Hickmott , R (on the application of) v Brighton and Hove Council & Anor

The applications before me stem from an order made by consent and dated 20 September 2002 (the September 2002 Consent Order) in proceedings that were issued in December 2000.

The Claimant in those proceedings and the maker of one of the applications before me is Anthony Hickmott (a patient acting by his litigation friend, the Official Solicitor). The Defendant to those proceedings was Brighton and Hove Council (the Council).

The September 2002 Consent Order provided that the costs of the proceedings be determined by a judge on the papers. Mr Justice Gage made an order that the Council do pay the Claimant’s costs to be assessed on the standard basis if not agreed. In his reasons for reaching that conclusion he sets out a helpful and concise summary of the background in the following terms:

“Briefly the Claimant is a man suffering from learning disability, autism and epilepsy. In the autumn of 2000 the Defendant was proposing to move the Claimant to a placement in Coventry some distance from his family, home and contacts in the South of England. Following a pre-action letter of 5 December 2000 these proceedings were issued in order to obtain a lawful assessment by the Defendant of the Claimant’s community care needs; and with a view to prevent his transfer to Coventry. The proceedings were defended by the Defendant. However, following the issue of proceedings negotiations between the parties have given rise to various revised care packages being offered by the Defendant. The oral hearing for permission was adjourned on several occasions but on 9 July 2001 permission was granted to the Claimant to apply for judicial review on an amended claim. Further negotiations took place and in August 2002 an agreement was reached on a final order. By that order the Defendant agreed to a timetable for implementing a service in accordance with a care plan for the Claimant. This order also provided for the determination of costs to which I have referred.

The order also provided for each party to file and serve written representations on costs by defined dates. The Claimant has filed his representations but the Defendant has failed to file any written representation by the due date or at all.

I have read the papers before me and considered the Claimant’s submission on costs. I have, no doubt, that the final order represents the achievement of a substantial degree of success by the Claimant. The chronology and such correspondence as I have seen show that the proceedings were resisted by the Defendant up to and including the oral hearing for permission. Thereafter the negotiations were intense and hard fought. In the end, a sensible compromise was reached but, as I have said, it represents a substantial degree of success for the Claimant.”

I respectfully agree with that summary. In particular I agree that the Claimant achieved a substantial degree of success in those proceedings.

At the time that the proceedings were initially issued in December 2000 the Claimant was in the community. Thereafter (from June 2001) and at the time of the September 2002 Consent Order he was in, and detained in, a hospital called Cedar House in pursuance of an application for admission for treatment made pursuant to Section 3 of the Mental Health Act 1983 (the 1983 Act). He remains there.

The hospital is a private hospital. It is not managed or controlled by the Brighton and Hove NHS Primary Care Trust (the B & H Care Trust) and, for example, the doctor responsible for the Claimant at that hospital is not an employee of the B & H Care Trust.

The project referred to in the September 2002 Consent Order is at, and is to be called, Beaconsfield Villas.

At the date of the September 2002 Consent Order the Council was the only Defendant. Following the restoration of these proceedings before the court as a result of the application issued by the Claimant on 17 October 2003 the B & H Care Trust has been served as an interested party.

The Claimant’s application was based on an assertion of a failure to comply with the September 2002 Consent Order but the relief sought in the draft order attached to it is primarily directed to the production of identified information relating to the progress of the project at Beaconsfield Villas and then seeks “any other information which would assist the Court and the Claimant to know the reasons for the Defendant’s breach of” the September 2002 Order. The background to that application is a little confused but it was issued in the light of indications made by the Council that the proposed unit at Beaconsfield Villas was no longer suitable for the Claimant. In essence therefore the Claimant was seeking enforcement of the September 2002 Consent Order (rather than simply the production of information) and the application has been so described during the course of the hearing.

The second application before me was issued by the Council in the circumstances set out below on 14 July 2004 and thus after the first hearing of the Claimant’s application for enforcement of the September 2002 Consent Order. That application is for the discharge of that order.

The result has been that in large measure the second application issued by the Council has overtaken the first one issued by the Claimant. This is because in the context of them both (but in particular after the issue of and in support of its own application):

By the end of the hearing the Council put forward an alternative which involved further clarification (in particular as I understood it from the Claimant’s RMO) before a decision was taken that the unit referred to in the September 2002 Consent Order should no longer be held available for the Claimant when it is completed, or following its completion.

It was correctly common ground that the Claimant’s RMO has an important part to play and as I mention later it seems that at the time directions were being given there was some confusion as to what that RMO (or the Claimant’s RMO if he was to move to the area of the B & H Care Trust) was indicating.

The subject matter of the original judicial review was a decision by the Council to move the Claimant to a care home in Coventry and the alleged ongoing failure of the Council to make any adequate provision for persons with learning difficulties / autism and challenging behaviour, and thus the Claimant.

In respect of the summary given by Gage J I comment further that the failure of the Council to put in submissions on costs in accordance with the provisions of the September 2002 Consent Order is far from being the only occasion during the history of these proceedings when the Council has plainly failed to comply with its obligations under orders made by the court with its consent to provide information to the court and the other parties. On some occasions I accept that the position relating to the representation of the Claimant (and changes in it) and the stances of others concerned with, or interested in, the care of the Claimant has contributed to these failures. Also no doubt a number of circumstances have contributed to the delays in the implementation of the September 2002 Consent Order.

However as a general observation (as I remarked during the hearing) it seems to me that until recently the Council (and to some extent the B & H Care Trust) have failed to pay proper regard to the facts that (a) the September 2002 Consent Order has been made and thus that the Council has obligations under an order of the court as well as under the relevant statutory regime, and (b) until that order is varied or discharged by the court (or by agreement) those obligations under court order remain in place. Perhaps as a consequence of this the Council have it seems to me failed to recognise the need for it to fully explain its position and to provide supporting information pursuant to the terms of court orders and otherwise.

In making that general comment I am not suggesting that there has been any improper conduct or lack of good faith and I accept that both the Council and the B & H Care Trust are faced with a difficult situation in respect of the Claimant having regard to the medical opinions that have been expressed and the stance and actions of the Claimant’s parents. It also seems to me that some (but far from all) of the information sought from the Council by the Official Solicitor by the Claimant’s application is information that the Official Solicitor could have sought directly from its source (for example the views of the RMO). Further as appears later part of the confusion in this case has arisen from the difficulties in interpreting and understanding the position of the expert instructed by the Official Solicitor in particular as to the comparison of his position now and in September 2002 when he (as I understand it) recommended the making of the September 2002 Consent Order.

Standing back from the detail:

Against that background, and in the absence of any clear evidence that the Claimant’s condition and needs have changed for the worse since September 2002, it is easy to understand why his parents are frustrated and angry and opposed to the present expressed view of the Council and the B & H Care Trust that for the medium term the Claimant should be detained in a hospital pursuant to s. 3 of the 1983 Act.

However (again by way of a general comment) the papers indicate that the Claimant’s parents have demonstrated mistrust and antagonism towards professionals concerned with the care of their son and it seems to me that some of the actions and behaviour of the Claimant’s parents have been counter productive and have founded, for example, a reasonable concern that persons employed at the proposed unit would be at risk of allegations of assault if the Claimant was discharged under the 1983 Act and they were to treat and restrain the Claimant without consent. Also it is likely that such actions have contributed to the emotionally charged atmosphere against which these proceedings have been prepared and argued.

I acknowledge (a) the considerable benefits of hindsight and the clarification that has flowed from these proceedings, and (b) the difficulties and complications that have existed not least from the differences in medical opinion, the lack of clarity of some of that opinion, the unavailability of some of the relevant doctors and the hostility of the Claimant’s parents. However looking back now it seems to me unfortunate that the representatives of the Council and the Claimant (and thus the Official Solicitor) as two public bodies concerned with the care, and thus the welfare of, the Claimant did not make more concerted attempts to clarify their respective positions in a conciliatory and investigative approach. For the future I express the hope that they will do so and thereby put at the forefront of their thinking the point that what is being sought is the best practically available placement for the Claimant. This expression of hope also applies to the B & H Care Trust.

I shall deal with matters under headings which I hope are self explanatory.

I am conscious that this judgment is lengthy and that necessarily my citations are selective. I have taken the course I have in the hope that a longer description of the history than is strictly necessary for present purposes will assist in the future and thus in the further consideration of this matter which in my view is necessary.

This history is relevant to, and forms the structure for, the consideration of the views concerning the Claimant, his needs, his placement, the provision of services for him and the plans and steps that should be taken to put them in place. There is also a dispute as to costs and it is relevant to that.

The first consent order is dated 17 December 2001. In its amended form, it provided (inter alia) as follows:

1

The Respondent (i.e. the Council) shall complete a lawful draft needs assessment for the Applicant (i.e. the Claimant) by 15 December 2001.

2

The Respondent shall come to a lawful provision decision and prepare a lawful draft care plan for the Applicant by 8 January 2002.

3

The Respondent shall investigate and endeavour to identify formal expressions of interest from potential providers of a service for the applicant in accordance with the said draft care plan by 31 January 2002.

4

The Respondent shall create a closed tendering process with a view to identifying a preferred service provider to meet the requirements of the said draft care plan by 31 March 2002.

5

The Respondent shall have a formal agreement in place by 31 March 2002 for the provision of a service in accordance with the Applicant’s care plan which will be available for him from no later than 29 June 2002.

6

If a suitable service provider cannot be identified by 28 February 2002 then the respondent shall take the necessary steps to provide an appropriate service in accordance with the said draft care plan themselves, that service to be available to the applicant from no later than 29 June 2002.

7

The Respondent shall commence preliminary market testing immediately, with a view to identifying any initial list of potential service providers, this exercise to be completed by 24 December 2001.

By a further consent order dated 12 April 2002 the timescale in the earlier order was amended as follows:

(i)

the date in paragraph 4 thereof was amended to 17 May 2002,

(ii)

the date in paragraph 5 thereof was amended to 31 May 2002, and

(iii)

the date in paragraph 6 thereof was amended to 17 May 2002.

There was a further consent order dated 25 June 2002 which provided that:

The Respondent do provide the Applicant with a Project Plan setting out its proposed timescale for implementation of a service for the Applicant by 31 July 2002.

By both the last two consent orders the hearing dates were vacated.

The September 2002 Consent Order provided as follows:

“By consent it is ordered that

1

The Defendant shall have available to the Claimant a service in accordance with the Claimant’s care plan from no later than 29 June 2003.

2

The Defendant carry out and complete the steps provided for in the attached Project Plan on or before the dates provided in the Plan.

3

The Defendant’s solicitor report to the Claimant’s solicitor by letter on the last working day of each quarter (being three calendar months) between the date of this Order and the conclusion of the Plan setting out what extent steps provided for in the Plan for that quarterly period have been achieved in addition, the Defendant’s Solicitor shall also report to the Claimant’s Solicitor by letter if at any other time between the date of this Order and the conclusion of the plan, it becomes evident that any of the steps provided for in the plan may not be achieved within the timescales set.

4

There be liberty to apply for each party on five working days notice to the other party.

the remainder of the order related to the issue of costs.

The order in respect of costs which I have already referred to is dated 4 April 2003.

As I have already mentioned the application that triggered the hearings before me is dated 17 October 2003.

A further consent order followed (which I was told was signed on 7 November and sealed on 17 December 2003). This order (which I refer to later as being made in December 2003) provided that the matter be restored for further hearing and that the B & H Care Trust be joined as an interested party in the proceedings. It was signed by solicitors for the Claimant, the Council and the B & H Care Trust. It contained the following recitals and provisions (with my emphases)

“Upon the Defendant having provided the Claimant with copies of all relevant care reviews and accompanying reports within their control prepared by professionals or carers since the date of the last order of 27 September 2002, together with up to date information from the Claimant’s Responsible Medical Officer and the proposed Responsible Medical Officer were the Claimant to move to Brighton and Hove which indicates that in their current view the project plan at Beaconsfield Villas as agreed to be provided by the Defendant in the order dated 20 September 2002 is not appropriate to meet the Claimant’s needs.

And upon the Claimant through the Official Solicitor wishing to ascertain whether or not the project plan at Beaconsfield Villas as agreed to be provided by the Defendant in the order dated 20 September 2002 remains appropriate for the Claimant’s needs either currently or in the short and long term future, and if not to ensure that an appropriate or alternative service is provided within a reasonable timescale.

And upon the Defendant agreeing to use their best endeavours to facilitate access to any other reports or records that the Claimant through the Official Solicitor and/or any independent social worker or psychiatrist to be instructed requests to facilitate their assessment of Mr Hickmott’s needs.

By consent of the parties it is hereby ordered

1.

That this matter be restored for further hearing.

2.

That the B & H Care Trust should be joined as an interested party.

3.

That the Defendant will provide any other relevant report within it’s control prepared by any professional or carer in respect of the Claimants since 20 September 2002 to date which have not already been disclosed to the Claimant through the Official Solicitor within 14 days of the date of this Order.

4.

That the Defendant shall provide a chronological account of steps that it has taken to comply with the order of 20 September 2002 setting out the reasons for the delay in complying with the project plan and details of the care package planned for the Claimant at Beaconsfield Villas together with the reasons for failing to bring the matter back to court once it determined it was no longer feasible to comply with such order, within 14 days of the date of this order.

5.

That the Defendant shall prepare either alone or in conjunction with the B & H Care Trust a proposal for the long term care of the Claimant, to include an indication of the timescale for implementation, such statement and timetable to be served on the Claimant’s solicitors by 10 December 2003.

6.

That the Claimant shall have leave to instruct a consultant psychiatrist to report on the following matters:

a.

…………

e.

To consider whether the proposed project at Beaconsfield Villas as referred to in the project plan attached to the order of 20 September 2002 could meet the Claimant’s current or future needs and to consider the extent to which those plans are capable of being adapted to meet those needs and to comment (insofar as it is within his expertise) on a realistic timescale for implementation.

f.

