By Celia Kitzinger, 3rd November 2024
At the end of October 2024, a man in his forties with Down Syndrome and learning disabilities, was removed from his home and transferred to hospital against his own and his father’s wishes.
The ‘extraction and conveyance’ (as it had been referred to in the earlier hearing, reported here) went better than expected. No physical restraint was required.
The hospital assessed him, diagnosed Stage 5 kidney disease (which means he needs dialysis to stay alive) and inserted a tunnelled line. The subsequent dialysis sessions have gone well – and perhaps surprisingly – his father, who has never left his side, has encouraged and supported him to have this treatment while he’s been in hospital.
Now the case is back in court for the next decisions that need to be taken.
The Honourable Ms Justice Sonia Harris
The judge who authorised DM’s transfer to hospital is a new High Court judge, Ms Justice Harris, who only took up the appointment a month ago: there’s a photo of her (and some information about her) on the ‘new appointments’ website. She’s a family law specialist and was formerly a law professor at the University of Birmingham: she’s published books on family law, the future of legal education and the law profession, and aboriginal child welfare in Australia and Canada.
A few weeks ago (at the 18th October hearing), she made a difficult, but ruthlessly logical, decision not to authorise the immediate forcible removal of this vulnerable man (DM) to hospital until one more attempt had been made to support his father to bring him in voluntarily. That attempt was made the day before the earliest day that the forcible removal could be done (so didn’t delay his admission or treatment) – so although it didn’t work out, and it was necessary to implement the Trust’s plan (which she authorised on 21st October), involving a special ambulance and the police the following day, at least everything was done that could have been done to secure the father’s cooperation before moving to coercive measures. Other than creating some anxiety and uncertainty for Trust staff about the possibility of DM and his father turning up at the hospital earlier than expected, it’s hard to see any negatives to this. It was a good decision.
I was immediately struck by the judge’s supportive and facilitative approach to transparency. She told the three observers that we were “very welcome”, checked that we had the Transparency Order, and authorised sharing of the parties’ Position Statements, which her clerk then sent out to all three of us.
She’s obviously a desperately-needed appointment: when trying to find a date for a next hearing in this case, it turned out she had no availability for a one-day hearing before February 2025. It seems quite likely that when this case comes back to court, it will be heard by a different judge.
What are the issues before the court?
The problem now is that DM is medically fit for discharge (subject to recovery from a recently acquired respiratory infection which is expected to clear up after the weekend) – but he’s going to continue to need dialysis three times a week for the rest of his life.
If he returns home, it’s very unlikely that his father will voluntarily bring him to hospital, or to a clinic, for dialysis ever again. That’s because the father’s view is that there is nothing wrong with his son. The doctors, he says, are fabricating his son’s illness –in fact they want to kill him. He believes that professionals are not safe to be left with his son, and he stays by his son’s side at all times.
So, rather than let DM return home (which is what he wants and his father wants), the local authority is looking for a supported living facility for him. The judge was being asked to authorise DM’s deprivation of liberty in hospital until a suitable placement was found – which was envisaged to be 3-4 weeks, given that a potential placement had been identified and he was being assessed for it that very afternoon, as the court was sitting. A deadline of 22nd November was mentioned as a plausible date for a next hearing to authorise DM’s discharge to this placement, on the assumption that they would accept him.
What happened at the hearing?
The hearing lasted a little under an hour and the (represented) parties seemed to be in agreement on the way forward.
There was some concern that DM’s father, who has been joined as second respondent to the case, and does not have legal representation, was not in court.
On behalf of the applicant Trust (the Royal Free London NHS Foundation Trust), Victoria Butler Cole KC reported that there had been “strenuous efforts to persuade DM’s father to join the hearing” and there were “people on the ground with a laptop able to facilitate his attendance” from the hospital, but he’d made it very clear that he would not attend. He doesn’t believe that there are real court proceedings – he thinks the court orders are “fake”. The Trust is asking the judge to authorise DM’s continued deprivation of liberty in hospital, after he is fit for discharge. This is because they accept the local authority’s conclusion (not yet, as the Official Solicitor pointed out, endorsed by the judge) that DM should not return home but should move to a supported living placement as soon as practicable. In addition to the DOLS-authorisation, the local authority (said the Trust, who supported this) was asking the court to make orders against the father to allow them to assess DM when the father is not around (essential for a capacity assessment relating to contact between DM and his father, for example). Counsel for the Trust reported the advocates’ agreement that there should be no penal notice attached to these orders since it’s not clear whether DM’s father is capable of understanding the injunction, it’s unlikely that a penal notice would have a material impact on his compliance, and “no one can envisage a situation where seeking to commit him for contempt of court could be the way forward”.
