W, Re

This is a case which is all about the capacity and, more importantly in this case, the best interests of a lady called CW, who is now aged 50. The application was brought as a section 21A challenge to a standard authorisation made by West Berkshire District Council, which is the supervising authority. The applicant is HH. She is CW’s sister and relevant person’s representative. As a matter of case management, when the proceedings came my way, I joined CW as a party in her own right and invited the Official Solicitor to act for her as litigation friend. I am pleased to say that the Official Solicitor accepted that invitation.

There have been a number of twists and turns in the case, but the three parties now are Mrs H (the applicant), CW (P, the first respondent), West Berkshire District Council, the supervising authority (the second respondent), and today they are represented as follows: Miss Moore for Mrs H, Mr Patel for Mrs W via the Official Solicitor, and Miss Whittington for the supervisory authority.

By way of very brief background, Miss W seems to have suffered a number of afflictions since birth. She has had diagnoses of autism, epilepsy and diabetes. She suffers from cerebral palsy. She has a severe learning disability. She has resided in residential care since, it seems, about the age of 4. At all relevant times in the course of these proceedings, she has been living at Linwood House, which is a care home, a residential facility for up to 8 residents, in particular those who have learning disabilities and additional physical needs. There can be no doubt, looking at the nature of accommodation and the degree of control and supervision exerted over CW, that she is deprived of her liberty within the meaning of European case law and the well-known case of Cheshire West, which reminds us that a gilded cage, or a cage with the best of intentions, is still a cage.

The first question, of course, is why was this application brought in the first place? The answer is that Mrs H was not content with the arrangements that were in place for her sister, and she brought a DLA application because she considered that her sister’s best interests were not being met. As I shall return to later, best interests is, of course, one of the eligibility criteria for the making of a standard authorisation. The first relevant standard authorisation that we are concerned with was made by West Berkshire on 15 April 2015. In her statement of grounds, Mrs H said to the court in paragraph 4:

“Mrs H seeks to challenge the standard authorisation in her capacity as Miss W’s RPR primarily on the basis that she feels that Miss W’s needs are not being adequately met in her current placement due to her increasing healthcare needs. Miss H is concerned that Miss W’s physical healthcare needs are not being adequately met within the current care home, Linwood House.”

I will not read out the rest of the paragraphs, but there was a very significant issue in this case that Miss W had a significant medical problem with her hip which was not being addressed properly. That nearly became a serious medical treatment issue for resolution by the court, but that has since been resolved. In the meantime, there has been thorough investigation about whether or not Miss W’s best interests are being met by remaining at Linwood House. Almost inevitably, the grass may appear to be greener in other care homes, but unless another care home is available to Miss W such that she could choose to go there, she needs to remain at Linwood House, and that seems to be the end position so far as placement is concerned in this case, that all parties now accept, firstly, that there is nowhere better than Linwood House currently, but nonetheless that is not a once and for all decision made for CW to survive until the end of her life, but rather that there should be proactive steps made to try and find a better placement for CW, and indeed that is going to find its way into a recital to the final order which I am invited to make. Therefore, all concerned before me agree, and I accept, that it is in CW’s best interest to remain at Linwood House for the time being. All concerned agree, and I entirely accept, that she continues to be, and I think for the foreseeable future will continue to be, deprived of her liberty in Linwood House, and indeed I strongly suspect in any care home that she finds herself in.

An interesting legal issue has arisen in this case, which is as follows. If a supervisory authority grants a standard authorisation with conditions, who is responsible for monitoring compliance with the conditions, the legislation itself not being clear on the point? The parties’ positions on that point are that Miss H and the Official Solicitor are ad idem that, of course, the managing authority must comply with the conditions, and the RPR must represent P, but that does not absolve the supervisory authority from itself having to monitor compliance with the conditions it sets for ongoing deprivation of a person’s liberty. The supervisory authority says that no, it is under no such obligation, and that there are sufficient safeguards built in within the legislation so that there is no need for such an obligation, there is no express obligation. To help me resolve that issue I have heard submissions from all three parties, and they have provided me with three helpful skeleton arguments which I have read and taken into account.

