A Puzzling Application, Breach of Court Orders and Draconian Restrictions

By Hita Jadeja, 9th October 2024

This case concerns a young lady (P) with diagnoses of ADHD and Autism Spectrum disorder and with a history of self-harm.  She is currently in a rehabilitation placement following treatment at a mental health hospital.  

HHJ Burrows heard the matter (COP 14216532) remotely via MS Team, on 9 September 2024 sitting as a nominated Court of Protection judge at the Sessions House, Preston.  I received both the video link and transparency order in good time.

Present on MS Teams were P’s social worker, a representative from an NHS Foundation Trust, two solicitors – P’s solicitor and her colleague, P, P’s parents and another public observer.  Barrister for the relevant Local Authority (LA) was Ms Julie Warring Oriel Chambers.  P’s counsel was Ms Francesca Gardner | 39 Essex Chambers.  (Instructed via her litigation friend the Official Solicitor) 

After the hearing I requested position statements from both barristers, I am grateful to Ms Warring for sending the LA’s position statement (PS).  

The Hearing

The judge interrupted the LA’s counsel right at the start of the hearing, as she mentioned a point raised during the pre-hearing discussions, saying that there were two observers present, it would helpful to provide a case summary.  I am grateful to HHJ Burrows as this allowed me to fully appreciate the hearing.

From the opening summary, I learnt that P had been detained by the police under s.136 of the Mental Health Act (MHA) following a suicide attempt in March 2023. She was then sectioned (detained) in a mental health hospital under s.2 MHA and remained there under section 3 for about a year until a suitable placement was secured.  At this point a DoLS application was made, the restrictions include: inability to leave the placement, locked doors and windows during dysregulated episodes, and having her medication locked in a cabinet. It also appeared that there were restrictions surrounding contact, although I didn’t learn about these until later in the proceedings. 

HHJ Burrows added that before the matter came to the CoP, the LA had made applications to the High Court under the inherent jurisdiction when P was a child.  He also said that the Official Solicitor (OS) has made an application for a costs order against the LA for filing documents outside ordered timescales.  I was interested to see how the CoP deals with non-compliance of court orders.  I have commercial litigation background, and in my field, this carries the risk of high-cost consequences and the court’s approach (depending on the why, seriousness and significance of the breach) is generally not lenient in granting relief from sanctions. 

The PS provided further background. P has been diagnosed with ADHD and ASC, emotionally unstable personality disorder and anxiety.  There is a long history of taking overdoses, cutting and several attempts at ligature strangulation.  The judge referred to previous applications made by the LA.  From the PS, I ascertained that the LA had made an application for an order under the Courts Inherent Jurisdiction s100 of the Children Act 1989 and a short interim DoLS order had been granted.   At the expiry of that order, it was acknowledged at the hearing, that as P was subject to an order pursuant to s3 MHA, the court did not have jurisdiction to make a DoLS order, and the LA sought permission to adjourn the application with liberty to restore (i.e to return it to court) should P regain capacity and a placement is secured, before turning eighteen.  

LA’s Application & Capacity Assessment

This is a summary of the concerns and questions raised by the judge in relation to the LA’s application to withdraw proceedings on the basis that P no longer needs to be deprived of her liberty.

The judge asked the LA’s counsel if it is their position that P can be cared for at a placement that does not require her to be under constant supervision and where she would be free to leave.  LA’s counsel stated, yes but at the current placement the restrictions will remain (locked doors and windows, medication locked in a cabinet and not free to leave) and her care plan is geared around having therapy and support staff.  

The judge replied: “But your case is that she does not require those restrictions. Then picture a situation where P says ‘I want to go out on my own’ – what happens then?”  If P’s care plan states that she is free to leave, then it sounds unlawful if it is not in her best interests to be deprived of her liberty.  

If the LA state that the DoLS is no longer required because she has capacity, “what I want to know, is if I acceded to your application and the case is dismissed, what happens to P?”

The answer to this was that P can remain in her current placement until she reaches twenty-five years of age, and if she wishes to remain there, she will have to sign an agreement consenting to the current restrictions.  The LA will continue to look for a less restrictive placement: two have been found, however they are out the area/town to where P’s family live. 

The judge asked, “If the DoLS is taken out, has the LA properly assessed that it is fine for her to leave the placement?” Counsel for LA answered in the affirmative.

HHJ Burrows said that the LA’s application to withdraw proceedings is based on a capacity assessment carried out by P’s social worker.  P has been assessed to have capacity with regards to her residence.  This implies that P understands her care needs because where she resides is intimately linked to the delivery of her care.  

