but has so far only submitted the paperwork expressing a wish to be joined as a party. For a while, this son was the only child with whom she was in contact, though it now seems another of SS’s children has begun to initiate contact.
With regards to the current placement, SS has told her representatives “that she’s unhappy in the placement, that she’s lonely, that she wants to visit shops, that she wants to make friends… She’s offered activities in line with the general activity programme but she declines”.
She is also Jewish and keeps a kosher diet. However, because the home is not a specialist Jewish placement, she eats only ready meals and pre-packaged foods. It is also “not clear whether she has been offered access to a Rabbi”.
At the last hearing (which I believe was in September 2023), the court had sight of a s49 report from a doctor, who’d assessed SS’s capacity. The position statement on behalf of SS says that the parties and the court “agreed that it is defective”. I won’t list all of the problems with the capacity assessment (the position statement lists six) but the primary reason is that it does not identify “which of SS’s diagnoses constitutes an impairment of disturbance in the functioning of the mind or brain for the purposes of the diagnostic test in respect of SS’s capacity”. Furthermore, it does not specify how SS has been assisted in her decision making, and seems to suggest that her understanding of the fact that she resides in a nursing home but would rather be at home is in and of itself evidence that she is unable to understand the relevant information.
It was agreed that the parties could ask further questions of the capacity assessor who wrote the report. There has been no response from the Trust since then and it turns out that it’s not clear whether the Trust ever actually received the request for further clarification. While Counsel for SS sought an order that the request was re-sent, she was clear that “we don’t intend any criticism of him [the report author] or the Trust”.
The Official Solicitor had also asked for details on how the home had facilitated SS’s celebration of Hannukah but this has not been forthcoming. However, it was understood, following pre-hearing discussions, that they had put up decorations to mark the celebration.
The “multiple failings” of Hertfordshire County Council
It was becoming clear to me at this point that this hearing was pretty much a re-run of the previous hearing. There was, according to Counsel for SS, a “tranche” of evidence that had been asked for from the local authority. This includes, but is not limited to:
- Details of the activities that SS is offered
- Details of the cultural activities which can be offered, including a visit from a Rabbi
- An update on a referral to wheelchair services
- The results of a search for an alternative placement which is either specifically for the Jewish community or which has a significant number of Jewish residents.
It had been expected that this evidence would be filed by the end of October 2023. It was now mid-December, and it still had not been filed.
Counsel for the local authority apologised for what he described as “multiple failings”. He explained that there were, in essence, two reasons for these failings.
On the one hand, he explained that he “dealt with a few personal issues around the time the information was to be due, so I took my eye off the ball”. It is, of course, inevitable that personal circumstances can interfere with work: lawyers, like everybody else, are not robots. However, as the judge rightly pointed out, there needs to be a system in place whereby a local authority’s legal department can ensure cases are covered. In essence, this is a system failure, and the judge was assured that procedures have now been put in place to prevent this happening again.
On the other hand, counsel for the local authority also explained that the other reason for these failings is that “there has also been a change in the social work team”. SS was allocated a new social worker (it was unclear why) and counsel for the local authority was “notified of that after I was chasing up the information.” This spoke to “miscommunication that’s occurred within our team with regards to cascading information”.
The judge was keen to know whether there was immediate handover between the two social workers or whether there was a period when SS had no allocated social worker. SS’s current social worker explained that “there was a brief period where there would have been a gap”. When he was allocated the case, there was a gap while he got up to speed – though he stressed the home would have been able to contact the social work department if there were any concerns. Thankfully, the social worker has had some involvement with SS in the past and has met her recently.
The judge acknowledged that local authorities are facing “severe strains…but…someone as vulnerable as [SS] should not be left without a social worker…. This is an 84-year-old very vulnerable lady who has been very sorely let down by the local authority in this case”.
The judge made an order that, in the main, repeated the contents of the last order because of the relevant evidence not being provided on time.
Reflections
I was very concerned by this case. The judge did note that the home itself is pleasant, that SS is able to access the grounds, and that she does not have any complaints about the carers. However, it remains the case that in failing to provide the evidence they were ordered to provide, the local authority have perpetuated a situation in which SS is unhappy.
I also find it unacceptable that SS is a Jewish person who, it appears, has not even had access to a Rabbi. Unfortunately, this is not particularly surprising. When working in care, I had to advocate for a Catholic resident to have access to a Catholic priest rather than the Anglican priest who frequently visited residents. This should not have required any level of advocacy. Religion is an integral part of a person’s identity, and a person should be able to experience and express it regardless of where they live.
I am also concerned at the thought of how many other people are in a situation similar to SS, stuck in a situation that makes them unhappy in a local authority that is not appropriately responsive. This is not a case where individuals are at fault. Rather this is the fault of rigid systems that are underfunded and understaffed. As ever, it is the most vulnerable who suffer.
This case is listed to return to court on Wednesday 13th March 2024, at 10:30am.
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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