Bury Metropolitan Borough Council v EM & Ors

This case concerns a young woman of 18, who I shall call Emma, or EM.

The other parties are the named Local Authority (LA) and Emma’s mother and father who I will refer to by those roles and as MM and FM.

This judgment deals with two principal issues. First, the issues of capacity and care planning on the basis of what is in Emma’s best interests. The second is to deal with the Official Solicitor’s application for costs following the hearing before this one.

While EM’s case is, of course, unique, it follows a depressingly familiar course. I will outline only very briefly the necessary facts.

EM is 18 and normally lives with her parents and younger sister. There is nothing about her parents or sister that should be considered concerning. They are an “ordinary” family. Although there have been arguments, her parents appear to love their daughter.

She has a history of dysregulated behaviour. Even at the age of 6, Emma when emotional, “ran off” to a local bridge, a euphemism for threatening suicide.

Emma was diagnosed with ADHD in 2020. Initially, she was medicated for this, but had to stop due to a medical condition.

Later, in 2020, she took a drug overdose. She was dysregulated and felt “invalidated” at home. She was allocated a CAMHS worker. However, she engaged in self-harm by cutting herself with razor blades.

In June 2023, Emma was diagnosed with autism spectrum disorder (ASD). She was referred to the Bury community mental health team (CMHT) in September 2022. Her presentation at that time was complex and it was thought it was likely to persist beyond her 18^th birthday, so, with the support of her parents, Emma was moved towards a supported placement which could meet her Autism and Mental Health needs. She was placed at “the placement” as a result.

In March 2023, Emma was detained under s. 2 of the Mental Health Act 1983 (MHA). Her mother had reported her as missing from home, and she was located on a busy road, headbanging and stating she wished to end her life. The police used their powers under s.136 MHA and took Emma to a place of safety at Fairfield Hospital, Bury.

This was the culmination of escalating self-harm whilst living with her parents.

The papers contain details of a large number of incidents that have occurred since in which Emma has tried to harm herself or has harmed herself by a number of different means. She has tied ligatures around her neck and has had to be rescued by staff using ligature scissors. She has cut herself and then become very distressed and has then started headbanging (i.e. the violent striking of her head against a hard surface).

These incidents, which have been numerous, have led to staff using verbal de-escalation techniques. Where those fail, actual physical restraint has been used, and MVA holds are deployed.

On some occasions, Emma has cut herself badly using a broken plate.

Although it is not the Court’s wish to go into too much detail, it does seem appropriate in this case for me to quote the last few incidents earlier this year as listed in the evidence.

Proceedings were issued in the High Court in August 2023 inviting the Court to invoke its inherent jurisdiction to keep Emma safe by authorising restrictions upon her that amounted to a deprivation of her liberty.

A number of hearings came before Judges sitting in the Family Division’s National DoLs List. This list has been established to hear the increasingly large number of similar cases in which the High Court is being invited to authorise care plans that amount to a deprivation of the liberty of young people.

There was a hearing on 6 October 2023 at which an interim order was made which lasted until 16 November 2023. A further hearing then took place on that later date. However, by then Emma was detained under the MHA and the Court made no order, indeed the Judge concluded the Court had no jurisdiction to make an order, and the proceedings were adjourned.

The next High Court hearing was on 15 December 2023 when Emma remained detained under s. 3 MHA. At that point the Court was understandably concerned about Emma’s declining mental health and suicidal ideation.

A capacity assessment was carried out on Emma on 1 December 2023 and the assessor concluded that she lacked capacity to make decisions in relation to her residence and care. A further update on that assessment was carried out on 28 January 2024 and the conclusion was the same.

At that stage, proceedings were issued in the Court of Protection. A suitable placement outside a hospital and the MHA had been found. Emma moved to the placement in March 2024 and it is recorded that the incidents of self-harm had declined following that move.