If realistically the project a Beaconsfield Villas set out above will not be suitable for the Claimant’s needs, even if adapted, to consider a suitable care package for the Claimant either now or in the future and to set out (insofar as it is within his expertise) a realistic timescale for implementation.

g.

………..

h.

To consider the extent to which the Claimant’s care needs apparently differ from those indicated and predicted by Professor O’Brien in his reports previously filed in these proceedings.

7.

That the Claimant shall have leave to instruct an independent social worker to prepare a social work report which will address issues (b) – (h) above.”

I pause to comment by reference to the parts of the recitals I have emphasised that:

In any event the Council did not comply with paragraphs 3 to 5 of that order and a further order by consent sealed on 9 February 2004, provided that the Council was to provide the documentation referred to in that order forthwith. That order also made further directions as to the provision of information by the Defendant and the interested party to the Claimant as to:

I pause to comment that:

Having regard to the arguments advanced to my mind, very surprisingly, the order also provided that the matter should be listed for a final hearing with a time estimate of half a day. This is another pointer that perhaps what was then envisaged was that the RMO had, or would clearly be indicating, that the project at Beaconsfield Villas was not appropriate to meet the Claimant’s needs.

In that context it can easily be understood why information as to dual registration of the proposed unit was being sought and that the issue raised in the second recital to the order made in December 2003 emphasised by me may have been of prime importance.

I also pause to comment that the terms of these orders indicate a proper recognition of the following points:

It seems to me that this proper recognition of the effect of a consent order and the need of a party bound thereby (and perhaps particularly a public body) to come back to court with clear evidence if that party is to obtain a release from, or a change in, that order was forgotten by the Council by the time of the first hearing in May 2004 when it had failed to put in detailed evidence and was relying in large measure on the views of doctors who did not include the RMO, and had only met a few days earlier.

Pursuant to the December order on the instructions of the Official Solicitor draft reports were prepared by the psychiatrist and social worker who had also written reports prior to the making of the September 2002 Consent Order. These were draft reports which were prepared before details of the progress in the completion of the unit pursuant to the September 2002 Consent Order had been received from the Council and before an alternative care plan had been received from either the Council or the B & H Care Trust.

The matter came on for hearing before me on 4 May 2004 and that hearing continued on 5 May 2004. It was not until the second day of that hearing that a witness statement was produced on behalf of the Council. This was a statement of a solicitor employed by the Council, Sandra O’Brien, and as she says in the first paragraph thereof that statement was to provide the court with a brief background to the basis on which the terms of the September 2002 Consent Order were agreed and an explanation as to why, subsequently, the Council has been unable to comply with the terms of that order.

After the lunchtime adjournment on 5 May 2004, counsel for the Council applied for an adjournment to put in further evidence.

In my judgment the Council was correct to seek that adjournment because the information it had provided to the court was deficient. I granted the adjournment and made an order for costs against the Council.

Although I had granted the adjournment at the request of the Council I nonetheless heard submissions made by counsel for the B & H Care Trust.

An order was made on 18 June 2004 requiring the Council to serve further evidence by 21 June 2004. In particular that order required the Council to serve a witness statement by the project planning co-ordinator (John Symonds) dealing with specified matters. I pause to comment that these matters relate to the detail of the implementation of the plans annexed to the September 2002 Consent Order. As was remarked by counsel for the B & H Care Trust during the course of the hearing it was only when this statement was received that any clear picture was given as to precisely what had been done in pursuance of those plans and thus what would be in place when the project was completed.

This order also provided for the service of a witness statement by the solicitor for the Council explaining delays in providing quarterly updates.

Notwithstanding that the order provided for this evidence to be served by 21 June 2004 it was not in fact served until 16 July 2004.

The order of 18 June 2004 also provided that the Council should by 23 June 2004 file and serve an application to discharge or vary the September 2002 Consent Order, if so advised. As I have already mentioned this application was not filed until 14 July 2004.

A further directions order was made on 29 July 2004. On that occasion I directed that the Claimant’s parents should be added to the proceedings as interested parties and that they could make written submissions and raise questions of the experts. In that order I also gave directions as follows:

“2.

Professor O’Brien, Dr Sanders and Dr Campbell shall consider the schedule of areas of agreement and disagreement prepared by solicitors acting for the Defendant and confirm whether or not it accurately reflects their views as expressed at their meeting and if not indicate the respects in which it is not accurate. The respective parties shall file and serve their respective experts / witnesses response by 20 August 2004.

3.

Professor O'Brien, Stewart Sinclair, Dr Sanders, Dr Campbell and the Claimant’s RMO should by 4pm on 6 August 2004 indicate their views in writing on the following:

(a)

Whether or not it would be appropriate, and if not, why not, for the Claimant to be given Section 17 leave to Beaconsfield Villas.

(b)

If not, whether any Section 17 leave is appropriate and if so, to where.

(c)

Whether or not it would be appropriate, and if not, why not, for the Claimant to be transferred to Beaconsfield Villas if it were registered for the purposes of Section 34 of the Mental Health Act 1983; and

(d)

any further questions proposed by solicitors for the Claimant or the Defendant which shall be put to the persons identified in this paragraph, and served on all parties by 4pm on 1 August 2004.

4.

If necessary and practicable Professor O'Brien Stewart Sinclair, Dr Sanders, Dr Campbell and the Claimant’s RMO shall meet (either in person or by telephone) at a meeting to be jointly chaired by solicitors acting for the Claimant and the Defendant to discuss areas of agreement and disagreement and that a note setting out the areas of agreement and disagreement be prepared jointly by solicitors acting for the Claimant and Defendant. Such meeting shall take place, if possible, prior to the 6 December 2004. The note of such meeting shall be filed with the court and served on all parties, if possible, by 10 September 2004.”

The purpose of those directions is obvious on their face. It is to enable the medical and social work experts who have treated and/or reported on this matter to discuss and identify points of agreement and disagreement between them.

These directions were not complied with in full before the hearing that took place before me on 15 and 16 September 2004. To my mind this was extremely unfortunate. One of the reasons that such meeting did not take place is that during the relevant period the Claimant did not have a permanent RMO because his previous RMO had left his post and a new appointment was yet to be made. Also Dr Sanders was away on sabbatical leave. However, as I understand it, there was no practical reason why Professor O'Brien, Mr Sinclair and Dr Campbell should not have had a discussion in an attempt to clarify the differences, or apparent differences, between them.

However as is apparent from the fact that I am giving this judgment the Council continued to seek a discharge of the September 2002 Consent Order in the absence of the current views of an RMO for the Claimant and in the light of the assertion of the Claimant that his previous RMO was indicating that he would recommend s. 17 leave or the Claimant to Beaconsfield Villas. There can be no doubt that after the May hearing the Council was fully aware that this was the Claimant’s position.

In my view correctly it was not argued before me either (a) that the court was functus and could not discharge or vary the September 2002 Consent Order, or (b) that the September 2002 Consent Order evidenced a real contract which the court could only interfere with on contractual grounds (see for example Seibe Gorman Ltd v Pneupac Ltd [1982] 1 WLR 185).

In my judgment in a case such as this which relates to a dynamic situation on the ground the court is not confined to staying or refusing to enforce the September 2002 Consent Order and pursuant to the liberty to apply contained in it the court can either discharge or vary that order. This was common ground but none of the counsel involved found a case that was directly in point as to the approach the court should adopt in considering whether it should enforce, discharge or vary that order.

As a matter of general principle it seems to me that the public and private interest in there being finality in litigation means that a party to proceedings for judicial review who seeks a discharge or variation of an order it has consented to (here the Council) has to satisfy a high test. Certainly it seems to me that where, as here, the order relates to the performance of a statutory duty against a dynamic background situation the existence of the order means that the situation is different to that which would have existed if an order had not been made. This is not least because the statutory decision maker is no longer the only relevant decision maker as to changes in its plans. Before it can exercise its statutory power or discretion to make a change it must (absent all relevant consents) seek and obtain a discharge or variation of the order it has entered into from the court.

Again as a matter of general principle it seems to me that the onus of establishing that a court should discharge or vary a consent order rests on the party who invites the court to do this and that that party should present the court with (a) a cogent and clear case, and (b) clear evidence in support of that case and thus the reasons why the discharge or variation is sought.

These points are supported by (a) Chanel Ltd v F W Woolworth & Co Ltd [1981] 1 WLR 485 at 492/3 which confirms that unless an order otherwise states it may only be varied if there has been a significant change of circumstances since it was made or the party who seeks its variation has since become aware of facts which he could not reasonably have known or found out at the time the order, (b) the approach taken in orders approved and made by the court with the consent of the parties in ancillary relief proceedings under the Matrimonial Causes Act 1973 (e.g. S v S (Ancillary Relief: Consent Orders) [2002] 3 WLR 1372 (although the need for the court to make the order in that jurisdiction is a distinguishing feature of that approach, in my view it provides a confirmation - should one be needed - of the public and private interest in finality of litigation) and (c) the approach taken by Blackburne J in Gerrard Ltd v (1) Read and (2) Christows Asset Management Ltd (a transcript of the judgment given on 21 December 2001 was provided to me – see in particular pages 12, 13, and 27 (where the judge refers to a considerable onus being on the applicant for a variation to come forward with good reasons to justify the court revisiting the order).

Thus it seems to me that the onus is on the Council to advance good reasons why the September 2002 Consent Order should be discharged, and to support those reasons with evidence of sufficient detail and clarity to establish a clear and cogent case.

In my view applications to discharge, vary or enforce orders made by consent involve the court exercising a judicial discretion having regard to the above points and all the circumstances of the individual case. But I agree that generally (and in this case) the approach taken in R v North and East Devon HA ex p Coughlan [2001] QB 213 provides a helpful guide. That case concerned a legitimate expectation induced by a promise made by a public body as to how it would act in the future. Here the equivalent of that promise has been incorporated into a consent order and in my view it follows that additional factors that have to be considered in deciding whether the reasons advanced by the Council establish a sufficient overriding interest to justify departing from the consent order are the public and private interest in the finality of litigation and the point made earlier that the order means that the Council is not the only decision maker.

The Coughlan case also demonstrates the point that on an application for discharge of a consent order the court and thus the parties should consider whether a variation was more appropriate and thus (or separately) what alternatives are being suggested. It follows that here the parties and the court need to address what the position of the Claimant will be if the September 2002 Consent Order is discharged and whether it could, or should be, varied rather than discharged.

Here as Gage J pointed out the Claimant achieved a substantial degree of success and as appears from this judgment the project to be carried out pursuant to the September 2002 Consent Order was put in place and designed with him specifically in mind. In my view it follows that to succeed in obtaining the discharge of the September 2002 Consent order the Council need to advance with clarity compelling reasons why this why this should be done which would include reasons why a discharge rather than a variation is appropriate having regard to the effect of those alternatives.

The Care Plan provides as follows:

“Proposed service

1

[The Claimant] will need to be in a secured community placement within a 45 mile radius of Brighton and Hove that supports adult clients with autism, learning disability, epilepsy and adults who display challenging behaviour…………

2

[The Claimant] will require 24 hour staffing input, from trained and qualified staff, and to be allocated to a key worker.

3

The service to provide a waking night service and management on-call service.

4

The service to promote and encourage daytime activities.

Self Care

1

[The Claimant] will require assistance and support with his personal care.

2

Medication to be administered by the shift-worker, no unqualified staff to administer medication. PRN should only be administered by the shift leader or on medical advice.

Health

1

Staff to have relevant training around the areas of epilepsy control and restraint.

2

Staff to receive development and training in autism.

3

[The Claimant] to receive a regular health check up by the GP….. and any other health professionals.

Mental Health

1

[The Claimant] to receive psychiatric and psychological support/intervention from the developmental and learning disability team in Brighton and Hove.

2

A risk management guideline planned to be in place, completed by the psychologist at Care Principles [that is the private hospital where the Claimant was then and is now detained].

Personal risks

1.

Staff to aware that [The Claimant] requires 24 hour support. He will also require staff support when he is out in the community.

2

Staff to be aware that there is concern around self-harm, only as a consequence of his challenging behaviour.

Environment

1

[The Claimant] could live in a service with up to four other service users; in a secure community setting. [The Claimant] would require space and independence, living on the ground floor”

The care plan then contains a number of tables which indicate that the Claimant has a considerable/severe problem in respect of being verbally aggressive, physically aggressive, self neglect and harm to others. In the comments as to the first two it is stated as follows:

“At times [the Claimant] can display disruptive and physically aggressive behaviour, there are substantial issues regarding [the Claimant’s] challenging behaviour. Due to high anxiety levels, [the Claimant] requires a calm non-threatening approach to reduce his anxieties around staff and new people. [The Claimant] is very aware of his parent’s anxieties and distrust of professionals. At times [the Claimant] has reacted to his parents feeling by displaying a physical outburst.”

Later the care plan contains the following:

“On 28 June 2001 [the Claimant] was transferred from the Martin Long Centre, an assessment and treatment run by the Sussex Weald and Downs NHS Trust. [The Claimant] was admitted into Cedar House, a care principal secure unit, under S 3 Mental Health Act 1983. He was admitted under the category of mental impairment.

Brighton & Hove Social Care and Health and Care Principles have entered into an agreement with [the Claimant’s] parents and family to carry out a needs led assessment and to ensure that a suitable service provision is developed for the {Claimant] within a 30 mile radius of Brighton & Hove or a 45 minute journey one way.