This he said was confusing. P has had turbulent years with various mental health problems: she has emotionally unstable disorder, dysexecutive problems, fluctuating capacity and during periods of being unwell she poses a risk to herself.  Leaving the capacity issue to one side and looking at the care plan, if she insists on going out when she wants to, either alone or mixing with whoever she wants, would that not expose her to considerable risk?

Counsel for the LA explained that historically there was risk on a daily basis, requiring restraint and restrictions.  Since being at the placement P has made a lot of progress: the last incident of self-harm was in early August and P is now able to better regulate herself.  

The judge said that P resides in a placement that can support two people and can operate a care package that P needs, but I understood that the operating model of the placement is that P will be subject to the same restrictions in terms of not being able to leave the placement when she wants – as the other person can’t. The judge raised a concern about this.  “If you were locked in because the person you are living with needs to be locked in, would you want to live there?

LA’s counsel replied: “No. The LA are looking for an alternative placement“.  P has expressed that she wants to move to a place with less restrictions – more of a supported placement.  The LA are looking at placements where there is an open-door policy, where she can have guests over and have a package of care to support her needs.

The Judge then turned to P’s social worker and commented that the assessment does not consider P’s capacity in relation to care and treatment which is linked to her residence; or whether P understands her welfare needs, her mental health problems and whether she understands what it is to live in a supported placement.

He asked P’s social worker to explain what it means to remain at the placement with and without the DoLS.  The answer was, she is not free to leave: doors and windows are locked and restraint is used if required.  “What is the reason for P not being able to leave the placement at the moment?“. The social worker replied, “because of the court order”.

HHJ Burrows stated that the court is here to approve P’s care plan.  Her care plan comes first, how can her needs be met, then apply the DoLS.  The court has authorised the power to use DoLS but it has to be in her best interests.

The LA’s position essentially was that P has capacity regarding her residence and that she understands all the restrictions that come with the placement, including restricted contact with her family (mentioned in the section below).  The judge was not convinced that she understood all the restrictions that come with her placement and whether they are in her best interests.  He therefore ordered that a psychiatrist should be instructed to provide a capacity assessment and comment on all aspects – contact, residence, litigation, care and, that it may be prudent to instruct an expert.  P’s counsel agreed that all areas need to be assessed and that she did consider a section 49 report (obtaining an expert report of P’s capacity) but the timescales in which the OS wants the capacity evidence ruled it out.  The judge agreed, stating it currently takes between 8 -10 weeks.  It was agreed, for now, whilst not ideal, that P’s treating psychiatrist who is engaged with the placement can be instructed to carry out the assessment.

The judge mentioned that the OS has commented that there has been a lack of care planning. He said, this may be those rare cases where an independent social worker might have to be instructed.  The judge added, this was not a criticism of P’s social worker as he does not know, what advice or support she has been provided with.  LA’s counsel stated that they do not accept that there has been an absence of care planning and that the social worker sees P fortnightly.

The judge further commented that the LA’s capacity evidence is in a state of disarray, there is no evidence of P’s capacity around care and treatment and yet it is asserting capacity as the reason to withdraw proceedings.  He questioned the LA’s counsel: “if I accept your application, P will be given an agreement to sign to stay at the placement, which we know she does not like. What if P does not consent to it? What would you do?”

She replied, “it’s between a rock and a hard place”.  The LA have found two other placements with twenty-four-hour support where there are no restrictions but they are out of area.  HHJ Burrows said he does not know the details of those placements.

P’s Mother’s view and P’s wishes

P’s mother was concerned about P’s safety if all restrictions were removed and if she could do whatever she likes.  In her opinion, P has not gone through enough therapies to allow for that kind of freedom.  She also expressed that P is bored at the placement.  Her mother explained that at some previous point in time (when exactly was not clear) she could visit P nearly every day, however that has changed and is now limited to two days a week for two hours.  This only allows time to take P out for lunch and feed the ducks.  P would like to go shopping but there is not much in the area and due to the time constraints, she cannot take her out of the town or plan other activities.  Other family members are not allowed to take her out which they could previously.

P’s counsel informed the judge that P was present on the link with her solicitor but is uncomfortable to switch on the camera.  The Judge greeted her and informed her that he will speak to her after everyone has gone off the link. We heard a “hi” from P.

Given that P has capacity to make her own residence choices, it’s curious (said P’s counsel) that restrictions have increased – as mentioned by her mother and also, she is not able to see her aunty.  P wants the restrictions to be reduced and she wants more meaningful contact with her parents. She also wants to go to a music concert with her friends which is important to her – the LA should set out whether she can go alone or supervised, if not, then to provide written evidence to back up their position.

Towards the end of the hearing, P’s counsel informed the judge that he has explored all her concerns so she would like to leave the link when everyone else does.  HHJ Burrows remarked, “sounds like I am being brushed off”. “ In the nicest possible way”,  replied P’s counsel.