The first attended hearing in this Court was on 15 July 2024. There had been a couple of orders made without attendance before that. By that stage, Emma had the services of solicitors instructed by her litigation friend, the Official Solicitor.

The hearing was listed urgently because of a failure by the LA to communicate adequately with those acting for Emma and also failing to disclose the sort of information needed for the Official Solicitor to do her job.

Within that context, an order was made specifying the documents and other information required for the proceedings to progress.

A list of documents to be disclosed by the LA was specified in the Order, that was to be provided to the Official Solicitor by 29 July 2024.

By the same date, the LA was to provide a copy of all social care records in their possession relating to Emma from July 2020 to the present at that point.

Furthermore, by 8 August 2024, the LA was to provide a witness statement outlining a number of important assessments and care plans in Emma’s case.

By 15 August 2024, Emma’s parents were to serve any evidence they wished to file in response to the above.

By 22 August 2024, those representing Emma had permission to file and serve any updating evidence as to her wishes and feelings.

Permission was given for a round table meeting to take place in the week commencing 26 August 2024 in order to consider the evidence and to discuss whether agreement could be reached or at least for the issues to be narrowed before the next hearing, if possible.

That hearing took place on 9 September 2024. By that stage, there had been little progress and serial breaches of the July order.

I quote a significant chunk of the Official Solicitor’s position statement for that hearing for a flavour:

For that reason, the Official Solicitor complained that she had not been able to conduct proceedings on Emma’s behalf, not being in a position to evaluate Emma’s case on capacity and best interests. She also made an application for the costs of that hearing. I will deal with that application later. Firstly, I think it is important to outline what I consider to be a significant confusion in the approach taken by the LA towards care planning.

Capacity and care planning are central to this case. Does Emma have capacity to consent to arrangements that may be put in place in order to provide her with support that meets her needs?

The issue of capacity in this case is complicated and difficult. It was clear from the written evidence of Dr Khan, Consultant Psychiatrist responsible for Emma’ care, it is probable her capacity to make relevant decisions about her residence and care fluctuates. Dr Khan was clearly of that view having read the minute of the Round Table Meeting (RTM) on 3 October 2024.

The Official Solicitor and the Court were therefore confronted with a young woman whose capacity to make relevant decisions had been absent during a prolonged crisis, and which may be absent at certain times of crisis in the future. It was not clear to the Court whether in fact EM was still in a crisis during which her capacity to make relevant decisions was absent, at least some of the time. In such circumstances the Court needs to understand the nature of the fluctuating capacity, what triggers it and what is the scope of the incapacity when triggered. Although judgment had not yet been given at the time of the October hearing, the difficulties of such a case are perfectly illustrated in Leicestershire County Council v P & NHS Leicester, Leicestershire & Rutland ICB [2024] EWCOP 53 (T3), a judgment of the Vice Present, Mrs Justice Theis.

Interestingly, Dr Khan said in the RTM that she had been looking at Emma’s capacity “to give advance directives within the MCA”. It was clear Emma “wants to be somewhere that is less restrictive”, and Dr Khan and Emma “had a very clear dialogue as to how she will work towards that”. Dr Khan stated that she “was not looking at the care plan because that would have been outside the remit [of her assessment?] but clearly from the capacity assessment, knowing the progress that Emma has made, [Dr Khan] considered the longitudinal nature of the capacity assessment and someone with autism”.

What was clear at the hearing in October was that Emma and her psychiatrist were working together therapeutically, and the doctor and other care professionals were attempting to formulate an effective care plan for her. However, capacity was an unclear subject at that time. Since there was diagnostic evidence in support of the mental disorder the Court thought it appropriate for there to be further evidence to focus on the functional side of capacity. Hence an Independent Social Worker (ISW) was appointed to prepare a report for the next hearing in December.