[The Claimant] has a diagnosis of autism from early childhood, he will at all times require 24 hour close care and supervision from specialist staff experienced in supporting clients with a spectrum disorder. [The Claimant] has undertaken a psychological assessment that indicates that he has severe learning disability; he will require staff to support him in this area. Due to his epilepsy [the Claimant] will need support and medication administered by staff. Overall, [the Claimant] needs to live in the community in a secured accommodation, with trained, qualified staff. He will also require day care activities to stimulate and promote interests and hobbies that he can enjoy.”

(By reference to a further table)

[The Claimant] could live in a service with up to four others service users in a secure community setting. [The Claimant] will require space and independence living on a ground floor prior to such a move [The Claimant] will need a risk assessment and guidelines completed by the psychologist at his current placement. A contract is required between parents and service provider and Brighton & Hove SC & H to avoid parental mistrust and conflict.

Assessors statement (in support of above Eligibility Criteria)

Due to the [Claimant’s] autism and severe learning disability, he will need to be supported at all times, as shown in the past. Changes to his environment can cause him acute anxiety ands result in challenging behaviour. Parents and professionals are all in agreement that the [Claimant] would require support when out in the community due to his needs.

Assessor’s statement (in support of consideration of continuing health care criteria) if eligibility for continuing health care is likely undertake a joint assessment and do not proceed further with this form.

East Sussex Brighton & Hove Health Authority fund [The Claimant]’s placement. Also he is currently detained under the Mental Health Act for mental impairment. [The Claimant] will jointly require continuing health care funding and local authority funding in his environment due to ongoing levels of his challenging behaviour and periods of unstable mental state and epilepsy.”

I note that the last point envisages joint funding although at that stage the B & H Care Trust were not parties to the proceedings.

A Project Plan was also annexed to the September 2002 Consent Order. It gives time periods for matters such as building work and the recruitment of staff.

At an early stage in the timetable under the heading ‘Task’ there is provision in the following terms ‘confirmed change of use to registered care home’. This is timed for the week of 15 July 2002. It is important because it shows that what was agreed was that the project and thus what was being planned and would be put in place was a unit that was so registered.

To my mind this is the starting point for a consideration of the present applications.

Paragraph 3 of that order is effectively procedural. There is no dispute that the Council simply did not comply with it although in respect of parts of its non-compliance the Council offers excuses.

Happily although in 2001 there was concern that the Claimant’s condition might regress if he was to remain at Cedar House this has not occurred.

The main issues revolve around what the obligations of the Council were and are under paragraphs 1 and 2 of the September 2002 Consent Order.

Paragraph 2 is in clear terms and is naturally dependent on the provisions in the project plan. It has not been argued that those provisions are too uncertain to be enforced. Indeed it is the position of the Council that although substantially delayed the project as set out in that plan will be completed and pursuant thereto an establishment to be known as Beaconsfield Villa will be created.

On its face paragraph 1 of the September 2002 Consent Order is clear in its terms and provides that the Council is to have available to the Claimant a service from no later than 29 June 2003. It was argued on behalf of the B & H Care Trust that the obligation under paragraph 1 was wholly personalised to the Claimant. In a sense this is correct but in my judgment when read with paragraph 2 what paragraph 1 is providing is that the service to be made available is to be provided at the accommodation or establishment completed pursuant to the project plan.

It has not been suggested that the reference in paragraph 1 to the care plan renders the obligation in that paragraph too uncertain to be performed.

What the September 2002 Consent Order does not do is to impose an obligation on the Council to place the Claimant in the accommodation or establishment completed pursuant to the project plan. This reflects the relevant legislation and the point that the Council would not have, and never have had, the power or ability to do this. This explains why the September 2002 Consent Order was made in terms that the obligation of the Council was only to have a service available for the Claimant.

To my mind the date of 29 June 2003 and the dates in the project plan are not of the essence. Further on that basis in my view it is clear that an obvious and important date against which it should be considered whether the obligations of the Council under the September 2002 Consent Order should be discharged, or remain in force for the time being, is the date now contemplated for completion of the project, namely early 2005.

As I understand the position, at the initial stages of the Claimant’s application part of the information being sought was to enable the Official Solicitor to establish whether the Council were carrying out the project plan and whether any alterations in it should be considered to meet (or better meet) the needs of the Claimant. The latter might involve the Official Solicitor accepting that the September 2002 Consent Order was no longer appropriate and seeking a variation to it that the Council might resist. The former might involve the Claimant (through the Official Solicitor) requiring the Council to put in place the project as agreed.

Details of the works now being done to complete the project in accordance with the care plan and project plan arrived after the May hearing and thus very late in the day from the Council. They are in the statement of the project manager John Symonds dated 24 June 2004 and the exhibits thereto It was not asserted before me in September that the Council was not carrying out, and would not complete, the project in accordance with the September 2002 Consent Order and in response to my questions (rather than a challenge by the Claimant) I was taken by counsel for the Council to parts of that detail to make good her contention that the Council was completing the project as planned.

Further it was not asserted (as foreshadowed in recitals to the order made in December 2003) that I have highlighted earlier that some alterations should be made to render the unit at Beaconsfield Villas the appropriate placement for the Claimant.

I am unclear whether these points have been considered, or considered fully, on behalf of the Claimant in the light if the detail of the project as provided by Mr Symonds. In my view they should be, if this has not been done.

However in light of the way in which the case was argued the overarching point to be considered is whether the Council are bound to make available to the Claimant a service at Beaconsfield Villas as and when the works and staffing etc. are completed in accordance with the terms of the September 20002 Consent Order and, if so, for how long the Council should keep that service available at that location.

Provisions of the 1983 Act (and of the 2000 Act and the Code of Practice referred to later) form part of the relevant background against which the September 2002 Consent Order was made and to the present applications. They are also part of the background to possible further questions that were not fully argued before me.

Section 3 of the 1983 Act provides as follows:

3

Admission for treatment.

(1)

A patient may be admitted to a hospital and detained there for the period allowed by the following provisions of this Act in pursuance of an application (in this Act referred to as ‘an application for admission for treatment’) made in accordance with this section

Section 23 of the 1983 Act provides (inter alia) as follows:

23

Discharge of patients

(1)

Subject to the provisions of this section and section 25 below, a patient who is for the time being liable to be detained or subject to guardianship under this Part of this Act shall cease to be so liable or subject if an order in writing discharging him from detention or guardianship (in this Act referred to as ‘an order for discharge’) is made in accordance with this section.

(2)

An order for discharge may be made in respect of a patient –

(a)

where the patient is liable to be detained in a hospital in pursuance of an application for admission for assessment or for treatment by the responsible medical officer, by the managers…………….”

Section 117 of the 1983 Act provides (inter alia) as follows:

117

Aftercare

(1)

This section applies to persons who are detained under section 3 above ………. and then cease to be detained and (whether or not immediately after so ceasing) leave hospital

(2)

It shall be the duty of the Primary Care Trust or Health Authority and of the local social services authority to provide, in co-operation with relevant voluntary agencies, aftercare services for any person to whom this section applies until such time as the primary care trust or health authority and the local social services authority are satisfied that the person concerned is no longer in need of such services; but they shall not be so satisfied in the case of a patient who is subject to aftercare under supervision at any time while he remains so subject

(3)

In this section ‘the Primary Care Trust or Health Authority means the Primary Care Trust or Health Authority and ‘the local social services authority’ means the local social services authority, for the area in which the person concerned is resident or to which he is sent on discharge by the hospital in which he was detained.

Section 17 of the 1983 Act provides (inter alia) as follows:

17

Leave of absence from hospital

(1)

The responsible medical officer may grant to any patient who is for the time being liable to be detained in a hospital under this Part of this Act leave to be absent from the hospital subject to such conditions (if any) as that officer considers necessary in the interests of the patient or for the protection of other persons.

(2)

Leave of absence may be granted to a patient under this section either indefinitely or on specified occasions or for any specified period; and where leave is so granted for a specified period, that period may be extended by further leave granted in the absence of the patient.

(3)

Where it appears to the responsible medical officer that it is necessary so to do in the interests of the patient or for the protection of other persons, he may, upon granting leave of absence under this section, direct that the patient remain in custody during his absence; and where leave of absence is so granted the patient may be kept in the custody of any officer on the staff of the hospital, or of any other person authorised in writing by the managers of the hospital or, if the patient is required in accordance with conditions imposed on the grant of leave of absence to reside in another hospital, of any officer on the staff of that other hospital.

(4)

In any case where a patient is absent from a hospital in pursuance of leave of absence granted under this section, and it appears to the responsible medical officer that it is necessary so to do in the interests of the patent’s health or safety or for the protection of other persons, that officer may, subject to sub section (5) below, by notice in writing given to the patient or to the person for the time being in charge of the patient, revoke the leave of absence and recall the patient to the hospital

(5)

A patient to whom leave of absence is granted under this section shall not be recalled under subsection (iv) above after he has ceased to be liable to be detained under this Part of this Act.”

Section 34(1) of the 1983 Act provides that:

The responsible medical officer’ means (except in the phrase ‘the community responsible medical officer’)-

(a)

in relation to a patient who is liable to be detained by virtue of an application for admission for assessment or an application for admission for treatment or who is to be subject to after-care under supervision after leaving hospital the registered medical practitioner in charge of the treatment of the patient.

Section 145(1) of the 1983 Act defines hospital as follows:

‘Hospital’ means –

(a)

any Health Service hospital within the meaning of the National Health Service Act 1977; and

(b)

any accommodation provided by a local authority and used as a hospital by or on behalf of the Secretary of State under that Act;

and “hospital within the meaning of Part II of this Act” has the meaning given in Section 34 above.

Section 34(2) provides as follows:

Except where otherwise expressly provided this Part of this Act applies in relation to a registered establishment, as it applies in relation to a hospital, and references in this Part of this Act to a hospital, and any reference in this Act to a hospital to which this Part of this Act applies shall be construed accordingly.

Section 34(1) defines ‘registered establishment’ as follows:

‘Registered establishment’ means an establishment –

(a)

which would not, apart from subsection (2) below, be a hospital for the purposes of this Part; and

(b)

in respect of which a person is registered under Part II of the Care Standards Act 2000 as an independent hospital in which treatment or nursing (or both) are provided for persons liable to be detained under this Act.”

Section 2 of the 2000 Act provides (inter alia) as follows

2

Independent hospitals etc.

(1)

………

(2)

A hospital which is not a Health Service Hospital is an independent hospital

(3)

“Hospital” (except in the expression Health Service Hospital) means –

(a)

an establishment –

(i)

the main purpose of which is to provide medical or psychiatric treatment for illness or mental disorder or palliative care; or

(ii)

in which (whether or not other services are also provided) any of the listed services are provided;

(b)

any other establishment in which treatment or nursing (or both) are provided for persons liable to be detained under the Mental Health Act 1983.

(4)

…….

(5)

…….

(6)

References to a person liable to be detained under the Mental Health Act 1983 do not include a person absent in pursuance of leave granted under section 17 of that Act.

I was referred to the Code of Practice Mental Health Act 1983 published pursuant to section 118 of that Act and in particular to paragraphs 27.3 and 27.7 thereof which provide as follows:

27.3

Section 117 of the Act requires Health Authorities and local Social Services Authorities, in conjunction with voluntary agencies, to provide after care for certain categories of detained patients. This includes patients given leave of absence under section 17.

27.7

The courts have ruled that in order to fulfil their obligations under section 117 Health Authorities and Local Authorities must take reasonable steps to identify appropriate after care facilities for a patient for his or her actual discharge from hospital. In view of this, some discussion of after care needs, including social services and other relevant professionals and agencies, should take place before a patient has a mental health review tribunal or manager’s hearing, so that suitable aftercare arrangements can be implemented in the event of his or her being discharged.

I was referred by counsel for the Claimant to the following cases: B v Barking, Havering and Brentwood Community Health Care NHS Trust 1999 1FLR 106 in particular at 113E, R (on the application of DR) v Merseycare NHS Trust 2002 AER 28 in particular at paragraphs 29 and 30 of the judgment of Wilson J, R (W) v Doncaster Metropolitan Borough Council 2003 EWHC 192 (Admin) in particular at paragraph 43 of the judgment of Stanley Burnton J and R (Von Brandenburg) v East London and the City Mental Health NHS Trust and another 2003 3WLR 1265 in particular at 1274 – paragraph 10 of the speech of Lord Bingham.

In addition I was referred by counsel for the Council to:

That common ground was that if there had been agreement that on completion of the project at Beaconsfield Villas the Claimant should go there on s. 17 leave for a short trial period and with a view to, and an expectation of, him being discharged after that period the project plan, and thus the September 2002 Consent Order, remained appropriate and thus something that the Council was obliged to keep in place pursuant to that order (and their statutory duties).

There was also (inevitably) common ground on the important point that the decision maker on whether or not s. 17 leave should be granted was a patient’s RMO.

By reference to the above authorities (and others) disputes were identified between the parties as to:

The case was not argued by the Council (or the B & H Care Trust) on the basis that if the Claimant’s RMO was to recommend, or give s. 17 leave, on the basis that during it, and as and when it was completed, the Claimant should be at to Beaconsfield Villas a challenge to that decision would be bound to succeed.

As I understood it notwithstanding the terms of the February 2004 directions order (or perhaps as a consequence of what it produced) it was no longer being asserted by anyone that dual registration was a possibility. However I was unclear whether dual registration was, or was thought to be, a possibility at the time that the September 2002 Consent Order was made and recommended. It seems to me that this should be investigated and if at that time dual registration was, or was thought to be, a possibility its effect should be considered both as to the underlying intentions at the time and the orders that should be made now.

In broad terms this is that the Council will complete the works in accordance with the project plan (or substantially in accordance therewith) but that when it has done so it should not be obliged to make accommodation at that establishment available to the Claimant. The Council asserts that they do not have to do this and therefore that the order should be discharged because:

As to point (b) it was advanced as a change in circumstances by reference to the medical view now advanced by the Council which warranted a discharge of the September 2002 Consent Order. It was asserted that that medical opinion showed that the prognosis or expectation at the time of the September 2002 Consent Order (namely that the Claimant would be fit for discharge by June 2003) had not been met and the circumstances now were thus very different from those envisaged at the time the September 2002 Consent Order was entered into.

