P v Surrey County Council & Anor

Throughout this judgment I refer to the applicant as P. P is a young man of 26 with severe learning disability and autistic spectrum disorder. He is the applicant in this case, acting through his mother, BR, as his litigation friend. She is also his relevant person’s representative in respect of the standard authorisation which is at issue in the case. P is represented by Peter Mant of counsel. Surrey County Council is the first respondent, being the relevant Local Authority. The Council is represented by Anna Tkaczynska. Surrey Downs Clinical Commissioning Group is the second respondent. It did not attend and was not represented at the hearing, certain issues concerning its role having been agreed.

I was provided with a bundle of documents in parts A to F. I read the applications, statements and reports and was referred to other documents in the course of the hearing. I heard the oral evidence of BR, P’s Mother, of Mrs AF, who is P’s non-appointed advocate, on behalf of the Applicant and Andrew Butler who was the officer of Surrey County Council who gave the standard authorisation.

The chronology in brief is as follows: on 5 September 2014 P moved to a care home when his previous placement, where he had been residing for some years, broke down in circumstances involving some urgency. On 3 October 2014 the first respondent referred P to Surrey Downs Clinical Commissioning Group, the second respondent, for assessment for NHS continuing healthcare. On 10 October 2014, following a safeguarding senior strategy meeting at the care home, P’s staffing ratio was increased from one to one during the day to two-to-one, and one-to-one at night.

On 6 November 2014, a multidisciplinary team completed the decision support tool. It was the joint recommendation of the first and second respondents that P met the criteria for NHS continuing healthcare.

On 24 November 2014 the care home issued an urgent authorisation for seven days’ deprivation of liberty in respect of P. On 23 December 2014 Mr Butler issued the standard authorisation in respect of P with an expiry date of 18 October 2015. On 19 January 2015, the second respondent, Surrey Downs Clinical Commissioning Group, accepted that P met the continuing healthcare criteria, but did not accept that it was the responsible commissioner.

On 12 February 2015 P applied, through his litigation friend, for consideration of the deprivation of his liberty and filed a statement of grounds and statement of fact. On 6 March 2015 P filed an amended statement of grounds. On 21 April 2015 the matter came before me for hearing. At that time the second respondent, Surrey Downs Clinical Commissioning Group, confirmed that it had accepted responsibility for funding P’s placement on a so-described without prejudice basis.

All parties were in agreement at the hearing before me that a particular Homes Caring for Autism placement was appropriate for P and that it was in his best interests to move to live there after a suitable period of transition. There is no dispute that I should make a declaration accordingly and I make that declaration.

The issues for me to determine are these:

As I have said, P was transferred to the care home on 5 September 2014 in urgent circumstances, his previous placement having broken down. An urgent authorisation was issued on 24 November 2014, by which time P had been residing at the care home in circumstances where he was in fact deprived of his liberty for 11 weeks and four days. The duration of the urgent authorisation, on the face of the document, is seven days, i.e. expiring on 30 November 2014. Although an earlier date, 10 November 2014, is shown at C49 of the bundle, that date has been crossed through and a purportedly corrected date of 24 November 2014 was recorded on the urgent authorisation signed by the manager of the care home. There was no evidence before me of any extension of the urgent authorisation. Mr Mant has argued that the fact that the date 10 November 2014 appears on the document at all invalidates it but I do not accept that. The date shown in the place on the form where the date is to be entered is 24 November 2014.

P did not have the safeguards of the DOLS scheme for the first 11 weeks and four days of his stay at the care home or for the period between the expiry of the urgent authorisation and the grant of the standard authorisation, a period of three weeks and one day. For the periods in question, totalling 14 weeks and four days, it is not disputed that P was deprived of his liberty applying the test in P (by his litigation friend the Official Solicitor) (Appellant) v Cheshire West and Chester Council and another (Respondents) andP and Q (by their litigation friend, the Official Solicitor) (Appellants) v Surrey County Council (Respondent) [2014] UKSC 19.

Upon the request for a standard authorisation being received, Mr Hill, a social worker and the best interests assessor, commenced a best interests assessment, which was completed on 23 December 2014. A number of important issues arise from the best interests assessment itself. First, BR, who, as I have said, was the relevant person’s representative in respect of the standard authorisation, had told the social worker that she did not believe the care home was a suitable placement for P because it was large, lacked a homely feel and because of the contrasting needs of the other significantly older service users resident there.

Secondly, BR had identified an alternative, in her view more suitable, placement in Somerset under the management of Homes Caring for Autism. Thirdly, Mr Hill, the social worker, recorded his judgment that P’s current care and accommodation amounted to a deprivation of his liberty and that it was necessary and in his best interests for a short period of time. Fourthly, the social worker’s identification of a broad consensus that P needed to be found ‘a more homely placement with other people using the service being closer to his age’. Fifthly, the social worker’s observation that the current placement, that is the care home, was the least restrictive option achievable ‘at present and in the short term’.