Pending that, the Court was going to make a declaration that Emma lacked capacity to make decisions as to her residence and care. The Court was concerned to understand what the LA’s position was in relation to care planning. A particularly troubling aspect of what Dr Khan said in the RTM was the following passage when she was asked about what restrictions would be put in place (my emphasis added):

This passage troubled the Court. For reasons I will come to below, it was not clear during the hearing what plans the LA had in mind for Emma. The LA was applying to withdraw the application in this Court, and (to quote) “lift the DOLs”.

During the hearing, the Court probed this application and the reasons for it. I asked counsel for the LA and the social worker to leave the issue of capacity to one side, because the Court needed to consider the issue at a later date and to concentrate on what care plan would best meet Emma’s needs in the meantime. The Court’s view was that, on the face of it, Emma was still likely at times to act in a dangerously dysregulated way and posed a significant risk to her own safety. Whilst keeping someone safe is not the only issue before this Court, it is a pretty significant one. The Court wanted to understand how the LA had reached its surprising decision to apply to withdraw proceedings, and for the interim orders authorising Emma’s residence and care arrangements to be discharged.

Having heard from Counsel for the LA and the social worker, my understanding of their case is as follows. At that time, the restrictions at the placement were 24 hour supervision within a locked environment. There were significant restrictions over Emma’s movements within that placement. There were also restrictions on her contact with other people, notably her family. At that time, other placements had been identified, and the intention was for less restrictive care plans to be put in place as and when Emma moved there. Pending that, nothing was going to change in the short term.

I was then told that there was concern on the part of the LA and prospective providers that while Emma was subject to a “DoLs order” from this court there may be a difficulty in obtaining a new placement for her.

That issue continued in the hearing on 10 October 2024. In dealing with the issue of the withdrawal of Court of Protection proceedings the LA’s position statement said (my emphasis):

“The court will however note that [EM’s] current placement will not be derailed if the Dols is withdrawn, their services can continue to remain in place without a Dols for EM until she attains the age of 25”.

In the social worker’s statement, emphasised in the LA’s position statement, is the following passage. Having stated that Emma was settled where she is, she wanted to move somewhere less restricted, the Social Worker then says:

“Due to the [capacity?] assessment’s findings, I have had conversations with the placement regarding EM’s suitability to the service, if not subject to a Dols and the Local Authority has commenced a search for a less restrictive placement. I am mindful that sourcing the current placement was very difficult for children’s services due to EM’s complex presentation and risk history. At present one provider has come forward, who feel they may be able to meet EM’s needs however this is an out of area provider.”

In the position statement was also the following quotation from the social worker:

The position statement then goes on that, in the light of Dr Khan’s assessment and the nature of Emma’s fluctuating capacity, “there is no longer a requirement for the continuation of the Dols”.

Having read the documents in this case, including those concerned with Emma’s own wishes and feelings, it seems to me the Court needs to be very clear in the language it uses.

The acronym DOL (or DoL) or its plural “DoLs” comes from the wording of Article 5 of the European Convention and refers simply to “deprivation of liberty”. The term “DOLS” refers to Schedule A1 of the MCA, otherwise known as the Deprivation of Liberty Safeguards. Emma is therefore subject to an order that authorises her deprivation of liberty, which could be called a DoL or DoLs order. She is not on a DOLS.

I hope not to confuse things further by explaining my understanding of the law. The MCA requires decision makers to make decisions for people who cannot make those decisions for themselves, where necessary (see ss 1-4 MCA). That includes issues over residence and care. It enables decision makers to decide on care plans that meet the best interests of the person concerned. That is the starting point. A care plan in P’s best interests, and the one which adopts the least restrictive option is what the decision maker must choose. If that plan involves or may involve a deprivation of P’s liberty, then it needs to be authorised and will be if it is necessary and proportionate in furthering P’s best interests.

It can be authorised under Schedule A1 of the MCA if the person is 18 or older and is detained in a care home or hospital. These are the DOLS. If the person is not yet 18 or is somewhere other than a hospital or care home, the Court must decide whether to authorise the care plan under ss 15 and 16 MCA.