A secondary issue is: if I conclude that the supervisory authority does have an obligation to monitor his own conditions, how frequently should it do so? I pause to observe that I made the observation – and I think all parties agree – that frequency must depend upon the circumstances of the individual case, and that it is simply unfeasible to fix a period applicable to all standard authorisation cases up and down England and Wales.

It seems to me that one needs to start with certain basics in a case such as this. The starting point has to be article 5 of the Convention Rights. Everyone is well aware of the first part of paragraph 1 of article 5 which is:

“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law.”

The procedure prescribed by law in a care home case (or a nursing home case, or a hospital case, but here we are concerned with a care home case) is within Schedule A1 to the Mental Capacity Act 2005. I am not going to read out all of the provisions of Schedule A1, but there are certain obvious points that need to be brought to attention. The body which actually makes the decision which authorises the deprivation of liberty is the supervisory body – the supervising authority being West Berkshire County Council in this case. That is the decision-maker, and that decision-maker is only overwritten by a decision of the Court of Protection by application made, and it should be made, under section 21(a) of the Mental Capacity Act 2005, but that would not prevent this particular judge visiting a decision of a supervisory body, even if the application came in through a different door. That matters not in this particular case.

What then leads up to a supervisory body saying “Yes”, or “No”, in other words making or not making a standard authorisation? The circumstances are that certain prescribed managing authorities, i.e. care home, nursing home or hospital, will have the care of a person, and they will, all being well, be vigilant to the point that the nature of the care and the circumstances may be such that that person is being deprived of their liberty. That managing authority makes the request to the supervisory body for a standard authorisation. Provision is made for how the request is made. The supervisory body is to ensure that all of the qualifying requirements are met. This requires a number of assessments which the supervisory body under paragraph 33 must ensure are carried out: the age assessment, mental health assessment, mental capacity assessment, best interests assessment, eligibility assessment, no refusals assessment. The supervisory body, of course, is going to be looking at the quality of those assessments, and will make the decision “Yes” or “No” to standard authorisation. Paragraphs 51 onwards set out terms of authorisation, and 51(1) says:

“If the supervisory body are required to give a standard authorisation, they must decide the period during which the authorisation is to be in force.”

That period must not exceed the maximum authorisation period stated in the best interests assessment, and there is a statutory limit of one year. That, of course, does not stop a fresh authorisation being given. Paragraph 53 says:

“(1)

A standard authorisation may be given subject to conditions.

(2)

Before deciding whether to give the authorisation subject to conditions, the supervisory body must have regard to any recommendations in the best interests assessment about such conditions.

(3)

The managing authority of the relevant hospital or care home must ensure that any conditions are complied with.”

There perhaps we have the first rub, in that paragraph 53(3) says the managing authority must comply, but it does not tell us who checks to ensure that the managing authority is complying.

This brings me back, and I know that we are not supposed to quote Latin any more, but it is an old Roman phrase, I think, of quis custodiet custodes – who guards the guards? Who ensures the managing authority does comply with the conditions? It is perhaps notable in the case at hand, as drawn to my attention by Mr Patel, that in fact West Berkshire County Council were unaware of the reviews being carried out by the managing authority, and that was one of the rubs in this case until those very reviews were disclosed. One cannot, of course, assume that the managing authority is to police itself in whether or not it complies with conditions. Given it has a duty to comply with conditions, it is hard to envisage a procedure whereby it asks itself, “Have we complied with conditions”, and, as I say, it is hardly a transparent process to expect the managing authority to police itself.

Then we have the role of the RPR (the relevant person’s representative), and I entirely accept the point which is made that this is an additional safeguard contained with the legislative procedure designed to ensure that P’s interests are protected and supported, and there is someone who is in a position to protest, with a legal status to protest, should these conditions need to be investigated. The supervisory body appoints a person to be the relevant person’s representative. Of course, the RPR is P’s representative, not the supervisory body’s representative. Paragraph 140 tells us that the supervisory body must not select the person unless it appears to the person making the selection that the prospective RPR would, if appointed, maintain contact with P, represent P in matters related to or connected with the Schedule, and support the relevant person in matters relating to or connected with the Schedule.

So I entirely accept that there is a safeguard there, but is it the function, I ask myself, of the RPR to monitor compliance with conditions? I am sure that there is an obligation upon the RPR so far as he/she is able to ensure that conditions are complied with, but I cannot see that the statute, or schedule within it, sets out in any way that it is the function of the RPR to monitor compliance and to report back to the supervisory body, because that, in effect, would be putting an agency-type duty on the RPR to act on behalf of the supervisory body, and that is not right; the RPR is to act on behalf of P.

One then turns to paragraph 102, and the more I have looked at paragraph 101(1) the more it seems to me that that gives the answer to the conundrum in this case. Before I turn to (1), I will turn to (2). 101(2) tells us when a supervisory body must carry out such a review. When is a review triggered of the standard authorisation? That is if they are requested to do so by an eligible person, who is P’s RPR, or the managing authority. So that is when the standard authorisation must be reviewed. 102(1) gives a discretion to the supervisory body to carry out a review. That requires, it seems to me, the supervisory body to make a decision: “Do I, or do I not, in the exercise of my discretion, carry out a review?” How, I ask myself, can it make that decision, “Do I, or do I not, carry out a review?” unless it carries out its own function of considering the standard authorisation and monitoring the conditions that it has imposed? Therefore, it seems to me there lies the answer.

If I was wrong about that, I would still nonetheless be anxious that the supervisory body is the person making the decision to deprive someone of their liberty. Article 5, in short, tells us that that decision cannot be justified just once for all time. There has to be continued justification in accordance with the procedure set by law. I cannot see that the supervisory body, in this case West Berkshire County Council, can sit back and say, “We’ve made the decision. We’ve set the conditions. It is now up to the managing authority to comply with the conditions. We are not going to look at that. It is up to the RPR to whistle-blow, or someone else, if those conditions are not met. Our obligation remains limited to someone asking us to act, or at the end of the standard authorisation.” A local authority maintaining such a position strikes me as being a local authority maintaining exactly the same sort of passive stance that received criticism of the court in the well-known case of Neary v Hillingdon Council.

Therefore, I agree with Mrs H and the Official Solicitor, via their advocates, that there is a duty on the supervisory body, or supervisory authority as I have called them, West Berkshire District Council to monitor compliance with conditions. But I turn to frequency. Frequency all depends. I have looked carefully at Miss W’s circumstances. The conditions which have already been set under the standard authorisation are found at page F57 in the bundle. Condition No 1 relates to the hip. Condition No 2 relates to care plans and updating them, to be reviewed on a fortnightly basis. Paragraph 3 is maintaining contact with Miss H to ensure she has sufficient information pertinent to Miss W’s care plan. Paragraph 4 is: “Should Miss W’s situation change and/or there is reason to believe that she no longer meets one of the requirements, the managing authority should request a review under Part 8.” Whilst not a specific condition, there is also the undertaking in the order that I am invited to make about looking for alternative placements, but that is an obligation upon the supervisory body rather than managing authority.

It seems to me that a fortnightly monitoring of compliance with conditions is overly frequent in a case such as this, given that the supervisory body is itself looking into alternative placements. Looking at these conditions, together with the additional conditions that are to be attached in accordance with paragraph 2 of the order, I would have thought that alternate monthly monitoring would suffice. One of the reasons why I say alternate monthly is because, and this is a point to be made to Miss HH’s credit, she is so very vigilant about the welfare needs of her sister, and I am delighted that CW has HH there for her. But I think that alternate monthly monitoring is sufficient.

Subject to any clarification or further explanation, that concludes my judgment.