Conduct & breach of court orders

P’s counsel made it very clear that the LA’s approach was impossible to understand – ranging from their lack of engagement, to their non-compliance with court orders, and (now) pursuing an application to withdraw proceedings.  She asserted that there had been a lack of communication from the LA, e.g. delays were never raised in advance and every single direction within the court order had been breached, including delayed disclosure of documents such social care records that the OS had requested. She only found out about P’s capacity assessment four weeks after it was conducted.  She invited the judge to reject the LA’s submission that this was due to staffing issues and, that the social care records were in possession of the relevant NHS Foundation Trust and not the LA.  She said that their conduct has simply been deplorable which has directly impacted P as the case has not been able to move forward.  Therefore, a punitive sanction should be imposed.

From my notes I cannot tell whether the judge or P’s counsel made the following point: the LA’s conduct also puts P at risk – if she does not consent to signing the agreement, she can no longer remain at the placement, and this potentially leaves a vulnerable young lady with complex needs homeless.

The LA’s counsel apologised for the breaches, explaining that the solicitor dealing with the matter left, the social worker was on leave due to illness and it took some time before a locum solicitor was appointed.  Secondly, the LA was required to obtain a lot of information in a short period of time.  She put forward that the breaches were not wilful or due to misconduct so the sanction should not be punitive.

HHJ Burrows stated that when the directions were made two senior people from the LA were present, there was no disagreement about the timetable: in fact, it was applied generously.  There has been no application for relief from sanctions to extend the compliance time, nor has there been an application to vacate the hearing knowing that the OS is without the requested information.  If this was a civil case, you would simply have to pay costs.  The threshold is higher in the Court of Protection, but it may well have been crossed here.  

Judgment

The judge did not grant the LA’s application and said he would give a short judgment – almost bullet points.  

This is what he said. 

“I am not being critical of the professionals involved in this case but there seems to be systemic problem at the LA in terms of retention and interface between the social service and the legal department.  This has led to the position of hosting an hour and forty minutes meeting on how to get evidence to support the draconian measure against P.

I am somewhat bemused at the application to withdraw proceedings.  P needs security, I have a suspicion in my mind that she might not have the capacity about her residence and care, and the contact restriction with her family has to be justified.

Stating that P can go back to the placement even if she has capacity, reeks of inadequate consideration of care planning. The OS is rightly angered, that had the documents requested been provided in time, the OS would have made proper decisions about proceedings, what steps are in P’s best interests, and a new capacity assessment could have been done in domains including care, capacity to litigate etc.  

P is better mentally and because of that a capacity assessment was done, which only considered capacity in the narrowest sense.  Nothing about her volatile mental health state has been considered by the social worker. 

How can the LA come to court and make an application to withdraw proceedings, the effect of which is P can do whatever she likes.  The alternative is to remain and sign an agreement and consent to the restrictions, that is unsatisfactory, and for the LA leaves open to a civil liability claim. 

Understanding P’s needs and care planning cannot be done without proper assessment.  This confront me with a problem: an inhouse treating psychiatrist is not independent, although it is a good start. P’s capacity for residence and care are intertwined, but we also need capacity assessments in relation to contact with her parents, friends and other family members including her capacity to use other forms of communication including social media. A short instruction letter to the treating psychiatrist seeking her views, will do – a paragraph on each domain above is sufficient.  

The LA and social worker need to consider proper care planning factoring the outcome of the capacity assessment.  Too much use of DoLS in a flippant way is serious, care planning comes first then DoLS.  At the next hearing, I will consider whether an independent social worker and section 49 report is required.”

The LA has been directed to have an outline of their updated care plan ready for the next hearing.  HHJ Burrows had also asked the LA to file written submissions by 4.30pm on 16 September 2024 so he can determine on the costs order that the OS is seeking and he will give his decision in writing.                                                       

A hearing has been fixed for an hour to be held remotely on 9 October 2024 at 10.00am.  Another hearing is also scheduled for the same time so there may be a delay depending on which party is ready first.  

Final Thoughts

The Court of Protection is said to be an inquisitorial court, and this was definitely a very judge-led hearing.  Shortages of suitable care placements is well known but in my view the LA’s application showed little consideration of P’s welfare and rights: as such it was reassuring to see the rigour with which HHJ Burrows tested the LA’s evidence and how their proposed plan would safeguard P’s interests.

Hita Jadeja is a solicitor with a background in commercial dispute resolution and inhouse advisory work who has an interest in health and social care law, Court of Protection work and mental health law.

Note: The judgment and quotations are based on my contemporaneous notes and not a verbatim account.