The inherent jurisdiction has been used in Emma’s case to authorise her deprivation of liberty outside a statutory regime. These are also known as DoL or DoLs orders, with good reason.

Such authorisation, by any of these avenues, is permissive rather than mandatory. Or put another way, it enables the carer to use restrictions that amount to a deprivation of liberty, it does not require them to do so.

Therefore, the expression “on a dol” or “under a dol”, whilst perfectly legitimate abbreviations, must be understood properly and within that context. To be “on” or “under a dol” means to be subject to an order (or authorisation) approving and authorising a care plan which allows the carer to use restrictions that amount to a deprivation of liberty in the best interests of P. Clearly, the emphasis here is on the care plan itself and not the legal status of the restrictions that can be used. The care plan to be used is still a decision to be made by the carer/clinician/MDT in charge on the basis of what they consider to be needed in the circumstances that arise, and what is in P’s best interests.

Unfortunately, when the Court authorises such a care plan that amounts to a “dol” it is seen as being mandatory, like the Court has imposed a prison sentence. That gives rise to an unfortunate misconception on the part of the people who are the subject of these orders that the order, while it remains in place, requires those providing care to keep them actually locked in and locked up.

In some extreme cases coming before the National DOLs List and the Court of Protection it is easy to see why the misconception arises, particularly when the options for care are all inadequate, P’s behaviour is extreme, and LAs are fighting a very difficult and seemingly endless battle to keep P safe.

However, the principle is always the same. The Court will ask questions like: what is the care plan and how has it been arrived at? What are the risk assessments of alternative plans compared with this one? What does P think? What do other relevant people under s. 4 MCA think? Does the LA/NHS provider (as the case may be) consider the care plan to be the least restrictive option that will address P’s needs? What steps are being taken to reduce the need for such an intense care plan? The Court is obliged to scrutinise the answers given.

It is important to emphasise though that the care plan is King here. That is how Emma’s case should be seen. Considering Dr Khan’s engagement with Emma, an attempt is being made to give effect to what Emma wants in her care plan. She wants less restriction. If the clinicians, social workers, and other relevant professionals can work with Emma (and perhaps her family) to devise a care plan that does not amount to a deprivation of her liberty, and that care plan is in her best interests, then the Court will authorise it.

The LA in this case is (I think) planning to move Emma to a place where there will be no need for “a dols”. However, through their counsel it was made clear to me that could only happen if I “lifted the dols”. This is incorrect. If the LA devises a care plan whereby Emma can move to another place where she will not be deprived of her liberty, there will be no need for the Court to authorise her deprivation of liberty. If a plan is devised at her present placement that does not amount to a deprivation of Emma’s liberty, the Court will not need to authorise one.

So profound has the language and the law been confused in this area, that these two statements of what should be the blindingly obvious, appear necessary.

It is important to remember that the Court is in place to ensure that disputes about capacity, best interests and the proportionality of restrictions are resolved as well as ensuring that there is a consistent scrutiny of a care plan that imposes significant restrictions on P.

Once again, however, care planning and the assessments and consultations around that are what is most important. That means Emma is central to the process. By focusing on the Court and the making and un-making of a “dol”, Emma and other people in her position are made to feel peripheral to the whole process. Many of them conclude that “getting off the dol” is essential before they can be part of the process. Many feel that when on a “dol” they are filed away and forgotten only to be taken out for scrutiny when someone else makes a fuss.

In fact, the whole MCA/Court of Protection process, particularly when concerned with Article 5 rights, is about ensuring that these care planning decisions are constantly reevaluated to ensure that P’s best interests are served through the least restrictive option, and P is central to the whole process.

