This time it’s Milton Keynes Council (MKC). I would introduce a naughty step in the manner of Nearly Legal, but that rather understates the gravity of the injustice in this case. As per the new transparency guidance, the Court of Protection has published a very succinct judgment, given by District Judge Mort, in the case of Milton Keynes Council v RR, SS and TT.
The case concerns Mrs RR, described by a friend as ‘very independent woman’, who had been a magistrate, run a craft business, regularly attended church and various local groups. She had lived in her home for 32 years and had ‘put down roots’. RR was diagnosed with vascular dementia in 2007, and in 2009 her son (SS) dissolved his business in Germany and moved home to care for his mother with his parter, TT. In August 2012 MKC received a safeguarding alert concerning ‘redness around RR’s left eye, bruising around her neck and along the right side of her face and neck and up to her temple’. They received two more in October, concerning cuts and bruising. MKC did not investigate these alerts. After receiving another safeguarding alert a few days later, MKC removed RR from her home in her ‘best interests’ whilst they investigated the safeguarding allegations, and placed her in a care home. They did not have any urgent authorisation under the deprivation of liberty safeguards (DoLS) for doing so, and a standard authorisation was not obtained until 14 days later. Neither did they apply to the Court of Protection for authorisation to remove RR from her home of 32 years.
When MKC arrived at RR’s home to remove her, she was unable to tell them how she had acquired the injuries and as her son was not there, they could not ask him about them either. According to the judgment, RR ‘willingly left her home’. (The judgment is frustratingly silent on what RR’s views were on what happened to her after this point – did she like the care home? Did she ask to go home? Did she have no views at all?!) Fourteen days after her removal from her home an authorisation for her detention in the care home was obtained under the DoLS, and after fifteen days MKC applied to the Court of Protection.
Whilst RR was in the care home, the safeguarding investigation continued for eleven months. During this time, RR’s contact with her son was restricted. After sixteen months, MKC decided not to pursue the allegations, and the police confirmed they would not be taking any action. A report by an independent social worker for the Court of Protection expressed the view that if RR were not responsible for SS’s injuries, then ‘RR should remain at the Care Home until a care plan was in place to support RR at home, at which point RR should return home.’
So, after this ordeal, did RR go home? No.
Public law issues in the Court of Protection
In September 2012, MKC announced that ‘it had determined not to fund a package of care for RR in the community and commented “It is felt that the Care Home is the appropriate placement for RR’s needs”’. No more is said – in the judgment – about the reasons behind this decision. RR’s litigation friend (the Official Solicitor) and her son consented to final declarations that Mrs RR lacked mental capacity to decide where to live and that it was in her best interests to remain in the care home, her son saying ‘that he had little choice other than give his consent as no more suitable residential option was available for RR. In any event he was not in a position to fund alternative arrangements given MKC’s decision to withdraw direct payments from him’ .
Hmmm… what has happened here? I want to preface what follows with a caveat: it is possible that a great deal of discussion did go on in court, or between RR’s legal representative, her family and the local authority, which did clarify the reasons why MKC refused to fund community based care. And it may be that they thought that was fair enough, although her son’s comments suggest otherwise. But I am worried about a possible alternative explanation: that MKC only ever offered one choice (the care home), and did not say what support they would put in place if RR actually went home. And that this single option – a care home placement – was accepted by the Court of Protection on the basis that its role is simply to ‘choose between the options available to the incapacitated person’ and not to review the lawfulness of public law decisions about resource allocation and compliance with community care statutes (as per ACCG & Anor v MN & Ors, 2013). I don’t want to be misunderstood as arguing that the role of the Court of Protection is to conduct a judicial review of community care law decisions, but I do think that there are good reasons to think that they must be able to require the local authority to explain what would happen if a person returned from a care home to their own home in order to make decisions about mental capacity and best interests.