In this context it was asserted as a central point that what had been agreed and what the Council could provide was a care home, not a hospital and this had been agreed against an expectation that the Claimant would be discharged and thus that he would be an appropriate person to be placed in a Care Home and thus at Beaconsfield Villas.

As the argument progressed it was accepted, or effectively accepted, that the discharge it was said was expected and envisaged in September 2002 could have been preceded by a trial period of s. 17 leave. In my judgment it is plain that this was envisaged in September 2002. It is a natural progression of thought. It is different to a medium to long-term placement at Beaconsfield Villas on s. 17 leave.

One of the reasons why the Council sought an adjournment was to enable it to seek a discharge of the order and to support its case for discharge by full and proper evidence. To my mind oddly in this context the asserted expectation or common understanding as at September 2002 was not supported by an express assertion to this effect by a deponent. Rather I was taken to correspondence to found this assertion.

I was left uncertain as to what the Council’s care plan for the Claimant was if and when the September 2002 Consent Order was discharged. As I understood the position of the Council it was that the medical evidence established that the Claimant should be detained at a hospital for the foreseeable future and the Council had no statutory duty to put in place an alternative plan. Thus, as I understood it, the Council looked to the care plan put in evidence by the B & H Care Trust. This had no identified timescale and represents a dramatic change so far as the Claimant is concerned. Indeed it leaves him in a similar position to that which he found himself in when he began the proceedings for judicial review that resulted in the September 2002 Consent Order.

The question therefore arises whether the Council have established their case by the evidence on the approach at law I have set out earlier concerning the discharge or variation of a consent order.

Further arguments might arise in respect of whether the Council should make the service at Beaconsfield Villas available to the Claimant by reference to the funding that will be made available to permit the Claimant to be accommodated at that establishment. These arguments were not fully pursued before me.

At the first hearing I was referred by counsel for the B & H Care Trust to R (F) v (1) Oxfordshire Mental Health Care NHS Trust (2) Oxfordshire NHS Health Authority [2001] 1 MHLR 140 and in particular to paragraphs 60 to 75 of the judgment of Sullivan J in respect of the position of an NHS Care Trust. In making his submissions by reference to that authority counsel for the B & H Care Trust emphasised that the decision making process, and any decision of the B & H Care Trust, in respect of the Claimant was not ‘budget driven’. The reason for this was as counsel submitted the B & H Care Trust is under obligations to fund the care of the Claimant whether he moves or stays where he is. I am unclear as to how far this stance is predicated on the present view of the B & H Care Trust based on medical advice that the Claimant should remain subject to the 1983 Act and who would be responsible for funding the care (or the medical elements of the care) of the Claimant (and thus whether this stance would still exist) if the Claimant was to be discharged and move to Beaconsfield Villas. As I understood the submissions made on the first occasion on behalf of the B & H Care Trust they were to support a conclusion that the September 2002 Consent Order should be discharged immediately on the basis that the B & H Care Trust was not a party to it, was therefore not bound by it, would not agree to fund the placement of the Claimant at Beaconsfield Villas and therefore it could not take place. In the light of the fact that this would in effect thwart the implementation of a court order consented to by another pubic body I was a little surprised by this approach.

It seemed to me that the point that the stance of the B & H Care Trust that its decision was “budget neutral” may be a factor that differentiated this case from the case before Sullivan J as to the ambit of lawful disagreement between a Care Trust and the RMO, given that the Care Trust in this context is arguably primarily, or simply, a funding body rather than a placement body. It also seemed to me that there may be a distinction to be drawn between this case and the case before Sullivan J on the basis that here the Council have consented to an order of the court which the Claimant seeks to have enforced or performed and it is arguable that the B & H Care Trust need to take this factor into account by having regard to the effect of any decision they make as to funding on the implementation of the word of, or the spirit underlying, that court order.

These points did not have to be explored further because at the adjourned hearing counsel for the B & H Care Trust made it clear that notwithstanding that the care plan it had put in on the basis that in the short to medium term the Claimant requires placement in a secure unit able to accommodate patients detained under the 1983 Act (i.e. a hospital) either (i) I had misunderstood the position of his client, or (ii) it had changed, and that it regarded its reaction to a recommendation of the Claimant’s RMO that the Claimant should be placed at Beaconsfield Villas as a future question. Counsel told me and I accept that if this was to occur the B & H Care Trust would consult, try to reach a consensus and consider the views of the RMO before reaching a decision. In my view that is an appropriate stance.

Notwithstanding that stance counsel for the B & H Care Trust maintained the position that his client supported the application for the discharge of the September 2002 Consent Order by reference to what he (and the Council) described as the consensus view that Beaconsfield Villas cannot meet the needs of the Claimant now or in the future and that it would not be safe to place him there.

It seems to me that this support and the basis for it is fatally undermined by the acceptance of the B & H Care Trust that if the Claimant’s RMO recommends a placement at Beaconsfield Villas it would have to be considered in the circumstances of this case. It was not argued that the RMO would not do this for example on the basis that no reasonably competent RMO could do so. Accordingly the B & H Care Trust were in my view correctly accepting that it was possible that the Claimant’s RMO would make this recommendation and that if this happened it would have to be considered even if that consideration led to a challenge to that recommendation or its effect by the Council or the B & H Care Trust.

To my mind this correct acceptance of what should happen if the Claimant’s RMO made such a recommendation is a correct acceptance that what was described as the consensus view of the doctors cannot properly found a discharge of the September 2002 Consent Order because the Claimant’s RMO is not a part of that consensus and it was not argued that the possibility that he or she would recommend s. 17 leave to Beaconsfield Villas could be ignored.

Counsel for the Council who appeared in September (but not in May) to my mind sensibly recognised the problems caused by the absence of support by the Claimant’s RMO for what she asserted was the consensus view of the doctors namely that for the foreseeable future the Claimant would have to be detained and therefore placed in a hospital and not in a Care Home (and thus Beaconsfield Villas).

These problems affect, and in my judgment fatally undermine, both points (a) and (b) of her primary position, because even if the expectation and understanding in September 2002 was as she asserts a recommendation of discharge, or s. 17 leave to Beaconsfield Villas with a view to discharge in the short term would destroy the argument based thereon because it would indicate that the RMO was of the opinion that the alleged expectation and understanding had in any event now been fulfilled.

Counsel therefore advanced an alternative which was that I would give further directions (no doubt in the hope that the Council would on this occasion comply with them substantively and on time) and that if answers to issues raised therein indicated that it would not be appropriate for the Claimant to have s. 17 leave at Beaconsfield Villas the September 2002 Consent Order should be discharged. One of the directions suggested was that the views of the Claimant’s current RMO should be obtained.

The directions suggested were sensibly geared to the expected completion date of Beaconsfield Villas. They did not contain anything about an alternative care plan if the September 2002 Consent Order was discharged.

The Claimant’s overall position is that there is no effective difference between his condition at the times leading up to the making of the September 2002 Consent Order, the time it was made and now. If anything the Claimant asserts that the weight of the medical evidence is that he has improved. The Claimant also asserts that the evidence demonstrates that the view of his RMO is, and has for some time been, that if and when the accommodation referred to in the project plan is completed the Claimant should be placed there pursuant to section 17 of the 1983 Act.

In short, the Claimant asserts that what he needs now is not materially different from what he needed when the care plan referred to in the September 2002 Consent Order was put in place and that order was entered into. In this context I was referred in particular to the tabular parts of the care plan which indicated that:

The Claimant therefore asserted that the September 2002 Consent Order should remain in place without any alteration.

The Claimant did not effectively dispute that steps along the lines of the directions sought by the Council’s secondary position should be made but as I understood said that this should be done outside the existing applications. In any event the Claimant asserted that the order made now should not have built into it an order for such discharge in identified circumstances (subject to liberty to apply).

Having regard to the history and the need to address this matter again in the future it is in my view appropriate to look at the history in stages.

At the time of, and before, the September 2002 Consent Order was entered into (and thus during the currency of the original proceedings) there were reports from the following:

At a later stage the following have become involved:

There are also reports from others in the bundle, for example a report by psychologists at Cedar House. There is also a report by Max Buchanan (to which I was not specifically referred). He is a project officer and his report contains a summary of the personal/service history of the Claimant and was completed in April 2003. He summarises incidents of aggression and it seems to me that this summary may assist in unravelling some of the problems in connection with the existing medical evidence and why, if it be the case, what was agreed in September 2002 as being appropriate for the Claimant is no longer what is appropriate for him.

As I have said I shall look at this at various stages during the history of the case.

The care plan that was ultimately annexed to the September 2002 Consent Order bears the date 12 November 2001. It will also be remembered that the first order by consent was on 17 December 2001. By this stage Professor O'Brien and Mr Sinclair had reported and there was of course information from Dr Karunapala. The Claimant had been admitted to Cedar House on 29 June 2001. In a report dated 14 September 2001 Dr Karunapala says this:

“The prognosis of the Claimant’s mental disorder.

Autism is not a condition that can be cured, though some of the associated behaviours may become less prominent as the individual progresses through adult life. He will continue to exhibit learning difficulties throughout life. His functioning and behaviour may be improved by the interventions for associated conditions alluded to previously (such as improved management of any mental illness which may be present but which, as yet, is undiagnosed or by improved management of his seizure disorder) or by environmental manipulation for his autistic disorder.

The timescale for assessment and treatment under detention in conditions of security.

As alluded to previously, the treating team consider that assessments and appropriate interventions can be instituted within a timescale of approximately 6 to 8 months from the present time.”

I pause to comment that the above prognosis of the Claimant’s mental disorders has been consistently included in Dr Karunapala’s reports. Further, I comment that the timescale referred to in this report for assessment and appropriate interventions ends in June 2002.

This timescale is also supported in the first report of Mr Sinclair dated 15 September 2001 where he says:

“The view of the clinical team as expressed to myself and Professor O'Brien ……. was that if the patient does as well as he is at present in 6 to 9 months a comprehensive needs assessment would be available from the hospital’s perspective and a community placement could then be a viable possibility. Mr Warden emphasised that the responsible local authority had their own statutory responsibility to prepare their own needs assessment in conjunction with the hospital staff; and all present acknowledged that the 6 to 9 months projected timescale clearly implied that the local authority should be actively planning local resources now.”

Thus, unsurprisingly, in his report dated 20 September 2001 Professor O'Brien also reflects that timescale and says the following:

“The Claimant – current regime.

As described [the Claimant] does occasionally require to be subjected to control and restraint although not often.

The Claimant – current diagnoses.

The Claimant’s current diagnoses are of mild to moderate learning disability (i.q around 50) epilepsy and autism. These diagnoses are long standing and are based on my own examination and appraisal of his presentation and are appropriate in my opinion.

Potential rehabilitation.

Dr Barron and Mr Ward [a social worker and doctor at Cedar House] explained that they felt that the Claimant might be ready to move on from hospital in 6 to 9 months. They felt that within that time the Claimant might attain the stability that he needs to attain before moving on. Also within that time they have agreed with the local authority who operate within Brighton that a needs assessment will be carried out in order to facilitate moving on. It would then be the task of the Brighton agency to take the Claimant’s case further.

Summary

Finally, I confirm that in my opinion such detention (i.e. in Cedar House) is likely to avoid further deterioration and eventually result in further improvement as evidenced in his current recent progress.

Given the need for a directive regime under which the Claimant is currently managed including for example the occasional use of control and restraint it is my opinion that the Claimant’s need for health and social care are indeed such that they can only be met in hospital at present (my emphasis).

I am of the view that the Claimant should remain in hospital at present. In my prognosis I confer with Dr Barron’s plans. These are, namely, that a period of 6 to 9 months is an appropriate time for turning to stabilise before being transferred into the community. (my emphasis)

The community placement which will be required for the Claimant’s care on leaving hospital would require:

i)

3 to 1 staffing

ii)

full structure and careful personal programme planning based on the Claimant’s autism.

iii)

medical expertise to deal with the Claimant’s needs for medication for autism, behaviour disorder and epilepsy

iv)

staffing skilled and directive management and special rehabilitation

v)

specialist staff who have the capacity to work in partnership with the Claimant’s parents in the kind of sensitive appropriate manner which currently applies at Care Principles (Cedar House).”

In an addendum to that report Professor O'Brien says this:

“In summary it is my opinion that the Claimant would be disserved by remaining in his current placement longer than is necessary and that should he remain there beyond June 2002 he is likely to regress. In other words, a general deterioration in his behaviour and functioning would occur in that event, in my opinion.”

I was taken to correspondence by counsel for the Council which reflected this prognosis as to the Claimant being ready for discharge in June 2002 (i.e a year before the date set for completion of Beaconsfield Villas in the September 2002 Order).

At this stage (but subject to the consideration of further comments from Professor O’Brien) I therefore accept, as was urged by counsel for the Council, that what was in mind was a discharge in June 2002 albeit that, naturally, some of the reports speak in more cautious terms. I add that in my view (as already mentioned) that if it had been put to them all relevant parties would have accepted that the first step towards that discharge would, or could, be s. 17 leave for a reasonably short trial period

It is also to be noted that at this stage Professor O'Brien had raised the point that if the Claimant remained detained in a hospital after June 2002 he might regress.

The above points are reflected in a letter from the solicitors then instructed by the Official Solicitor dated 25 October 2001which asserts that both Professor O'Brien and Mr Sinclair consider that whilst the current placement in Cedar House is appropriate in meeting the Claimant’s needs it would be detrimental to the Claimant’s long term welfare for him to remain within the current unit once he has sufficiently stabilised, likely to be between March and June 2002.