On behalf of DM via the Official Solicitor, Sophia Roper KC reported that although the OS had given anxious consideration to DM returning home in the short-term (while a supported living placement is sourced), the view was that this is not likely to be successful – which I took to mean that DM would miss his dialysis appointments, with the result that the distressing ‘extraction and conveyance’ plan would have to be repeated “and is likely to lead to a greater degree of upset and trauma in the long run”.
On behalf of the Local Authority (the London Borough of Barnet), Katie Scott said that of the options available to the court, “remaining in hospital, though not very palatable, is better than returning home”. She ran through some of the (unsuccessful) efforts that had been made to support DM’s father to understand and believe that his son is ill and that the hospital treatment will help him, and said, “it’s almost impossible for [DM’s father] to comply with a court order that he doesn’t accept is real when he also believes that the hospital is trying to kill his son”.
Bad news
At 14:32, Katie Scott faltered in her submissions and then reported the contents of an email that had just appeared on her screen. “I’ve just been notified’, she said, “that the care providers who have gone in to see DM today are not going to offer him a place. That’s very disappointing. It would have been perfect for him.”
Suddenly it didn’t look at all likely that DM would be discharged on 22nd November after all. There was no backup plan – no ‘second choice’ placement possibility standing by. Everything was (in the judge’s words) “in undefined free fall”.
Counsel for the Trust said that they were not going to discharge DM if there was nowhere for him to go, but they’d already been “nervous” about keeping him in hospital three or four weeks after he was fit for discharge and now it looked as though a much longer time would be needed.
The Official Solicitor said she was “very unhappy at the idea that the timing will slip” and urged the local authority to take action (for example by “commissioning an independent social worker to do a desk top search”), making some rather sharp observations about the local authority’s failure to comply with a previous court order and the inadequacy of “pressures of other work” as a legitimate explanation for any future failure to comply: “The LA said they would make their ‘best efforts to comply’ with the order but last time they did not in fact comply and the OS is not making a fuss about it because we are all trying to find a productive way forward, but there will be a limit”. She also dropped in a concern about “the stage to which DM had to get to before this was eventually brought to court” – which I took to be a complaint about the local authority’s repeated attempts over some time (during which DM’s health deteriorated) to support the father to get DM to hospital for assessment and treatment before the Trust eventually brought the case to court. Despite the ‘inquisitorial’ (rather that adversarial) approach of the court, there is clearly some friction between the Official Solicitor and the Local Authority in this case.
It’s not clear now when the next hearing will be, or who will hear the case: the judge was over-committed already, she’ll investigate other judges’ availability (although 2nd December was mentioned as a possibility if a five-day-case she’s hearing in Birmingham doesn’t require the full five days). The judge is “maintaining hope that [DM’s father] will attend”.
The hearing ended rather sadly, with the judge saying: “I’m very pleased DM is tolerating the treatment and that his health is stable, but obviously there are significant concerns about where we go next”.
Reflections
Unfortunately, it looks as though DM (and his father, who will not voluntarily leave his son’s side) will be living in the hospital for many more weeks until a suitable placement is found for DM.
There’s also likely to be a problem with care and residence arrangements once a placement is found. The father wants DM to return home and will undoubtedly oppose his removal to a supported living placement. The point was made that he’ll want to simply move in with DM in his new home, which is why capacity and best interest decisions around “contact” need to be determined. The projected contact restrictions will be distressing to both father and son.
In the words of Victoria Butler-Cole KC, “it’s far from obvious what the right answer is in this case, and there are going to have to be some very difficult best interests decisions“.
From what I’ve seen of this case so far, I am optimistic that this judge (if she keeps the case) and these highly experienced, skilled and compassionate advocates, are in a position to arrive (eventually) at a solution that will cause the least harm and most benefit possible to DM and his father – although how they will do that remains to be seen.
Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 580 hearings since May 2020 and written more than 100 blog posts. She is on LinkedIn (here), and also on X (@KitzingerCelia) and Bluesky @kitzingercelia.bsky.social)
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