To see this, let’s just imagine for one second that RR was agreed to have mental capacity. She’s in a care home and she has a home which she could go to: what is to stop her from doing so? Unless some dubious use of the Mental Health Act 1983 is proposed to force her to remain in the care home, there would be nothing to stop her simply going home (and even then, that might be successfully appealed by a Tribunal). At which point, the question would arise as to how she would be supported, given that she has actually decided to go home. Now, it might be that the council would say that since it is cheaper to meet all of her needs in a care home, they are only going to spend this much, and so she can either move into the care home or remain at home with unmet needs (or, the council might relent, and decide in the end to meet all of her needs, despite the cost). The point is, the option of going home is always on the table for a person with mental capacity, the question is simply how will they be supported and whether all their needs be met once they’re there. The Court of Appeal ruling in Khana v London Borough Of Southwark (2001) confirmed that the local authority cannot simply refuse to provide any support at all if a care home placement is refused:
Mr Drabble invites consideration of a situation, perhaps not uncommon, involving an elderly person living at home, whose needs are assessed as requiring the provision of a place in a residential home. If he or she refuses that proposal – on whatever ground, reasonable or unreasonable – the local authority cannot treat themselves as discharged from any further duty to provide community services (e.g. Meals on Wheels, or clean laundry) to him or her at home. I would accept that submission.
Yet there seems to be a real danger that in cases concerning people who are considered to lack mental capacity, very often there is no other option available of a return home. The case of CC v KK (2012) is a good example of this. Mrs KK’s mental capacity to decide whether or not to remain in her care home or to return to her own home was assessed without the local authority giving any clear indication of what support it would put in place if she actually chose to go home. How on Earth could anyone make a decision between remaining in a care home or going home, if nobody tells that person what support will be in place for them if they choose to go home? Baker J sensibly pointed out that ‘In order to understand the likely consequences of deciding to return home, KK should be given full details of the care package that would or might be available’.
So, before you even get to the point of assessing a person’s mental capacity, CC v KK suggests that there should be proper care plans for a return home, so that the person can make an informed choice between remaining in a care home or going home. I would argue that the same holds if the person is found to lack mental capacity and a best interests decision has to be made on their behalf by the Court of Protection (or others). As Eleanor King J pointed out in in ACCG v MN, the Court of Protection is supposed to be simply making the choice on the person’s behalf. You don’t have to be an administrative court to ask what would actually happen if the person went home.
Neither is the matter resolved if the local authority simply says that it thinks that a person’s needs cannot be entirely met at home and leaves it at that. As Eldergill DJ’s decision in Manuela Sykes’ case suggests, it is still open to the Court of Protection to send a person home, even if there is not funding for a fully adequate care plan to be put in place. If the Court can send a person home with an inadequate care plan, because that is all the local authority can afford, then it seems that even that inadequate care plan has to be produced as that is the plan of what happens if the Court decides (as the person themselves could if they had mental capacity) that the person should go home.
It strikes me that in order to properly assess a person’s mental capacity, and in order to make a fully informed decision on a person’s behalf, logic dictates that the Court must have adequate information about what would happen if the person went home. The Court is not exercising public law functions by asking about that, it is simply doing what the person themselves could do if they were regarded as having mental capacity. I’m sure I’ll shortly be corrected here, but surely this is just the kind of information the Court can call for in a report required under s49 MCA? Requiring the local authority to explain what it would do if the person went home is not the same as requiring it to put in place a particular support plan, it is simply asking whether – if the person went home – the authority would simply leave them without any support at all, or what else would it put in place?