In short therefore at this stage the thinking was that the Claimant was likely to be stable enough to take up an appropriate community placement in about June 2002 (and thus one year before the date set by the September 2002 Consent Order and indeed three months before that order was made).

It follows that this understanding as reflected in correspondence and reports does not indicate what the common understanding relating to the Claimant’s readiness for discharge was in September 2002.

By way of further background to the position at this time, as I understand it, the position of the Claimant’s parents was that he should not be detained pursuant to s. 3 of the 1983 Act at all, or for longer than was absolutely necessary. As I understand their position it was, and has continued to be, that the Claimant does not need to be detained.

Dr Baker reported in April 2002 and there were updating reports from Mr Sinclair on 18 June 2002 and from Professor O'Brien on 22 July 2002.

I was referred to correspondence which shows that in May and June 2002 there was concern being expressed by the solicitors acting for the Claimant and the legal department at the Council that the Claimant might be discharged from Cedar House in June 2002 and thus as at that time his detention under s. 3 would not be renewed at the Mental Health Review Tribunal. This corresponds with the earlier view as to when the Claimant would be ready for discharge. But I note that the Council’s legal department indicate in their letter of 17 May 2002 that the last view received from Dr Karunapala (14 March 2002) was that he anticipated the Claimant having to remain within Cedar House for ‘probably…… about 1 year’.

However the concern that the Claimant would be discharged in the near future (with nowhere for him to go) is reflected in a report prepared by the Council for the Mental Health Review Tribunal to be held on 17 June 2002. In that report the Council state as follows:

“Service provision.

The local authority …….. are currently under judicial review in the High Court regarding the issue of service provision for the Claimant. Therefore the information that I am able to discuss is restrained by this fact. However, to address the concerns of the Tribunal Panel if the Claimant were to be discharged I am able to state:

a)

The local authority does not currently have a residential service in place for the Claimant in Brighton & Hove. However the local authority has carried out a tendering process and successfully short-listed an external provider regarding a suitable and appropriate service. Due to legal requirements around tendering an in-house proposal has been submitted and both proposals have been forwarded to the Council members to make a decision. On 17 May 2002 this was made public. The decision has been made for a bespoke in-house service either within the city limits (or a 30 mile radius) to be provided for the Claimant. A project plan has been drawn up and timescales are being put to that plan to include the identification of a suitable property to be acquired and adapted and staffed appropriately to meet the Claimants (and to other as yet unidentified service users need). If the Claimant’s section is not renewed Cedar House who are aware of the project plan and associated timescales will agree to keep it in the light of the need to reduce the number of moves and his progress with them to date.”

This statement to the Mental Health Review Tribunal by the Council indicates the genesis of the project plan attached to the September 2002 Consent Order and shows that it was specifically devised with the Claimant in mind.

Further the reference to the attitude of Cedar House can be said to indicate that the view at Cedar House was that the Claimant was ready for a move from Cedar House. In any event this attitude of Cedar House, namely that they would be prepared to keep the Claimant until the planned unit was ready for him because of the need to reduce the number of his moves has to be remembered when their views on his continued detention (and placement) at Cedar House are considered.

Dr Baker, who reported in April 2002, was of the view that Cedar House was the best placement that the Claimant had experienced so far, that he needed to be placed in a unit that could provide specifically for autistic young people and that he did not think that the Claimant should be detained on the basis of any mental disorder. But he could see that detention was justifiable on the basis that the Claimant has impairment. He was also of the view that the onus therefore lay with the local authority to identify a suitable placement that could cater for the Claimant as an individual in a small domestic setting with consistency of care, and with continued application of behavioural techniques that can work cooperatively with his parents who will also need to have their own input as to the Claimant’s needs of them. Dr Baker also pointed out that any change in placement would be likely to lead to a transient exacerbation of unwanted behaviours and that the particular methods of restraint (studio 3) that are recommended by the Autistic Society have been seen to assist with the management of autistic people with challenging behaviour in a most effective way without increasing arousal.

In his updating report Mr Sinclair was of the view that the timetable for the Claimant’s move to a new unit created pursuant to the envisaged project should not slip beyond March 2003.

In his updating report dated 27 July 2002 which comments on the report of Dr Baker, Professor O'Brien comments:

“---- along with myself, Dr Baker notes that the Claimant has progressed well within his present context, but that in the medium term future the crucial issue is that these improvements be maintained within a community setting and this should be possible without involving a placement very far from Brighton & Hove.” (my emphasis)

In commenting on a nursing report dated May 2002, and a social work report dated May 2002 Professor O'Brien says:

“In many respects this report [the nursing report] gives us a clear picture of just why it is the Claimant has done so well in the current placement – it is because of the very careful, sensitive management he is receiving.

I particularly note the care the authority is going to in endeavouring to make this [a service for the Claimant] an individually tailor made service – in this respect the phrase ‘a bespoke in-house service (either within the city limits or within the radius) should be provided for the Claimant’ – a good indication of the commitment of the local authority and is welcomed.”

Professor O'Brien also comments that the care plan is to be commended and in no sense does it underestimate the Claimant’s needs. It is this care plan (or one in essentially the same terms) which is referred to in the September 2002 Consent Order. Professor O'Brien also comments on the recent correspondence in May and June 2002 relating to the nature of the unit at Beaconsfield Villas and also that it is important, in his view, to stress the undesirability of the Claimant being discharged before an appropriate service is arranged.

Professor O'Brien supports the care plan. As to the timetable he refers to his earlier fear that the Claimant might ‘regress’ if a service was not available and there were risks involved if the placement was delayed further. However he expresses the view that the greatest risk to the Claimant would now be that he be withdrawn from the service where he is doing well at present for some less stable setting. He was, therefore, of the opinion that while all concerned would have preferred that the Claimant progressed more quickly (i.e as I understand it that the Claimant moved more quickly) the crucial thing was that he progressed to the right style and type of service with appropriate resources. He therefore supported the project plan and care plan and was of the view that the alternative, namely to force discharge quickly, was not feasible.

In a report dated 21 May 2002 Dr Karunapala gives a prognosis in almost identical terms to that in his earlier report save that he adds at the end the words ‘in a specialised unit’ so that the last phrase of that prognosis reads ‘by environmental manipulation for his autistic disorder in a specialised unit.’ Dr Karunapala continues in this report as follows:

“Grounds for detention.

The Claimant has a mental impairment and the nature and degree of his condition makes it appropriate for him to receive treatment in a specialised unit because of his abnormally aggressive and irresponsible behaviour probably complicated by his autistic spectrum disorder. He needs continuation of medication for the control of his behaviour and epilepsy and he is unable to give valid consent.

He should be treated in a hospital for his own health and safety and safety of others and the treatment could not be provided unless he is detained under the Mental Health Act. The treatment is likely to alleviate or prevent deterioration of the condition.”

In my judgment the above paragraph under the heading ‘Grounds for detention’ must be read (a) in the light of the point I have made earlier that Cedar House were indicating that they would keep the Claimant there pending the availability of the proposed new unit to avoid the upset a move would cause, and (b) in the light of that heading, rather than as a freestanding paragraph, or a paragraph which supports an argument that the condition of the Claimant had regressed or had not improved.

To my mind it should also be remembered at this stage there was some tension as to whether or not the Claimant would continue to be detained pursuant to s. 3, or be discharged when the unit that was then being planned for him was not ready.

Further in this context I note that in a record of an aftercare (s 117/CPA) meeting dated 2 July 2002 and signed by Dr Karunapala on it seems 7 August 2002 under the heading ‘Discharge Plans’ it is stated as follows:

“Dr Karunapala recommended a structured environment for the Claimant and said he was happy for him to transfer as soon as an appropriate placement was available. Dr Sanders told the meeting that there was no suitable long term living facilities in Brighton that could accommodate the Claimant under the Mental Health Act 1983. Dr Karunapala explained to the Claimant’s parents that if the Claimant was discharged from detention under the Mental Health Act at his forthcoming Mental Health Review Tribunal (04.07.02) he would not be able to remain an inpatient at Cedar House. The Claimant’s mother said if this occurred then she would take the Claimant home. At present there is no date from social services as to when the Claimant’s future placement will be available. With regard to the judicial review proceedings no one present at the meeting knew what was happening.”

I was taken to correspondence leading up to the making of the September 2002 Consent Order which confirmed that one of the problems being addressed by the solicitors then being instructed by the Official Solicitor and the legal department of the Council was the prospect that the Claimant might be discharged from detention under the Mental Health Act. By the time the September 2002 Consent Order was made this had not occurred indeed that detention had been continued.

At this stage I have not found, and was not referred to, any assertion that the move of the Claimant to the project at Beaconsfield Villas that was proposed was dependent upon further improvement, or indeed an improvement in the Claimant’s condition from what it was in June or September 2002. The only indication I have seen that this might possibly have been in anyone’s mind is the reported view of Dr Karunapala referred to in the letter from the Council’s legal department dated 17 May 2002 referred to above.

This may have to be investigated further with those who were then involved but the impression I have from the documents is that the envisaged delay to June 2003 was something that arose from the need to complete the project and if the project had been in place there and then (i.e. in June or September 2002) those involved would have been contemplating an immediate move of the Claimant to the new unit. Indeed it seems to me that the main concern was that the Claimant might be discharged in June 2002 when a placement was not available and thus to keep a detention under the 1983 Act in place for the next year at Cedar House (see for example the letter dated 19 June 2002 from the solicitors the acting for the Claimant). This was coupled with a concern that he might regress.

My impression from what I have seen, and what was particularly drawn to my attention, is therefore that in June 2002 the Claimant had made the improvement anticipated in 2001.

It follows that in my judgment the Council has failed to establish the understanding or expectation it has asserted in these proceedings that in September 2002 it was thought that the Claimant would improve sufficiently to warrant his discharge in six to nine months and thus in June 2003.

I however accept, and indeed it was not disputed, that in September 2002 the expectation was that the Claimant would be discharged and thus would be fit for discharge when the proposed unit at Beaconsfield Villas was completed and thus in June 2003, with the qualification that such discharge could be preceded by a reasonably short period of s. 17 leave (which would amongst other things be designed to cover the disruption of the move).

It follows that I have to consider the evidence to see whether (a) as the Claimant asserts there has been no material change (other than some improvement), (b) there has been some regression (or an identified lack of improvement) to found the medical opinion relied on by the Council and the B & H Care Trust or (c) the difference between the medical opinion now relied on by the Council and the B & H Care Trust is based on a different assessment of the Claimant and his needs.

In a psychiatric report dated 15 January 2003, Dr Karunapala reviews the progress of the Claimant since admission to Cedar House. He says this:

“In November 2001 I reviewed the medication and admitted Lamotrigine. A few weeks later his general behaviour became more manageable and he started engaging more at learning support……..

During September he was allowed periods of home leave and in October his behaviour became unmanageable. During this period he started attacking members of staff and residents. As a result two staff members had to go on sick leave.

Staff noted that when he returned from home leave he needed PRN medication more frequently for his agitation. At that time there was some changes in staff members also.

The clinical team decided that the Claimant needed an appropriate placement as agreed in the past. However the team later discussed the hardships the parents would have to undergo if the Claimant was placed in one of our sister units.

I was able to review the medication and as a result he became more manageable and the staff at Canterbury House were confident that they could provide care for him. As his behaviour improved remarkably we were able to grant him extended home leave for Christmas, although he was brought back one day early because of the Claimant’s unmanageable behaviour at home.

On return from home he was exhibiting aggressive behaviour but he settled within a few weeks and at present he is fairly settled except for his occasional outbursts.”

This seems to be referring to events in 2001 and early 2002. Later in that report Dr Karunapala says this:

“The Claimant suffers from mental impairment and exhibits impulsive aggressive behaviour. The nature and degree of the mental disorder make it appropriate for him to receive treatment in Cedar House at present. The treatment is necessary in the interests of his own health, safety and safety of others. He has no insight as to his behaviour and cannot give consent for his medication. Treatment would alleviate or prevent deterioration of his condition. The treatment cannot be provided unless he is detained at Cedar House until the proper placement is found for him as agreed at the Tribunal by the funding authority.”

As I understand it this psychiatric report was made for the purposes of the renewal of authority for the Claimant’s detention and the last part I have cited lends support for the view that Cedar House were being good to their word to keep the Claimant whilst the project at Beaconsfield Villas was being completed.

An aftercare (s. 117/CPA) meeting was held on 28 January 2003. The record of that meeting was signed by Dr Karunapala on 6 February 2003. The note of the meeting relating to a part of it attended only by professionals contains the following:

“Dr Sanders expressed her concern about the Claimant’s proposed community placement in Sussex; she anticipates it will break down because the level of the violence exhibited by the Claimant. She has communicated this view to the Health Authority and as a result a multi disciplinary meeting is to be held in February in Brighton. Dr Karunapala said he recommended that the Claimant should remain detained under the Mental Health Act on transfer to the community; Dr Sanders endorsed this view. The meeting thought the supervised discharge to a community placement would not be adequate and that s. 3 would be more appropriate allowing access as it does to the Mental Health Act Commission and Mental Health Review Tribunals. The meeting noted that the Claimant frequently requires physical restraint and at times intra muscular medication. The intended community placement for the Claimant will be his own staff flat (1 of 4) in a converted Victorian house. The other three flats will accommodate less challenging residents. A day service will be provided in the basement.”

The notes then go on to record that as discussed at the external CPA:

“Dr Karunapala said that he had given an undertaking to the Mental Health Review Tribunal (04.07.02) that the Claimant would remain an inpatient at Cedar House until his community placement became available and that he should transfer under s. 3 of the Mental Health Act. He repeated his view that Cedar House was not the ideal placement for the Claimant; house staff are not specially trained to care for residents with autism.”

