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Court finds local authority in ‘blatant disregard' of Mental Capacity Act processes

Patient returned to care of her family

In Somerset v MK (Deprivation of Liberty: Best Interests Decisions: Conduct of a Local Authority) [2014] EWCOP B25, HHJ Marston has ordered that P, a 19 year old woman who was being accommodated as a respite for her mother, who cared for her, should be returned to her family after the local authority had sought to have her retained in the placement. The judge said that there had been a 'blatant disregard of the process of the MCA and a failure to respect the rights of both P and her family under the ECHR'.
P had severe learning disabilities and autism spectrum disorder.  She lacked verbal capacity and communication was through gestures and pictures.  She lived within her family and attended a specialist school.

In May 2013, she presented at school with extremely challenging behaviour and distress to such an extent that she was returned home. The next day, the mother noticed bruising on P's chest – she informed the school and contacted her GP.  Later that week, P's mother went on a holiday abroad for two weeks and arranged for P to be in a respite placement.  She informed the staff of the bruising; however, when further bruising was observed, P was examined by a consultant paediatrician.  The paediatrician was not informed about P's presentation at school (including that P had been observed hitting herself in the chest, she had taken staff to the ground, and been restrained) and concluded that the bruises were unlikely to be self-inflicted.  As a result of the medical report it was decided that P would not be returned home. 

Various capacity assessments made it clear that P did not have the capacity to make decisions about where she should live.  Despite the dispute about what was in P's best interests (the mother made it clear she wanted P home), the local authority did not make an application to the Court of Protection or consult with other family members about whether P could live with them in the short-term.

P remained in the respite placement until November.  She became increasingly agitated and was prescribed an anti-psychotic with a sedative effect – the family were not consulted about medication.  The judge found that this placement, which was intended for respite care and included up to 10 occupants all with learning difficulties, was clearly inappropriate for P and concluded this should have been "stunningly obvious" to social workers. 
In December 2013, the first deprivation of liberty assessment was carried out and a standard authorisation was granted by the local authority authorising the deprivation of P's liberty. 

The local authority issued proceedings in mid-December 2013, 6 months after P was removed from her family and her mother requested her return.  The local authority argued P should not be returned due to the bruising, the past history of child protection issues and concerns about a sibling.  At a hearing in December, a District Judge made interim declarations about P's lack of capacity and that it was lawful and in P's best interests to continue to reside at the assessment unit.

By March 2014, the local authority conceded that P had been unlawfully deprived of her liberty from June to November, contrary to Article 5 ECHR and conceded that there was a breach of P's and her family's Article 8 rights.  The local authority no longer pursued findings about the bruising. Despite accepting its previous 'procedurally inappropriate and unlawful actions', the local authority still proposed that P's remain in local authority care.

As to P's best interests, the judge undertook a balance sheet exercise and found the following in favour of P being returned home: P's wishes, her family's wishes, P's and her family's right to family life, at home P would not be subject to deprivation of liberty, concerns about the bruising were abandoned, the Official Solicitor supported her return, the ISW supported her return, none of the findings on the schedule prevented return home, and that there would be a degree of co-operation between family members and the local authority.  The only argument in support of placement in a specialist home was that the local authority was of the view that P would reach her full development potential in a specialist home.

The judge concluded that the balance came down in favour of P returning home.  Whilst he did not undervalue her reaching her full potential, this could be addressed by a careful support plan.

In evidence, the senior social work manager accepted that there was no understanding of the law in this area by the social workers and local authority lawyers.  Both individuals and the philosophy behind their actions were wrong.  There had been no consultation with the family throughout the process and no consideration of the impact on P.  The judge found that if there had been a proper open-minded investigation into the original bruising, there would be no basis for a finding that P should not return home.

The judge concluded that there was 'no question' that P was unlawfully removed from her family from the scheduled end of the respite care in June.  Whilst the local authority had a duty to investigate the bruising, a conclusion should have been reached within a week and if the local authority did not conclude she should be returned home, they should have immediately applied to the Court of Protection.  The case had "many depressing similarities" to London Borough of Hillingdon v Neary [2011] EWHC 1377. The Article 8 breaches continued to the present due to the blatant disregard of the process of the MCA 2005 and a failure to respect the P's and her family's right to family life.

For the judgment and summary, by Ariel Ricci of Coram Chambers, from which this news item is derived, please click here.