It is of course entirely possible that the local authority might say that they would put in place no support at all if the person turns out to have mental capacity and chooses to go home, or if the Court decides that they lack mental capacity but that it is in their best interests to go home. This seems to be a dubious position under public law, given the passage from Khana, quoted above. But of course, the Court of Protection cannot get into contesting the public law legality of such a decision (unlike, ironically enough, the person themselves, who could make a complaint or initiate a judicial review). But the Court does have powers to order local authorities to produce a report, dealing ‘with such matters relating to P as the court may direct’ (s49 MCA). And surely – given the statement in Khana – it seems reasonable to direct it to produce a report explaining what the local authority would do if the Court decides to allow the person to go home. This isn’t about the Court ‘requiring’ or ‘ordering’ new options to be made available by the local authority, it’s simply asking the local authority what they would actually do in the event of an option that was never off the table, a return home. The local authority could of course turn up and say that they would do nothing to support a person (whom they have already said they think needs to be in a care home), should the court send them home. But my guess is that – especially in this new age of transparency and naming public authorities – no local authority is really going to write in a report for the Court that states that they would actually stand by and flagrantly breach their public law duties, and leave a person with no support at all, if the Court did decide to send them home.
As I said at the start, it seems possible that alternatives were canvassed and produced in this particular case but they were not discussed in the judgment. I discussed it because it flagged for me a nagging concern about the Court of Protection’s jurisdiction: that before we even get to the point of assessing mental capacity and making best interests decisions, the decision is already being made, disguised as a local authority exercising its discretion under community care law.
So if RR did not go home, what did happen to her? The Court of Protection gave MKC a serious ticking off, saying that ‘The initial failure of MKC to investigate the safeguarding concerns was deplorable, as was their failure to apply to the Court of Protection for authority to remove RR from her home.’ Similarly deplorable was their failure to tell RR’s son where she was for the first 19 days after removing her from her home. MKC acknowledged that it ‘would have been appropriate and best practice’ to have sought authorisation from the Court first, and said they have reviewed their safeguarding processes and training ‘to ensure best practice in future’. ‘Best practice’ seems rather of an understatement to me. What they did was unlawful, illegal, not just somewhat substandard practice. And as the Court pointed out, ‘This has come too late for RR’.
The Court declared that RR’s Article 5 ECHR rights were breached when she was removed from her home with no lawful authority, and that her unlawful detention continued until the DoLS authorisation was later made. It likewise found that her Article 8 ECHR rights had been violated. This reiterates the lesson of the ruling in Neary and, latterly, The Local Authority & Mrs D (2013), that local authorities must seek Court authorisation before acting in a high handed way which interferes with a person’s Article 8 rights. I don’t want to sound like I’m making excuses for MKC (or Hillingdon, or the mystery local authority in Mrs D’s case), but it’s not as if this duty has ever been clearly spelled out in statute, regulations, or even in guidance. No Secrets rather unhelpfully says: ‘The vulnerable adult’s capacity is the key to action since if someone has ‘capacity’ and declines assistance this limits the help that he or she may be given’, yet does not mention going to court anywhere in the document. To me, that’s just an invitation to violate the due process requirements of Article 8 ECHR. Hopefully if the MCA and DOLS Codes of Practice are revised, and if new guidance is issued under the Care Act 2014, the point at which local authorities must seek Court authorisation for ‘safeguarding’ and welfare related matters will be made clearer.
There is nothing in the judgment to suggest that MKC may have to pay damages to RR, although I suppose it is possible that an application for damages may follow. The judge ordered MKC to send letters of apology to RR and her son, which it had already prepared, within seven days. The Court lifted restrictions on contact between RR and her son, although it did establish various requirements for her to be accompanied when out with him to support her personal care needs.
There are a lot of imponderables, reading this judgment. Clearly the local authority can’t ignore the safeguarding referrals, but how else might they have proceeded. Had the local authority applied to the Court before removing RR from her home, what might the Court have done? Might the Court have required, as a condition of an emergency placement pending investigations, that the option of a return home be kept open and available? Might the Court even have decided that the allegations were not sufficient to require removal from her home at all, that other protective measures could have been taken? And what does RR feel about all this?!
Imagine it now. Imagine you are taken from your home of 32 years and placed in a care home away from your family, without any due process. Imagine that by the time the relevant investigations and bureaucratic processes are finished, your option of a return home has vanished, but the initial grounds for concern appear to have evaporated. Would you find that a court ordered letter of apology sufficient met the scale of injustice you had experienced? I doubt I would.