I pause to comment that:

The Mental Health Review Tribunal sat on 9 April 2003 to consider the Claimant. At that hearing the Council was represented by counsel. In the reasons for the Tribunal’s decision, which I understand were drafted by the Tribunal Clerk or Assistant, and which are signed by the President of the Tribunal, it is stated as follows:

“The Tribunal heard that a specialist placement is being planned and that it is hoped this will be available for a period of trial leave later in the year and were pleased to note that there is effective inter-agency liaison in this planning process.”

I pause to comment that this passage from the reasons does not record who told the Tribunal this and whether it accorded with what they were told by the Council or whether the points they recorded were disputed by the Council (or anyone else). However it reflects a view that can be founded in the papers before me that many at that time were of the view that the Claimant could, and would, be placed at Beaconsfield Villas when it was completed, initially on the basis of trial leave. It is thus a recognition that at least some people were then considering the placement of the Claimant at Beaconsfield Villas on s.17 leave.

On 16 April 2003 a professionals meeting was held (it may be that this was the meeting that had been planned for an earlier date). It was attended by, amongst others, Dr Sanders and Dr Karunapala. A minute of that meeting contains the following passages:

“The Claimant’s current and future Mental Health Act status

Dr Karunapala made telephone enquiries and informed the meeting that the recent Mental Health Review Tribunal had upheld the Claimant’s section and so he remained detained under s. 3. The Tribunal was aware of the judicial review settlement in respect of the Claimant’s future care.

Dr Karunapala and his team were asked to comment whether there was a foreseeable time when the Claimant would be fit for discharge and the section revoked as it was no longer needed. It was difficult to give a prognosis. There was no cure, the issue was whether his symptoms could be alleviated. There were always going to be times when restraint was required and without a section the first time the Claimant was restrained or given intra muscular PRM medication it was likely an assault charge would follow.

Dr Karunapala had granted special leave to the Claimant and the Claimant had been on leave to parents for 2 days recently. For him to go on leave for longer periods was problematic as he was too disturbed and was a risk in the car.

The feasibility of the planned service in Brighton.

Dr Karunapala wondered if the Claimant could be placed under s. 3 of the Mental Health Act 1983 in the community. Gino Penswick indicated that enquiries of the NCSC had indicated that the service at Beaconsfield Villas would then require dual registration but this is not a service or model planned or agreed.

It was noted that at Cedar House there is always a nurse available. The Brighton & Hove community model does not provide that level of service with RMN (Registered Mental Health Nurse) and other mental health professionals available for immediate response. If the unit required dual registration there would have to be a registered nurse on site.

Dr Conboy-Hill and Dr Sanders expressed the view that the Claimant needs a social care model but also a medical care model – the current care service being planned for Beaconsfield Villas cannot provide this. They enquired as to the degree of support that the Claimant required in addition to the basic staffing levels outside.

Brighton & Hove have 2 major worries – professional support /buffers in house and recruitment and retention. Additionally Dr Conboy-Hill and Dr Sanders would not be able to match anything approaching a degree of psychological and psychiatric support it was supported that Cedar House were offering and that the Claimant needed and would not be available on site.

Cedar House reached crisis last year with the Claimant, the team were exhausted and at the edges of capacity in terms of coping. They had considered advising that they could no longer manage him. However as Cedar House provides one of the very few service models to meet the Claimant’s needs and the clinical manager would consider it probably the best service in the country for this type of client the view of Cedar House was that the Claimant should remain there.

Outcome.

The Claimant will stay on s. 3 for the foreseeable future – Cedar House has continuing evidence this level of care is required.

Natasha Watson advised that it could be argued the s. 117 duties on which the judicial review was based no longer arose as there was no realistic prospect of the Claimant coming off s. 3 in the foreseeable future. The consensus was that the model envisaged in the judicial review would no longer meet the Claimant’s needs safely. In those circumstances the matter could be returned to court.

Brighton & Hove will need a written report from Cedar House which confirms their opinion. They will be asked to comment on the proposed Brighton & Hove model, and if they feel this would not meet the Claimant’s needs what other service might be more appropriate. Natasha Watson (of Brighton & Hove Legal Services) advised that the Claimant’s solicitors could be invited to comment on or add to the terms of the request to Cedar House for this report. In the report Cedar House need to provide evidence around the skills in relation to providing a service for people with autism – his parents have raised concerns about this in the past.

Natasha Watson would advise the Claimant’s solicitors that the model agreed with the judicial review was under review and of the intention to request a written report from Cedar House to clarify the issues discussed at this meeting.

Dr Karunapala raised the issue of further s. 17 leave for the Claimant. It was agreed that he should risk assess if this was safe for the Claimant after the Claimant’s parents had been advised of change in current plans.”

These minutes very much reflect the present stance of the Council and reflect a further step following the meeting in January. However they do not provide the reasons for what was described in that minute as the consensus view.

Counsel for the Council remarked that it was unfortunate that the report referred to from Cedar House was sought but not received until after the Claimant had made his present application. I agree and would add that it was also unfortunate that the Council did not bring the matter back to court as envisaged in that minute and later correspondence from the Council.

I also comment that it seems to me that this minute correctly identifies that further information should be obtained from Cedar House to clarify and explain the position why what had been agreed and put in the September 2002 Consent Order was no longer appropriate. It is axiomatic that such information should be clear. In my view the information obtained by the Council from Cedar House following the commencement of the Claimant’s application (and the Council’s application for discharge) does not answer, or clearly answer, the issues identified in this minute.

Further and importantly this minute was not agreed by Dr Karunapala, the Claimant’s RMO.

On 15 May 2003 he wrote to the Integrated Learning Disability Services at the Council in the following terms:

“The Claimant’s parents have informed me that they have had a meeting recently in Brighton and were told that ‘Dr Karunapala expressed the opinion that the Claimant should be under s. 3 Mental Health Act 1983 indefinitely’ and therefore you are unable to provide a placement in Brighton as requested by the High Court.

I categorically protest for giving the incorrect information to the parents.

On 16 April 2003 at 2pm Mr Neil Sinclair and Mr Peter Crascell represented Care Principles Ltd [Cedar House].

I expressed my opinion as follows:

The Claimant should be under s. 3 to gain legal framework for the carers because of his behaviour, lack of insight and inability to consent.

Mr Buchanan visited Cedar House on several occasions and had discussions with Geoff Jones, social worker, Dell Warden, nursing staff and myself. Mr Buchanan showed us the proposed plan of the placement and said that the Claimant would get 24 hours care and that he would have separate access to the staff. He also said that Geoff Jones was of the opinion that the Claimant could be managed in the proposed placement provided that adequate care is provided.

At this meeting I said that I would be able to give S 17 leave so that we could test him out away from the secure environment because:

•

I had already given 5 days leave at home for Christmas. The parents were able to manage the Claimant satisfactorily. Provided more support is given it is an opportunity to test him in the community. I also said that we could not keep this young man for ever.

Mr Neil Sinclair, consultant clinical psychologist, expressed his own opinion.

The Chairperson said that she would write a letter regarding the formal opinion.

Please note that:

a)

We never received a letter as expressed by the chairperson

b)

We never received the minutes of the meeting.

The Claimant’s parents are in a severe state of distress. I would like to ask you to clarify the matter with them as early as possible”

This letter expresses fairly trenchant disagreement by Dr Karunapala with the minutes of the meeting of 16 April 2003.

On 19 May 2003 the Council wrote to the Claimant’s parents stating as follows:

“In relation to the Claimant’s current needs it is the understanding of the Brighton & Hove Integrated Learning Disability Service that the service being planned for Beaconsfield Villas would not be sufficient to meet those needs. Therefore the Authority will be returning the agreement reached in the judicial review proceedings to court for further consideration.”

On 6 June 2003 the Council through Natasha Watson of its legal department wrote to the solicitors then acting for the Claimant (who are not the solicitors who acted at the time of the September 2002 Consent Order) enclosing the minutes of the meeting held on 16 April 2003, pointing out correctly that they were not yet agreed. This letter was copied to the solicitors who had acted for the Claimant at the time the September 2002 Consent Order was entered into. This letter does not refer to the letter of 15 May 2003 written by Dr Karunapala to the Integrated Learning Disability Services but does say by reference to the minutes (acknowledged not to be agreed) as follows:

“You will see that during that meeting there was a consensus that [the Claimant] would continue to need physical restraint and intravenous medication in the foreseeable future, and that this could only be given to him lawfully if he remained under section. Given his lack of capacity to consent. The authority is therefore very concerned as to whether or not the service being developed at Beaconsfield Villas is at all safe or appropriate for the Claimant. With this in mind I have written to the clinical team at Cedar House, requesting them to prepare a report on the care package they believe will meet your client’s needs. It may well be that in the light of that report the authority will wish to apply to the High Court to discharge the consent order made last year. For the sake of transparency we, therefore, invite you to consider whether or not you wish to ask the clinical team to consider any additional matters to those outlined in the enclosed letter of instruction.”

As I have already pointed out no such application was made until after the adjourned hearing in May 2004 and even then it was made late.

Also on 6 June 2003 Natasha Watson as she says in her witness statement dated 15 July 2004 (paragraph 10) wrote to Cedar House enclosing a letter of instruction and the minutes of the April meeting. In her witness statement Natasha Watson states:

“At no stage have those minutes ever been challenged ”

That statement is wrong. First Dr Karunapala had challenged the accuracy of the minutes and his letter of 15 May 2003 is included in the bundle of correspondence put before the court in May 2004. Also it is hard to understand why it could be said on behalf of the Council after the May hearing that these minutes had not been challenged and thus inferentially had been accepted.

I do not suggest that this witness statement was deliberately misleading in this respect but it seems to me that the assertion therein may in part explain the approach of the Council which seems to have been founded on the view that there was a consensus of medical opinion from April 2003. This may also explain the passages in the recitals to the December 2003 order that I have highlighted earlier.

On 17 October 2003 the Council received a letter from Cedar House which says that they are providing the Council with the opinions of the Cedar House team with regard to the three questions that had arisen during e-mail correspondence during July 2003. The letter identifies the team. It includes Dr Karunapala.

I was not taken to this letter by any of the parties. It was not submitted on behalf of the Council that it provided support for what was described as the “consensus view” in the letter of 6 June 2003. I can see that aspects of that letter could be prayed in aid in support of that view but it seems to me that other parts of it can be prayed in aid by the Claimant and his parents in support of their arguments that the “consensus view” is not correct.

I also note that in a report for an external CPA review meeting held on 28 October 2003 under the heading ‘Legal’ and sub heading “hospital managers’ meeting” the following is recorded:

“Renewal hearing 11.7.03 upheld detention. I note the Hospital Managers’ written comment ‘ Leave under S 17 should be actively investigated with the special placement in Brighton as previously promised by Brighton NHS.”

The record of the meeting held on 28 October 2003 contains the following under the heading ‘Discharge Plans’:

“Natasha Watson asked ‘Are Brighton and Hove building the right project i.e. Beaconsfield Villas to suit the [Claimant’s] needs. She noted the project was drawn up on the basis of the [Claimant] no longer being detained under the Mental Health Act in the community she said it could not accommodate him on a permanent section. Dr Karunapala suggested a minimum of three months trial leave under s. 17 Mental Health Act 1983 before the [Claimant] to Beaconsfield Villas. Dr Sanders said a contingency plan would need to be in place in the event of crisis/placement breakdown at Beaconsfield Villas – at present the only option would be at an acute adult general psychiatric bed. Gino Penswick said National Care Standards had told him that for a community placement would have to be registered to have residence under the Mental Health Act (sic) they needed three or more residents living together. Peter Crascall feedback however that he was aware of nursing / residential home with fewer residents with dual registration. Dr Sanders expressed concern that the issue of how to manage the [Claimant’s] violence in a community placement had not been addressed……..

The Beaconsfield Villas project in Brighton is going ahead and at the point of making major changes to the present building. Brighton and Hove team’s plan was for the [Claimant] to have his own flat and a dedicated staff team at Beaconsfield Villas, with the staff team rotating with other staff teams. Natasha Watson explained that a new firm of solicitors are now representing the Official Solicitor and the latter has decided that the Brighton and Hove project needs to be reviewed by the court and a hearing is set for the High Court in London on 5 November 2003. The original plan for the [Claimant] not to be detained under the Mental Health Act 1983 at Beaconsfield Villas was a response to Professor O’Brien’s report of September 2001, which stated that the [Claimant] would be off section in six months.

Professor O'Brien prepared a further report to address a number of questions set out in the draft consent order signed on 7 November and sealed in December 2003. His report is dated 22 December 2003. It contains the following:

“Overview of my aim in this report.

------- One key facet of my report concerns the appropriateness of the Claimant’s transfer to Beaconsfield Villas and the basis on which this might be done. Alongside that matter I comment in detail on [the Claimant’s] current situation at Cedar House.

My interview with Mr Peter Crascall, primary nurse to the Claimant ………

….. The Claimant is never on any day capable of making choices for himself responsibly and reliably but has to be directed. Further more physical intervention is required generally on a weekly basis and indeed has been required in the past. In this respect, therefore, the current care requirements are in keeping with those which form the basis of the social care plan of December 2001 as cited above.

Please consider whether or not, and if so, on what timescale and in what circumstances the Claimant might reasonably be expected to be discharged from section.

This is not an issue. For the foreseeable future the Claimant will require treatment under the Mental Health Act under section 3. (my emphasis).

Please consider the extent to which the Claimant’s placement at Cedar House has satisfied and continues to satisfy his care needs and whether an alternative will be more likely to satisfy those needs both on a short term and long term basis.

The Claimant’s placement at Cedar House is appropriate to his needs…. We do note that, as Cedar House staff know, the Claimant does not require such a locked/secure facility as Cedar House. It is for this reason, an alternative would indeed be more likely to satisfy his needs both on a short term and a long-term basis.