At the October hearing, I therefore approved the care plan I was invited to approve at the placement. That care plan amounts to a deprivation of Emma’s liberty not because the Court says it does, but because the restrictions imposed under the care plan are said to be necessary, proportionate and in her best interests according to those involved in her care, and they place Emma under continuous supervision and control and she is not free to leave the placement.

The Court approves the restrictions, it does not create them.

As I have stated above, there were serial breaches of the order made in advance of the September 2024 hearing. As a result, it was a wasted hearing. A number of repeat directions were required in the order of that date. More importantly, the Official Solicitor was unable to represent her client by scrutinising the LA’s case and putting forward any positive alternative case.

The hearing in October, in fact, was the hearing that should have taken place in September. The orders made in that hearing would have been made then had the directions for the September hearing been complied with.

I have read written submissions on this subject from Ms Waring and Ms Gardner, and I am grateful to them for those documents.

The relevant law is most recently and best summarised by Mr Justice Poole in Sandwell & Birmingham Hospitals NHS Trust v GH (by the Official Solicitor) [2023] EWCOP 50. The statutory and jurisdictional basis for a costs order is outlined in paragraphs [46] to [53] in that judgment, and these are provisions I have in mind when determining this application. In particular, I am conscious of the need for me to be satisfied of the matters outlined in COPR r.19.5, which I will quote.

The basic rule in COP welfare cases is that there is no order for costs (r. 19.3). That rule provides that the court may depart from that general rule if the circumstances so justify and in deciding whether departure is justified the court shall have regard to all the circumstances including:

Mr Justice Poole makes reference to a number of cases in which these issues have been considered and determined. These cases are of limited use, however, and each application must be considered on its own merits: VA & Ors v Hertfordshire Partnership NHS Foundation Trust & Ors [2011] EWHC 3524 (COP). The Court of Appeal endorsed a "broad brush" approach to making costs orders in these cases in Manchester City Council v G & Ors [2011] EWCA Civ 939. He also referred to examples of costs orders which departed from the general rule including Re JB (Costs) [2020] EWCOP 49 per Keehan J, and A Local Authority v ST (by her litigation friend, the Official Solicitor) [2022] EWCOP 11, per HHJ Burrows.

As I said in September, Ms Waring has a difficult task arguing with a costs order being made against her client on this occasion. Nonetheless she has tried. She criticised the Official Solicitor for her tardiness in becoming involved in these proceedings. However, even were I persuaded that the OS was tardy (and I am not), it seems to me that when the Order was made in July creating a timetable for the September hearing, it was agreed between the parties that compliance with that order was needed to make the September hearing worthwhile.

Ms Waring argues that there were no significant or repeated breaches in this case. In fact, the July hearing referred to failures on the part of the LA in providing information up to that point. But even ignoring that, and I do not, there was almost complete non-compliance with the July order, rendering the September hearing a waste. Furthermore, at no stage was any application made in advance of the hearing for an extension of time for compliance and to vacate the September hearing, which might have avoided a waste.

I have been invited by the LA to express my disapproval in my judgment as an alternative to making a costs order, supposedly following West Hertfordshire Hospitals v AX (by the OS) [2023] EWCOP 11. In that case, a medical treatment case, Mr. Vikram Sachdeva, K.C, sitting as a Deputy High Court Judge and at Tier 3 in this Court, said this (my emphasis):

I have come to the conclusion that the threshold in this case has been reached because of the wholesale breaches of the order made to ensure the hearing in September was not wasted. As a result, it was wasted. That non-compliance took place within the context of the earlier complaints made by the OS in July. The October hearing went someway towards ensuring the case was back on track, but that simply emphasises the waste the September hearing was. For those reasons I am satisfied that I should depart from the general rule and make an order for costs against the LA.

I have decided that the LA should pay the OS’s costs of an incidental to the September hearing, and the very limited additional costs, if any, caused by the need to make this application for costs. I would add that the sum involved here will be very modest, and I hope the parties can agree a figure without the need for adjudication my me, or an assessment.

That is the judgment.