By Celia Kitzinger, 14th April 2024
In an earlier blog post (“Unusual restrictions” for a 17-year-old), Claire Martin reported feeling “very alarmed” by restrictions to which this young man is subject, in self-contained padded rooms, behind a locked door, with 4:1 supervision. The judge in that hearing, DJ Glassbrook, had said these were “extraordinary restrictions which require extraordinary justification”. He gave only interim authorisation of the restrictions which is what has led to this next hearing just two months later, before a more senior (Tier 2) judge, HHJ Rowland, sitting in Birmingham.
The young man at the centre of this case (COP 14169995) has “autism spectrum disorder”, “bipolar disorder” and “severe learning disability”. He moved to his current placement in November 2023, having previously been detained in hospital under s.3 of the Mental Health Act since 2016 (so for 7 years). The extreme restrictions are said to be necessary because “his condition leads him to be a significant danger to himself and others”. He will shortly turn 18 and the application before the court is to consider his best interests in relation to residence and care and in particular to consider whether the unusual restrictions applied are necessary and proportionate deprivations of his liberty.
The applicant local authority, Buckinghamshire Council, was represented by Francis Hoar of Field Court Chambers.
The young man, W, was represented via his litigation friend, the Official Solicitor, by Gemma Daly of Doughty Street Chambers.
His grandmother appeared as a litigant in person (also representing the united view of his mother and sister) having been joined as a party at the last hearing. Her contribution to the hearing was very significant. She disagreed with the Official Solicitor’s perspective, explained the family view succinctly and clearly, and the judge seemed entirely persuaded. “Thank you”, he said, “it’s the family who are the experts”.
Here’s what happened.
Most of the hearing was spent going through the draft order, which I didn’t have a copy of so it wasn’t particularly easy to follow exactly what restrictions the judge was being asked to approve. I heard that the bedroom and living area are padded and both doors – one to the garden and one to the staff office and kitchen area – are locked. He’s not free to leave the placement without support from staff. The garden is fenced and there was mention of his trying to scale it in the past, which is why he needs supervision in that area. I gather that physical restraint is also used.
There was some discussion of something that sounded like “ProAct Skip” and when I googled it after the hearing I discovered PROACT-SCIPr Methodology which is a Positive Behaviour Support practice. Staff encourage a “Positive Range of Options to Avoid Crisis” (e.g. a choice of bath or shower; a choice of what to eat; a choice of TV channels) while attempting to reduce restrictive practices (e.g. he was previously supervised while sleeping at all times and is now only checked every 15 minutes). The methodology also uses Therapies (e.g. sleep therapy has been identified as a need for this largely nocturnal young man).
The Official Solicitor then raised her particular concerns which related to the use of “seclusion”. Although she’d not put in a formal application, she raised the likely need in future for a jointly instructed independent expert to address this, and other aspects of the restrictions.
“One of the consequences of W’s condition is that he will often charge – he’s a strong young man – he will charge at staff, and because of his strength that can obviously present a risk to himself and to his staff. So, if he runs or charges at staff, they leave the padded area and retreat behind a locked door and monitor W via an observation panel. The Official Solicitor suggested, and it is agreed, that detailed records must be kept of any such incident of seclusion and staff must unlock the door when he’s no longer charging. We have asked for a narrative description of incidents when W is left alone in the padded area in response to incidents that challenge. […]. There is very limited information currently as to the frequency and duration of these seclusive episodes. On the balance of the evidence, the Official Solicitor cannot submit that this practice is necessary and proportionate. We cannot agree that the court should authorise seclusion at present – or what would be “seclusion” if in a Mental Health Act setting[1]. This is a highly restrictive practice. We cannot agree that it is appropriate and should be authorised by the court. And it is not in the care plan that detailed records must be kept – so if the court is not with me on this, then that must be added. There is no formal application for an independent expert before the court, but my instructing solicitors have inquired of three different Independent Social Workers in the last two days since the seclusion issue became apparent. This case is very likely to require expert evidence”.
The grandmother was then asked if she had anything she wanted to say.
Grandmother: I may not understand 100% everything that’s been said because this is all very new to us as a family, but I do have some concerns about what the Official Solicitor has said. It’s really essential that W has some time away from people. He will charge at them because he wants people out of his sight, and he can’t verbalise that.
Judge: So you think he’s regulating himself?
Grandmother: Yes. And when he charges he can injure himself and others, which is why people have to leave. Last time I went, he charged at me and the carers but they were able to go back in quite quickly.
Judge: How long was it before you went back in?
Grandmother: I didn’t go back in. I will be honest, he frightened me. He’s a big lad, nearly 6 foot, and I’m a small disabled lady. But staff were back in in five minutes. If he charges, it’s because he doesn’t want them there. From a family perspective, they’re doing exactly the right thing by leaving the room and giving W the space he needs. The problem is- I’m sorry if I’m speaking out of turn, I don’t know, I find it very difficult but I’m his expert and my daughter is his second expert, and what we want is to keep W safe, and the people looking after him. We do want the staff to be protected as well. The history is that he’s injured staff, and staff have been hospitalised and staff have left because of stress and not being able to cope and that affects his care. The other thing is, I will not support another expert coming in and making judgments about W at this moment in time. Mr M [Note: I don’t know who Mr M is or what is role is] has been absolutely brilliant, and he comes from an external organisation. Also, we’ve engaged with the CQC with regards to looking at DOLS and they’ve extended their remit and they’re an external organisation and they’ve gone in and monitored his care. Introducing new people to W is difficult and it’s difficult for the family and for professionals too. We’ve all got enough to do. I hope I haven’t spoken out of turn, Your Honour. We love W and we want him to be safe, and his current placement has been absolutely brilliant.
Judge: Thank you. It’s the family who are the experts because you are the person who has known him for the longest.
Counsel for LA: Do you want me to respond on seclusion?
Judge: I don’t need you to respond. I will leave in [the paragraph of the order dealing with seclusion] with additional wording in bold. I have some sympathy with the concerns the Official Solicitor has raised about practices of seclusion, but it seems to me that one can see, inferentially at least, the justification for it in W’s best interests – and in terms of the proportionality of this step, given his practice of charging at others, which gives rise to the potential of injury to himself and those who are caring for him. But I do need some understanding of how the practice is used, how frequently and for what duration. And I won’t make an order today for expert evidence. That needs to await a proper application, but it also needs to be considered in light of what Mr M has to say – assuming he’s provided reports to the local authority about how W can best be managed.
Counsel for the LA: I would add that although the seclusion is in part to manage the risk to the care support workers, that’s also a matter of concern to W, because of the risk they’ll leave the placement.
Judge: Continuity of care is very important because he’s beginning to establish relationships with these people, which is very important.
The next hearing will be on 24th April 2024, before HHJ Rowland in Birmingham.
Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 500 hearings since May 2020 and written more than 100 blog posts. She is on LinkedIn (here), and tweets @KitzingerCelia
[1] Seclusion is defined in the Mental Health Act Code of Practice as follows. “Seclusion refers to the supervised confinement and isolation of a patient, away from other patients, in an area from which the patient is prevented from leaving, where it is of immediate necessity for the purpose of the containment of severe behavioural disturbance which is likely to cause harm to others” (para 26.103)
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