……he does not need to be locked away in a unit which is entirely separate from the community. An alternative arrangement, an unlocked unit with close supervision would be more likely to satisfy his needs both in the short term and long term basis.

Please consider whether or not the Claimant’s current placement at Cedar House may have exacerbated the symptoms of his mental disorder although otherwise have caused a deterioration in or failure to ameliorate his mental state and/ or may do so in the future and if so when.

In my opinion Cedar House is the best placement the Claimant has had. I mean by this that all the evidence which I have reviewed indicates that the Claimant initially progressed better at Cedar House than in any other placement. Since I last saw him, he has neither progressed further, nor regressed. However, as I and others have noted, he does not require the degree of security which applies at Cedar House. Essentially, in my view Cedar House is not ideal. It is not in his best interests. He would progress better in a less structured environment. Alternative, less structured care is required, within the context of the Mental Health Act.

Please consider the extent to which the Claimant’s care needs differ from those indicated by yourself in your report previously filed in these proceedings.

As I have already described the Claimant’s care needs do not differ from those detailed by myself in previous reports substantially in any respect.”

This report ends with a paragraph indicating that the report is only a draft because Professor O'Brien had not been given the opportunity to see the proposals of the Council and the B & H Care Trust in relation to the Claimant’s future care. Professor O'Brien indicated that the report would need to be amended to include his comments on the proposals when they were received.

Mr Sinclair also prepared a further report in draft. In response to the questions ‘Please consider the extent to which the Claimant’s care needs differ from those indicated by yourself in your reports previously filed in these proceedings’ he answers as follows:

“I do not consider that the subject’s care needs have changed since my initial involvement in this case. Fortunately, not only has he not regressed a degree of stability has been achieved that is obviously due to the skilled staff input to this case both in managing the Claimant and in managing his family.

It was never envisaged that the subject would require anything less than a resource that could provide a low degree of physical security and a high degree of specialist staff input supplied through health and social care joint funding. The use of medication and restraint/holding techniques would and could only be provided under the proper registration criteria. I cannot discern any therapeutic basis or reasoning relating to the subject and/or his mental state to support Brighton and Hove’s failure to comply with the terms of the order in setting up the new placement because everything that is known about the patient now has been known for a very long time.

I am of the professional opinion within the remit of my own expertise, that from time to time the subject will no doubt require the use of mental health powers in appropriately assessed circumstances, there is no evidence to suggest that detention should be in perpetuity.”

In February 2004 Dr Sanders wrote to the legal department of the Council in (amongst others) the following terms:

“Looking at the draft care plan, you talk about s. 117 team duty and using extended s. 17 leave. It is not clear whether it would be proposed that the claimant would remain under S 3 or not. I personally believe that at the current time the claimant needs to be under s. 3. Section 17 leave can be used for a short time but cannot be used for a long period of months or years. Section 17 is used for discharge planning when it is anticipated that the individual is coming off the section.

I think you will have problems if you try and put the [Claimant] on s. 17 leave for any length of time. Again I do not think you should tie yourself down to a specific number. At the current time he needs to be on s. 3.

I personally believe that at the current time the [Claimant] needs to be under a section of the Mental Health Act 1983 and this should be in a setting such as Cedar House. No other placements have worked for him. (my emphasis)

I am concerned again that there seems to be urgency and a very short deadline for comments about this plan whereas the complexities of this case mean that things should be carefully considered. Perhaps, if rather than quick knee-jerk reactions, we had taken more time to consider case planning in the past we would not be in such a mess now. I also think you should be involving Suzanne Conboy-Hill in care planning for the claimant. I wonder why a lawyer is doing care planning rather than the clinical team when this about the claimant’s mental health. It is not an appropriate task for a non clinician.”

In this letter Dr Sanders does not refer to any specific change in the Claimant’s condition or behaviour. I agree with points she makes that proper consideration was, or may, not have been given to the Claimant’s case.

Dr Campbell wrote a report dated 16 March 2004. He pointed out that he had had no previous knowledge of the Claimant and that the issues to be addressed by him were the Claimant’s present medical condition, his current care needs and advice on the level of support the Claimant will require to meet his care needs in the immediate future and in the long term future. In setting out the history (which Dr Campbell does very shortly) he does not refer to the Claimant’s behaviour becoming more aggressive after he was detained at Cedar House. Under the heading ‘The Claimant’s Current care needs’ Dr Campbell says this:

“In view of his mental disorder the [Claimant] is in need of a stable and consistent living environment where he can receive support for his activities of daily living from appropriately trained staff.

Given his moderately severe mental handicap, the [Claimant] would lack the capacity to make decisions in relation to health, welfare and financial matters. Such decisions would therefore need to be taken by others on his behalf. He would also need to be provided with the basic necessities of life, particularly accommodation, food, clothing and warmth.

Given his autism, the [Claimant] would require additional support and intervention at times when he is behaviourally unsettled. In particular, intervention would be required to limit his destructiveness and aggression so as to minimise the damage to property, the risk of injury to himself and others and (potentially) to protect members of the general public. However, when the [Claimant] is not unsettled it would be important from a humanitarian reason for him to be enabled to maintain a community presence, engage in an array of day activities and maintain contact with his parents.

Under the heading ‘Minimum support requirements Dr Campbell says this:

The [Claimant] is in need of a stable and robust living environment which could continue if necessary for the remainder of his life. On account of the [Claimant’s] autism, stable and predictable routines would be important. It would be anticipated that the [Claimant] would present frequent challenges to the staff so skilled pro-active intervention would be important. Adequate staff numbers and adequate staff expertise would therefore be necessary, particularly staff with expertise in the management of autism. To ensure stability, the service would need to be able to provide for the [Claimant] during his unsettled periods. The structure should therefore be robust and able to resist destructive behaviour. To contain the [Claimant], the accommodation would need to be of solid construction and have lockable doors and windows with shatter-proof glass Staff would need to be trained in appropriate restraint techniques. Medication would need to be available for use on an emergency basis by either the oral or parenteral routes. Any restraint or medication would be administered on the basis of perceived necessity and without the [Claimant’s] consent.

When the [Claimant] was in a settled period, the staff would need the capacity to accompany him to relevant community activities or visits to his parents. The staff would need to have the capacity to intervene on an emergency basis should the necessity arise. This would include approved forms of restraint and the administration of emergency medication even during the course of community activities. There should also be a provision to allow the Claimant’s safe and rapid return to his supported accommodation.

Within a list of the essential minimal ingredients of the [Claimant’s] care plan Dr Campbell includes the following:

The facility to administer medication without the [Claimant’s] consent to include both regular medication and as required medication through both the oral and parenteral routes.

The facility to provide the [Claimant] safe restraint and containment during his unsettled periods.

A facility for immediately available staff to take decisions regarding emergency intervention by way of restraint, containment or emergency medication.

Dr Campbell goes on to assert:

The key limiting factors in respect of service provision would be the need to provide the [Claimant] with restraint and containment as well as emergency medication (both orally and parenterally) at times of necessity. It might be argued that these interventions arise from the [Claimant’s] established care needs and that therefore any action in tort for trespass could be defended by invoking the common law doctrines of emergency or necessity. However these common law defences would be considerably weakened by the existence of statutory provisions within the Mental Health Act 1983 (including particularly sections 3, 58, 62 and 63). Consequently, any service which could realistically provide for the [Claimant’s] long term care needs would need to have the capacity to accept persons liable for detention in hospital for treatment (i.e. either an NHS hospital or a registered mental nursing home).

This last passage in Dr Campbell’ report addresses some legal issues and it seems that these issues inform his conclusion that the Claimant should be placed and detained under the 1983 Act in a hospital.

Documents contained in the records relating to a s. 117 / external CPA meeting on 27 April 2004 contain the following:

The citations in the last paragraph indicate, as is asserted on his behalf, that since the time the September 2002 Consent Order was made that if anything the Claimant’s condition and behaviour has improved. It also has to be remembered that part of the background to the making of that order was the concern that the Claimant would be discharged, and thus the view of at least some of the relevant people that he had improved since admission in accordance with the prognosis at the end of 2001.

Following the meeting on 27 April 2004 the solicitor for the Claimant, who had attended that meeting, wrote to Dr Karunapala on 28 April 2004. He replied by a letter dated 29 April 2004, saying (amongst other things) as follows:

The letter from Dr Karunapala dated 29 April 2004 clarified his perspective on events at the s. 117 / CPA meeting which had taken place on 27 April 2004. The records of that meeting contain the following under the heading ‘Discharge plans’:

“Dr Karunapala said he would not discharge the Claimant from detention under the Mental Health Act 1983 because of his vulnerability.

Dr Karunapala repeated his recommendation for the Claimant to be tested out in the community under s. 17 leave: Cedar House could assist if there was a crisis and provide outreach work. Cedar House multi disciplinary team continued to support their earlier community placement specification. Individual support guidelines currently in use at Cedar House could provide a framework – be adapted to a smaller community environment.

The meeting noted that due to changes in the law new care homes can no longer be dual registered.

Julia Cornes [solicitor acting for the Claimant] fed back that Professor O'Brien’s view had not changed with regard to the Claimant’s future care i.e. that a special unit in the community be developed for him. In contrast a report commissioned for Brighton & Hove by Dr Campbell recommends a long-term medium secure service for the Claimant. A ‘phone conference is planned between Dr Campbell, Dr Sanders and Professor O'Brien to discuss this further.”

There is a mismatch between the views of Dr Karunapala as so recorded and in his letter of 29 April 2004 in response to questions raised following this meeting by the solicitor for the Claimant (who had attended the meeting).

On 29 April 2004 there was a telephone conference between Dr Campbell, Dr Sanders and Professor O'Brien. This conference lasted half an hour. At the beginning of it Dr Sanders (to my mind understandably) recorded that she was concerned about deadlines. She pointed out that the Claimant has a chronic condition that has been known about for years and she was concerned that they had to make snap decisions. This echoes her earlier concerns in February and it will be appreciated that this meeting was taking place very shortly before the date set of the hearing before me in May.

Dr Karunapala did not take part in this telephone conference. It was recorded in the agenda for this discussion that he was not available to participate but had been sent a copy of the same questions and that his responses would be forwarded to all the experts for comment and discussion. That was clearly a sensible proposal but so far as I am aware it was not carried out in that his responses (if any) have not been circulated and commented on. To my mind this was an unfortunate omission.

The result of the meeting between the three psychiatrists are contained in a schedule of areas of agreement and disagreement which, helpfully, set out the questions posed to the psychiatrists and their answers.

The first question put to the psychiatrists was: “What is the Claimant’s diagnosis and current medical condition?’ The answer given was a combination of autism of early child origin, moderate to severe learning disability and possible epilepsy and that there is a very long history of aggressive behaviour.

I pause to comment that I am unclear whether in this answer what is being referred to is the aggressive behaviour during the Claimant’s life and thus before and after he was admitted to Cedar House and detained there under the Mental Health Act 1983 or some other period of his life. It seems to me that it is the former. In this context, as citations I have made earlier indicate, his aggressive behaviour has decreased of late. Certainly it appears that this answer does not relate to any significant change in the Claimant’s aggressive behaviour between the time leading up to and the making of the September 2002 Consent Order and thereafter.

The third question was “Does the Claimant need to be in a hospital environment in the short medium or long term?” The answer includes the following:

“All agree that the Claimant needs to be in a facility registered under the Mental Health Act 1983.

Dr Campbell and Dr Sanders agree that the Claimant should be in a ‘hospital’ environment in the short medium and long term.

Professor O'Brien agrees that for the foreseeable future the Claimant should be in a facility which would be able to deal with the Claimant under the terms of the Mental Health Act 1983 (i.e. a registered nursing home). This is what Professor O'Brien meant by the description ‘community placement’ in both in his previous recommendations to the court in 2001 and now.”

I pause to comment that this recorded position of Professor O'Brien, and indeed the passage in his report dated 22 December 2003 that I have highlighted, have caused me, and as I understand it, all counsel in the case some difficulty when they are read with his earlier reports as a whole.

Further questions and answers are in the following terms:

“Would you recommend the Claimant to go on extended leave under s. 17 of the Mental Health Act 1983 at the current time and what is the medical basis for your opinion?’ The answer was:

The Claimant is not fit for discharge from section, needs to be somewhere registered under the Mental Health Act 1983, and is not fit to go on extended leave from detention.

“Has the current provision for the Claimant produced any deterioration in his condition or any improvements?’” The answer was:

It is the very best place he has had, and he has done very well there. There is no evidence of deterioration. In terms of actual level of disturbed behaviour he is more settled……… ”

“Is the Claimant suitable for placement in residential accommodation based within the community?” The answer was:

The Claimant cannot be managed in the community without the powers available under the Mental Health Act 1983 as above. Placing him in a non Mental Health Act 1983 setting would be unsettling doomed to failure and highly undesirable. His parents will struggle to come to terms with this.

His unit could be more community like, but by this it is not meant a little flat but a medium secure lockable unit.

“To what extent was the care plan agreed in the order dated 20 September 2002 suitable for the Claimant’s needs?’” The answer was:

All agreed it was not suitable.

Professor O'Brien does not accept that the plan agreed in the order was ever his recommended plan. At that time, and now, by ‘community placement’ he was referring to a facility which would be able to deal with the Claimant under the terms of the Mental Health Act 1983.

I pause to comment that I do not find it easy this to square this recorded answer of Professor O'Brien’s with his earlier reports or indeed with the fact that, as I understand it, he approved the care plan and project plan annexed to the September 2002 Consent Order. It may be that he would be able to explain how they “match up”. I also comment that the views recorded in this schedule seem to indicate that they are based on a difference of opinion as to the suitability of the September 2002 Consent Order when it was made, and now, and thus not on a change in the Claimant’s condition or a failure by him to improve.