The views of AF, P’s non-appointed advocate, had been ascertained. She was of the opinion that the placement at the care home was not suitable for P, given the older age group of the other service users. She believed other placements have more specialist services and a younger client group that would not require the then current extent of two-to-one staffing to care for P as was in place at the care home after the review. She confirmed this in her oral evidence.

The social worker, Mr Hill, in his assessment recommended the maximum standard authorisation period to be 12 months. Mr Butler, gave the standard authorisation. He quoted extensively, as might be expected, from the assessment he had received from the social worker. However, Mr Hill’s words ‘for a short period of time’ were not included in Mr Butler’s reasons, nor were the words ‘in the short term’. The other requirements – age, mental health, mental capacity, no refusals, eligibility requirement – were all duly completed.

The period for which the authorisation was to be in force was entered on the standard authorisation as until 18 October 2015. In his oral evidence, Mr Butler said he was concerned that so long as P was at the care home, he would require the Deprivation of Liberty Safeguards. He also said that he considered the grant of authorisation would limit the need for further assessments.

Whilst it was not, in my judgment, at all unreasonable that P should have the benefit of the Deprivation of Liberty Safeguards for the duration of his stay at the care home – indeed, he was, on the face of it, entitled to those safeguards – the benefit had to be weighed against the supervisory body’s own obligation under Section 51 of Schedule A1, to decide the period during which the authorisation was to be in force. Mr Butler clearly did consider that issue in that he did not simply endorse the best interests assessor’s recommendation for the maximum period of one year.

However, in bringing his own judgement to bear on the question of duration in my judgment he did not take into account sufficiently, or at all:

Had Mr Butler done so, he would have authorised P’s deprivation of liberty for a short period of time only and requested that further detailed information about more suitable alternatives to accompany any fresh application for deprivation of liberty in respect of P’s stay at the care home be supplied. Mr Butler said in oral evidence that he had discussed the best interests assessment with the social worker. There was no contemporaneous record of their discussion but an alternative approach which would have been less restrictive of P’s liberty would have been to call for further information before granting the standard authorisation at all or for the duration in question.

What was, in my judgment, not open to the supervisory body was to do what it did, namely to receive un-contradicted information from three separate sources that the care home was only suitable in the short term or for a short period and then proceed to grant the standard authorisation for a substantial period, i.e. 80% of the maximum permitted duration. Having regard to the period of time that P had been deprived of his liberty prior to the urgent authorisation, the ultimate decision on duration is drawn into sharper focus. Furthermore, in my judgment, in deciding on the duration of the standard authorisation, Mr Butler placed too much weight on the desirability of avoiding further assessments. There was no evidence that the assessment by the best interests assessor had caused P any actual distress.

Miss Tkaczynska for the first respondent submits that I should place weight on the fact that P’s condition was such that he would always require to be cared for in circumstances where he was deprived of his liberty, therefore, the duration of the deprivation of liberty was not in breach of P’s rights. Furthermore, she submits that it was open to P or those acting on his behalf to apply to discharge the authorisation.

I am not persuaded by either of those submissions. Firstly, the deprivation of liberty authorisation relates to the circumstances in which P is deprived of his liberty, not to his condition, i.e. it is situation-specific, not person-specific. It does not authorise P’s detention in any other location, and so, on moving P to a different care facility, a fresh deprivation of liberty authorisation would have had to have been applied for. If the circumstances permitted there is provision in the rules to enable the application to be made in advance of the move.

Secondly, the obligation is on the managers of the facility where P is to be deprived of his liberty, on the best interests assessor and on the supervisory body to ensure that P’s deprivation of liberty accords with the least restrictive principles of Section 1.6. Considering that P had initially been unlawfully detained at the care home from 5 September 2014 and had been continuously deprived of his liberty at the care home, I do not consider it possible for the best interests assessor and the supervisory body reasonably to conclude that P’s stay there for a period totalling one year and six weeks amounted to the short period recommended by the best interests assessor, nor would it be reasonable to conclude that the standard authorisation actually issued was for a short period.

Miss Tkaczynska submitted that so far as alternative placements are concerned, the factors to be considered by the best interests assessor and/or the supervisory body are limited to those contained in paragraph seven of Schedule A1, the relevant hospital or care home being the hospital or home which is the care home or hospital the subject of the application. She further submits that in addition to the checklist factors of 5.13 of the code, the only alternatives that need to be considered are those which would avoid deprivation of liberty at all. I cannot agree with that submission.

In this case, following the placement breakdown that led to P’s placement at the care home, there has been no suggestion that P can be cared for reasonably safely without deprivation of his liberty. The issue has not been fully argued before me in this way, but there are clearly questions about whether in P’s case the need for deprivation of liberty is only binary, i.e. is or is not in P’s best interests, or whether questions of degree enter into the case.

For P, the staffing ratio at the care home is two-to-one. There is some recognition by staff that this interferes significantly with P’s freedom of movement, even within the care home, in that he will be followed wherever he goes by two members of staff. To reduce the interference with his liberty to the extent possible, the care plan is that one of those members of staff will position him or herself at a greater distance.

The social worker’s best interests assessment recognised the additional restrictions on P’s liberty by reason of the client group at the care home, which is an older client group than P himself. His opportunities for safe, positive interaction with his fellows is limited by this factor. This, together with the relevant person’s representatives and the learning disabilities advocate’s preference for an alternative placement to be considered, meant that unless and until a potentially more suitable, less restrictive alternative was properly considered, it was not possible for Mr Hill, as best interests assessor, to say that this was the least or a less restrictive alternative. By advising that these limitations led him to assess that the care home was only suitable for a short period, the best interests assessor was recognising the limitations of the placement and the impact of those limitations on P.

I cannot speculate how long it would have taken for the alternative proposed by the relevant person’s representative and P’s other parent and his non-appointed advocate to be fully investigated, but, in my judgment, given it was recognised that BR, the relevant person’s representative and his mother, was acting appropriately and in her son’s interests, as is clear from the assessment, it was incumbent on the best interests assessor to investigate her proposal to see whether in fact it offered a less restrictive, more suitable environment in which P could be cared for and, to the extent necessary in his best interests, to have his liberty circumscribed. The alternatives had to be considered by the supervisory body as part of its determination independent of the best interests assessor’s recommendation of the period for which the authorisation of deprivation of liberty would be granted.

In the case of London Borough of Hillingdon v Neary & Anor [2011] EWCOP 1377, Peter Jackson J posed the question, ‘Is the best interests assessment a thorough piece of work that adequately analyses the four necessary conditions?’ The answer in P’s case to these is as follows: a) yes, P was a detained resident; b) a qualified answer – it is in the best interests of P for him to be a detained resident, and the qualification is for a short period because the circumstances of his detention were not meeting all of his needs; c) a qualified answer – in order to prevent harm to P, it was necessary for him to be a detained resident, but not necessarily in this facility; d) no, or only for a short-term time would it be a proportionate response to the likelihood of P suffering harm, harm being broadly defined to include harm to his social opportunities and opportunities for maturation.

A tick-box approach to the analysis of the four necessary conditions was not, in my judgment, apposite in circumstances where the best interests assessment was that the deprivation of liberty would only be in P’s best interests for a short period. In my judgment, the best interests assessor and/or the supervisor body failed to analyse the four necessary conditions sufficiently. Had they done so, they would have asked themselves three questions:

Miss Tkaczynska in her submissions suggested that it was for BR, the relevant person’s representative, or AF, the non-appointed advocate, to prove that a place at the Homes Caring for Autism facility was available, and developed this argument by reference to an absence of documentary evidence as to availability. In my judgment, that argument misses the point. BR and AF both raised with the commissioner and with the social worker, Ant Fogadic, that they thought the facility run by Homes Caring for Autism was more suitable. BR said she had sent emails chasing up progress in relation to the Homes Caring for Autism home and I accept her evidence as to that matter.

The commissioner raised two questions about the Homes Caring for Autism home proposal: distance and cost. Distance related to the possibility of visits to P by his relatives and cost was clearly a relevant consideration. In my judgment, the relevant person’s representative, BR, and the non-appointed advocate, AF, did all that they needed to do to raise the possible existence of a more suitable placement. I reject the submission that they could or should have done more. They were under no duty to investigate the cost or availability of a room at the facility. Indeed, it might have been considered presumptuous if they had gone further than they did.

The first respondent had the duty to investigate whether a less restrictive alternative was available. It could not delegate its responsibility in this regard to the relevant person’s representative or the non-appointed advocate. It already knew that the care home was not suitable in the medium or longer term because it had been told so by the social worker undertaking the best interests assessment. Being in possession of that knowledge, the obligation was on the first respondent to be proactive, and they failed in that obligation.

It was submitted on behalf of the first respondent that it was not unreasonable to authorise P’s deprivation of liberty for 10 months on the basis that P’s relevant person’s representative or his family members could apply to discharge it. That is, in my judgment, the wrong approach. It is for the supervisory body to ascertain the least restrictive alternative, including the question of duration. It is not for the family to apply, although they have the opportunity to do so under the Act.