On 30 April 2004 Professor O'Brien wrote to the solicitors acting for the Claimant in, amongst other, the following terms:

“At the teleconference we all agreed that the [Claimant] requires to be detained under the Mental Health Act 1983 for the foreseeable future, and that he requires to be living in a specialist autism/specific situation with appropriate levels of staffing and that this could be done in a more community like setting than his current secure placement.

However it occurred to me that throughout my careful emphasising that he does not have to be in hospital, there appears to have (sic) some confusion regarding what is meant by ‘hospital’.

For this reason I went back over the papers in detail. I note that in my original report dated 7 September 2001 I stated (page 8) it was appropriate that he be detained under the Mental Health Act 1983.

In that letter I also said that ‘a period of 6 to 9 months is an appropriate time for the [Claimant] to stabilise before being transferred back to the community’.

It has been proposed that I also said in this letter that his detention under the Mental Health Act 1983 would, from that time, only be required for 6 months. At no time in my report did I say that. Indeed subsequently on 22 December 2003 I stated (pages 9 and 10) ‘for the foreseeable future the [Claimant] will require treatment under the Mental Health Act 1983 under s. 3’.

In my view, the care plan which was first proposed by the integrated learning disability service challenging behaviour team, 9 August 2002, has been working towards the [Claimant’s] discharge, and that Beaconsfield Villas was being arranged as the venue which would meet the community placement requirements I had described in September 2001. At that time, and now, by ‘community placement’ I was referring to a facility which would be able to deal with the [Claimant] under the terms of the Mental Health Act 1983.

I feel it is important for me to register these comments now, because in the circumstances – and in particular whereby it was erroneously stated at page 10 of the CPA meeting of 28 October 2003 that ‘the original plan for [the Claimant] not to be detained under the Mental Health Act 1983 at Beaconsfield Villas was the response from Professor O'Brien’s report of September 2001, which stated that [the Claimant] ‘would be on a section for 6 months’ – it seems that there was a misunderstanding here, which may run through this case.

I therefore wish to emphasise that, as I stated in December of last year, the [Claimant] does require detention under the Mental Health Act 1983 for the foreseeable future, and I note that the August 2002 project plan for service provision for the claimant was informed by my recommendations of September 2001.

I would therefore respectfully wish that the Beaconsfield Villas project be implemented.”

In this letter Professor O’Brien refers to passages from earlier reports that I have highlighted earlier in this judgment (the report he refers to as dated 7 September 2001 seems to be the same document as the report dated 20 September 2001 I have before me – the internal page references match).

I confess that I find this letter from Professor O’Brien internally inconsistent and difficult to follow. For example I do not understand the basis for the last sentence in the light of the earlier parts of his letter. Further he does not explain (i) what he means by “hospital” or identify the confusion he is referring to as to what is meant by a “hospital”, and (ii) how he thinks the Claimant would be dealt with under the Mental Health Act if placed at Beaconsfield Villas. I also find it difficult to match up with his approval of the care plan and project plan annexed to the September 2002 Consent Order.

Further, as indicated earlier, it seems to me that in the absence of further explanation the passages I have highlighted in his report in September 2001 and his updating report dated 27 July 2002 (when he comments on Dr Baker’s report) when read alone, and in context, support the view (i) that he was then saying that the Claimant would move from detention in hospital to a community setting (and would thus be leaving hospital), and thus (ii) that what he is now saying (and said in his report dated 22 December 2003) represents a change of view or inconsistency.

Mr Sinclair wrote a further letter dated 30 April 2004. In it he says the following:

“I understand a telephone conference of psychiatrists involved in this matter has recently taken place, or will take place imminently. I further understand that this conference will exclude any other disciplines and will not include anyone who has had regular contact with the subject or his family. This format of exclusion is in complete contradiction of the philosophy of multi disciplinary work, which in this subject’s case has achieved so much in his current environment. Therefore the exclusive nature of this format, will, I would respectfully suggest have limited relevance in formulating long term service provision for the claimant.

I have read all the recent documentation as listed above and re read relevant historical information and I have no reason to adjust the opinion offered in this matter dating back to my original involvement of several years ago.

From all the information available from Cedar House, it is absolutely beyond question that much has been achieved in working with both the patient and the family; however most clinicians are still of the opinion that this remains an inappropriate environment to fully meet his complex needs and I remain of the professional opinion that these needs can be met in a unit with the support detailed in earlier submissions.

I understand from my last contact with Cedar House that a project such as Beaconsfield Villas would be a very suitable resource for long term care provision and if so much has been achieved in his current environment it should be possible to make further therapeutic gains in a more suitable environment.

My professional opinion is that to a certain extent ‘the plot has been lost’ in that the inadequacies of local provision has been swamped by argument of his detained status under the Mental Health Act 1983, the care plans referred to in my earlier reports, and my own assessments never envisaged the subject being cared for in an environment that did not have a low level of security and the capacity to manage detained, as well as informal, patients. As far as I am aware this remains the view of the service currently treating him. I would not dispute that from time to time the subject might need to be detained, but the hope would be that he could be in a placement that could manage these adjustments.

Time after time in my career I am involved in cases such as the claimant where the subjects end up being catapulted into a forensic trajectory and into medium secure provision because of the inadequacy of local provision and this is particularly so in the case of developmental disorders and this situation has been recognised by the Government, as the court will no doubt be aware, with a national strategy being developed.

As far as I am aware the orders made previously by the court have not been complied with, and it is to be hoped that this matter can be settled and enforced at the forthcoming hearing.

Once a patient enters the forensic system, especially in learning disability, it is my professional opinion formed over a long career in these issues that reaching escape velocity becomes very difficult for the subjects who become trapped in a fixed orbit and become more and more institutionalised. It is precisely to avoid this that the parents have fought such a persistent and enduring campaign and are apparently supported in their wish for a local resource along the lines of Beaconsfield Villas by the views of the clinical team at Cedar House.”

As can be seen from the above there was a flurry of activity at the end of April 2004 shortly before the first hearing of the judicial review in May 2004.

As was at least in part recognised at the hearing in May, the result of this activity is that there is considerable lack of clarity and in particular (i) the recorded views of Dr Karunapala (and Mr Sinclair) are at odds with those recorded in the record of the meeting held on 29 April 2004 and (ii) there is some confusion in respect of the views of Professor O’Brien.

It also seems that the views of Dr Campbell and Dr Sanders are not based on a lack of improvement or a deterioration in the Claimant’s condition since September 2002 but rather on their view that what was recommended and agreed then was not appropriate.

Further as I understand Dr Campbell’s report and the recorded agreement of the three psychiatrists at the meeting on 29 April 2004 they are referring to the Claimant being detained in a hospital so as to facilitate or ensure his treatment pursuant to detention under the Mental Health Act 1983 and their view is at least to some extent based on legal points relating to his treatment.

It will be remembered that a main reason for the adjournment was to enable steps to be taken to clarify the position and in particular to enable the Council to do this.

In a medical report prepared (as I understand it) for a hospital managers’ meeting signed by Dr Karunapala on 2 July 2004, Dr Karunapala says this:

“Mr Buchanan, care manager for the local learning disability team visited Cedar House and met with all the disciplines. He said that the local authority has a plan to provide a flat in a group home for the claimant and that there will be 24-hour supervision.

There was a professionals’ meeting at Brighton to discuss this issue. I expressed my view that I am happy to give s. 17 leave for 3 months to test the Claimant in the community; this option will also help the parents and above all the claimant…..

There has been an independent assessment done by an independent psychiatrist. We all feel that for the claimant’s best interest he should be cared for under s. 3 of the Mental Health Act 1983 but in an appropriate placement. At present Cedar House is not appropriate.”

That report ends with passages under the heading ‘Grounds for detention’ which echo passages under the same heading in earlier reports from Dr Karunapala. As I have said earlier it seems to me that these passages have to be read in the context that Cedar House have agreed to keep the Claimant until the proposed placement at Beaconsfield Villas is ready for him.

Towards the end of July I refused to make a directions order by consent because it seemed to me that the parties were not addressing the preparation for the adjourned hearing in an appropriate manner and with appropriate urgency. The parties attended on 29 July 2004 and on that occasion by consent I made the order I have referred to earlier.

In a letter dated 2 August 2004 to the solicitors for the B & H Care Trust Dr Campbell says (amongst other things) the following:

“I consider that it would only be appropriate for the Claimant to be offered s. 17 leave to Beaconsfield Villas if it were part of a planned process culminating in his eventual transfer to that address. However, I note that Beaconsfield Villas is to be registered as a care home rather that a mental nursing home, and I therefore consider that it would not provide an appropriate long-term environment for the claimant. I would therefore regard any s. 17 leave to Beaconsfield Villas as serving no useful purpose.

If Beaconsfield Villas were to be registered for the purposes of s. 34 of Mental Health Act 1983 and if it were to provide all the relevant facilities of a psychiatric unit, then it may well become appropriate for the claimant to be transferred there. However I understand that there is no current intention that Beaconsfield Villas should be registered for the purposes of s. 34 of Mental Health Act 1983. If Beaconsfield Villas were to be so registered and to provide for the Claimant’s needs, it would need……….. to have 24 hour nursing staff cover, staff trained in appropriate restraint techniques, staff able to administer medication on an emergency basis by either the oral or the parenteral routes and medical staff available either on site or readily available to attend the site.”

On 3 August 2004 Dr Campbell wrote a further letter to the solicitors for the B & H Care Trust. In it he confirms the accuracy of the schedule of agreement and disagreement relating to the telephone conversation between the three psychiatrists. He also says that having read the statement of Mr John Symonds like Mr Symonds he thinks that the development at Beaconsfield Villas would not be suitable to meet the Claimant’s identified care needs for amongst the following reasons:

“The staff would not have the capacity to administer medication without explicit consent (to include both regular medication and as required medication through either the oral or parenteral routes).

He ends his letter by saying that for the time being he considers that the Claimant’s care needs could only realistically be met by continuing residence within an at least minimally secure psychiatric unit, or a similar registered mental nursing home (as at present).

In a letter dated 3 August 2004 Professor O'Brien answered the question referred to in my order dated 29 July 2004: “Whether or not it would be appropriate, and if not, why not, for the Claimant to be given s. 17 leave to Beaconsfield Villas?” in the following terms:

“In principle this might be possible, but only if the services there are geared to deal with someone detained (my emphasis) under the Mental Health Act 1983, and who will be so detained for the foreseeable future.”

As I understand it these responses were to questions raised in the order of 29 July 2004. But as I have said the steps taken in paragraphs 3 and 4 of that order which involved the participation of the Claimant’s RMO and thus the opposition to what the Council assert to be the consensus view did not take place. One of the problems was that Dr Karunapala had moved and was no longer the Claimant’s RMO and his RMO was a locum. But so far as I am aware no steps were taken to seek further information or clarification from Dr Karunapala.

In my view apart from the introduction of the statement of Mr Symonds the evidence did not make the position any clearer than it was in May.

Nonetheless the Council pursued its main case for discharge on the basis of the consensus view in the record of the telephone discussion on 29 April 2004 in the knowledge that (i) it did not accord with Dr Karunapala’s position in his letter of 28 April 2004 (and elsewhere), or that of Mr Sinclair, (ii) there was some confusion over the position of Professor O’Brien, (iii) the Claimant’s RMO was a locum who was not in a position to give an informed view on the Claimant’s placement at Beaconsfield Villas when it was completed, and (iv) completion of the project was not expected until early 2005.

Further the Council advanced the argument that there was an understanding in September 2002 that the Claimant’s condition would improve leading to discharge in 6 to 9 months and that this had not occurred. But this argument was not supported by a statement, and I have found that it is not made out by reference to the documents relied on by counsel for the Council to support it. Further it seems to me that it is not supported by the consensus view relied on by the Council. Indeed it seems that the view of Dr Campbell and Dr Sanders (with which Professor O’Brien has indicated his agreement) is based on an opinion that the project and placement envisaged and agreed in September 2002 was not appropriate both then or now.

In my judgment the Council have failed to establish a case that the September 2002 Consent Order should be discharged. As I have said it was this application that became the lead application and in my judgment the Council have failed to support it by reasons based on sufficiently clear evidence. To my mind at the hearing in September 2004, the Council should not have proceeded with its application for discharge and should have acknowledged and accepted that further information about, and further consideration of, relevant issues was required before the application could be dealt with.

Although the Claimant has shown that further information was required when he issued his application he has not demonstrated that the present position is one in which it would not be appropriate for the September 2002 Consent Order to be discharged or varied. As to that I accept that the onus is not on the Claimant. But it follows that he has not shown that the September 2002 Consent Order should remain in place and be enforced.

I add that if Professor O’Brien is taken to be expressing a view that a change in circumstances (or a change of opinion by him) mean that the September 2002 Consent Order is no longer appropriate the divergence between that view (and the view of Doctors Campbell and Sanders) and the views of Dr Karunapala and Mr Sinclair mean that the Council have not established its case with sufficient evidence and clarity.

I accept and acknowledge that:

In my judgment it follows that I should adjourn both applications and make further directions rather than make final orders on one of both of them.

I reject the alternative suggestion of the Council that the order should include provisions that (subject to liberty to apply) provide in defined circumstances for the discharge of the September 2002 Consent Order. In my judgment the outstanding issues do not warrant such a course and it would not properly recognise the possibility of the September 2002 Consent Order being varied rather than discharged.

I will hear the parties on the directions I should make in the light of their consideration of this judgment and general consideration of the issues.

In the course of this judgment I have raised a number of points. It seems to me that at least the following needs to be done:

The views referred to above should be sought through focused questions and appropriate meetings to narrow points of difference and to clarify the reasoning of the relevant persons.

The following questions should be considered:

In considering those questions in my view the following points should be taken into account: