Thursday, 26 June 2014

Story One Hundred - Verdict

Two weeks later, I was back on the front row of the benches to hear Justice Peter Jackson deliver his judgement. Once again, I found it a very emotional moment. Early on in his judgement he mentioned Magna Carta and a huge tsunami welled up as my 800 year old history tumbled out. It is very trippy to travel 800 years in the space of two minutes.

I'm handing this post over to Justice Jackson as (IMO) he got the judgement spot on. He found that Hillingdon had acted unlawfully and deprived Steven of his Article 5 & 8 Human Rights and that all four DoLs were illegal.

Here are some of the highlights:
  1. In this case a local authority accepted a young man with disabilities into respite care for a few days at the request of his father and then kept him there for a year. The question is whether this was lawful. 
  1. Steven Neary is 21. He has childhood autism and a severe learning disability. He is a tall, heavily-built young man who requires supervision and support at all times. He needs things to be predictable and becomes highly anxious if he is not carefully prepared for change of any kind. His life is structured around his home, with reassuring daily routines and rituals and a weekly diary of outings to swimming pools, the gym or a day centre.
  1. I want to thank Mr Neary for the quiet way in which he has presented his case. Several times, both during his evidence and when acting as advocate, he had the opportunity to vent grievances or launch an attack on Hillingdon in the presence of the media, but he did not do so. I am sure that this is because his focus has been on Steven from beginning to end. Mr Mark Neary is an unusual man and he can be proud of the way in which he has stood up for his son's interests.
  2. For the reasons set out later on, I do not accept Hillingdon's arguments. I find that Steven was deprived of liberty throughout the year. I reject its case that Mr Neary consented. The authorisations relied upon were flawed, and even if they had been valid, they would not in themselves have amounted to lawful authority for keeping Steven at the support unit

  3. It follows that Hillingdon had no lawful basis for keeping Steven away from his home between 5 January 2010 and 23 December 2010. The fact that it believed that it was acting for the best during that year is neither here nor there. It acted as if it had the right to make decisions about Steven, and by a combination of turning a deaf ear and force majeure, it tried to wear down Mr Neary's resistance, stretching its relationship with him almost to breaking point. It relied upon him coming to see things its way, even though, as events have proved, he was right and it was wrong. In the meantime, it failed to activate the statutory safeguards that exist to prevent situations like this arising.

  4. Fortunately, the evidence establishes that Steven has suffered no significant or long-term harm as a result of these events, although they were distressing for him and for his father. However, things might easily have turned out differently. By the summer of 2010, Hillingdon's plan was to send Steven to a long-term placement somewhere outside London, which could have caused irretrievable damage to his family ties, and particularly his very close relationship with his father. In the case of at least one of the facilities, it was a precondition that Steven was placed under a compulsory Mental Health Act section. It is very troubling to reflect that this approach might actually have succeeded, with a lesser parent than Mr Neary giving up in the face of such official determination. Had that happened, Steven would have faced a life in public care that he did not want and does not need.
  1. I declare that Hillingdon has breached the rights of Steven Neary in the following respects:

  2. (1) By keeping Steven Neary away from his home between 5 January 2010 and 23 December 2010, Hillingdon unlawfully breached his right to respect for his family life, contrary to Article 8 ECHR.

    (2) By keeping Steven Neary at the support unit between 5 January 2010 and 14 April 2010, Hillingdon unlawfully deprived him of his liberty, contrary to Article 5(1) ECHR.

    (3) By keeping Steven Neary at the support unit between 15 April 2010 and 23 December 2010, and notwithstanding the urgent DOL authorisation granted by Hillingdon as managing authority and the three standard DOL authorisations granted by Hillingdon as supervisory body, Hillingdon unlawfully deprived him of his liberty, contrary to Article 5 (1) ECHR.

    (4) By failing to

    (i) refer the matter to the Court of Protection sooner than 28 October 2010, and/or
    (ii) appoint an Independent Mental Capacity Advocate for Steven sooner than 29 October 2010, and/or
    (iii) conduct an effective review of the DOL best interests assessments under Part 8 of Schedule A1 of the Mental Capacity Act 2005,
    Hillingdon deprived Steven Neary of his entitlement to take proceedings for a speedy decision by a court on the lawfulness of his detention, contrary to Article 5 (4) ECHR.
    1. By 4 January 2010, there were the first signs of the seeds of later difficulties. A professionals meeting took place between the social worker and staff at the unit and the care workers' manager. A letter from the social worker to the manager refers to a longer stay so that the support unit could get a better understanding of Steven's needs, with a review on 15 January. For some reason, the social worker asked for this plan to be kept confidential. On the same day, the social worker spoke to Mr Neary and outlined plans for a longer stay for Steven than had originally been contemplated.
  1. By this stage, Steven's behaviour was causing grave concern to professionals and to Mr Neary. The latter describes himself as quite overwhelmed by the number of issues arising daily, and feeling very emotional himself. He described in evidence how in the period between January and April he got caught up in lots of micro-events and lost sight of the bigger picture. He accepts that during these weeks he was not actively objecting to Steven being in the support unit, even though he had never agreed to it. By 25 January, a meeting was taking place between Mr Neary and the professionals which focused exclusively on practical day-to-day issues.

  2. I again accept this description of events. Regrettably, once Mr Neary's initial resistance to its plans weakened and fell away, Hillingdon appears to have taken a dim view of his concerns. In an e-mail dated 22 February from the social worker to the support unit, the following appears: "There is always going to be something or other that Mr Neary will bring up and more often than not we are having to appease his needs rather than Steven's, however I want Steven to remain at [the support unit]. I know that it seems that you as a team are constantly being questioned but this will be the case because Mr Neary wants to find issues with the care that other people give Steven. We just need to ensure like we have that we are working together for the best outcome for Steven."

  3. It is now accepted by Hillingdon that Mr Neary had done nothing to deserve this disrespect. The unfortunate tone of the message demonstrates that even at this stage the expression "working together" did not include working together with Steven's father in the true sense and that Hillingdon's thinking had by this stage become adversarial. Worse, the professional view was withheld from Mr Neary, perhaps because revealing it would have provoked a renewed challenge. In the meantime, a "transition plan", ostensibly leading towards a return home, was put into place. It started on 4 March, with four phases: (1) 4/6 weeks of return home on Monday afternoons, (2) 4/6 weeks of return home on Monday and Tuesday afternoons, (3) the above plus Saturday afternoons at home, (4) the above plus a couple of overnight stays before a final return home. It was not until 8 July, by which time the four phases had been successfully accomplished, that Hillingdon told Mr Neary that it was not willing to return Steven to his care.
  1. I have not heard evidence from BIA2, but I have read her assessment. She recommends a three month period for deprivation of liberty. Substantial parts of her short report are cut and pasted from the previous best interests report. She appears to have had cursory contact with Steven on 21 June, the date her report was filed (even though it is unaccountably signed on 18 June). No reference is made to his wishes and feelings. No reference is made to Mr Neary's opposition to the placement. On the contrary, the following appears: "I understand from my conversation with Mr M Neary that he believes the current care plan is positively supporting his son and his transitional programme." No reference is made to the possibility of a placement at home alleviating the need for a deprivation of liberty. The recommendation is made for two conditions to be attached, one of which suggests that the three outstanding risk assessments for Steven's activities should be completed within eight weeks (in the context of a three-month deprivation recommendation). No reference is made to the absence of an IMCA, despite the condition in the previous standard authorisation, nor to the Court of Protection, despite the references in the previous assessment. I regret to say that the report has all the hallmarks of a document completed in a hurry.
  1. Two days later, on 23 June, and after much consultation had taken place in the previous weeks between the social worker, the team leader and the service manager, the unit manager wrote to Mr Neary saying that Hillingdon could not support Steven's holiday on 5 July. The reason given was because the support unit had responsibility under the DOL "order" to assess Steven's access to the community, and because "Whilst we are in the process of transition with Steven to the family home, I feel we will be placing Steven and others at risk ..." Mr Neary was understandably downcast at the lateness of this decision, which he felt would disappoint Steven, who had been looking forward to the holiday. Workers at the support unit did not feel that this was so. Nevertheless, one of the problems for Hillingdon by this stage was that Steven was becoming excited by his visits home, in accordance with the transition plan. At this stage, Hillingdon's position remained unchanged, as reflected in a message from the service manager to colleagues with reference to the holiday and generally: "In the final analysis, Mr N can take the whole matter to the C of P if he feels a DOL should not be in place."
  1. On 7 July, the social worker wrote to the team manager setting out some thoughts ahead of a meeting later that day. The message analysed the position from Hillingdon's point of view and noted some general concerns about Steven's return home. These include: "Currently feel that we are giving mixed messages to Mr Neary about Steven going home ... Legal has said that we have enough for Court of Protection if this is the direction that we are going in, this is the direction we are going in" (sic).
  1. On 16 August, the psychologist reported, highlighting the lack of independent advocacy for Steven or Mr Neary, and commenting that Steven's autistic spectrum disorder had received minimal attention at the support unit. It is deplorable, and a clear sign of the adversarial approach being taken by Hillingdon, that this report was deliberately withheld from Mr Neary for at least six weeks.
  1. The mere fact that a local authority's view of best interests is not subsequently upheld by a court does not of course show that Article 8 rights have been infringed. However, in the present case, a number of features collectively persuade me that Steven's right to respect for his family life was breached.

  2. (1) Hillingdon approached matters without any proper regard to the principle set out in the previous paragraph. Nowhere in their very full records of Steven's year in care is there any mention of the supposition that he should be at home, other things being equal, or the disadvantages to him of living away from his family, still less an attempt to weigh those disadvantages against the supposed advantages of care elsewhere. No acknowledgement ever appears of the unique bond between Steven and his father, or of the priceless importance to a dependent person of the personal element in care by a parent rather than a stranger, however committed. No attempt was made at the outset to carry out a genuinely balanced best interests assessment, nor was one attempted subsequently. The first best interests assessment that deserves the name is the IMCA report of 18 November 2010.

    (2) Hillingdon's approach was calculated to prevent proper scrutiny of the situation it had created. In the weeks after Steven's admission, it successfully overbore Mr Neary's opposition. It did not seriously listen to his objections and the suggestion that it might withdraw its support for Steven at home was always likely to have a chilling effect. Once Mr Neary's resistance was tamed, the question of whether Steven was in the right place did not come under any balanced assessment.

    (3) Between April and July 2010 Hillingdon pursued two inconsistent agendas. The professionals were opposed to Steven returning home, whether or not a final decision had been taken. The agenda so far as Steven and Mr Neary were concerned was a return home under the transition plan. It was only when the transition plan was about to lead to an actual return home that the pursuit of two agendas became unfeasible and the true view of the professionals was disclosed. The records show that the professionals were at times uneasy about this lack of frankness, but it happened nonetheless.

    (4) The use of DOL authorisations from April to December 2010 as a means of controlling Steven's activities was not justified on the information available to Hillingdon. As a direct result of an incident when he had not been adequately supervised, he was deprived of activities that are important to him for weeks and in some cases months, and he was prevented from going on holiday.

    (5) Even in July 2010, when the cat of Hillingdon's thinking was out of the bag, it took almost 4 months for an application to court to be issued, with Steven remaining at the support unit in the meantime.

    (6) Although Hillingdon has accepted and supported Steven's placement at home since the receipt of the experts' reports in February/March of this year, the application it presented in December 2010 and pursued up to the hearing in May 2011 has contained no concessions to Mr Neary's concerns and no acceptance of any shortcomings whatever in relation to past events. Such concessions as were made emerged in cross-examination. Regrets were expressed, but no apology has so far been made to Mr Neary or to Steven.

    (7) On 20 May 2011, the eve of the hearing, Hillingdon circulated a three-page media briefing note to most of the national media. The document was designed to counteract adverse publicity that Hillingdon has received, and against which it had not attempted to defend itself. Nonetheless, it is a sorry document, full of contentious and inaccurate information, and creating a particularly unfair and negative picture of Steven and his behaviour. I learned about the document by chance on the last day of the hearing, expressed dismay, and asked for an explanation. I am told that it was authorised by the Director of Social Care, the Head of Corporate Communications and the Borough Solicitor. It is now accepted "in hindsight" that an error of judgment was made in issuing the briefing note. That is indeed so, though again hindsight has nothing do with it. In addition, Hillingdon has unreservedly apologised to the court. That courtesy is appreciated, although an apology for the document is in truth not owed to the court but to Steven and his father.
  1. Lastly, I have already indicated that the protracted delay in applying to court in this case was highly unfortunate. There are repeated references, particularly by the service manager, to the burden being on Mr Neary to take the matter to court if he wished to challenge what was happening. That approach cannot be right. I have already referred to the decision in Re S, which rightly observes that the practical and evidential burden is on a local authority to demonstrate that its arrangements are better than those that can be achieved within the family. It will discharge the practical burden by ensuring that there is a proper forum for decision. It will not do so by allowing the situation it has brought about to continue by default. Nor is it an answer to say, as Hillingdon has done, that Mr Neary could always have gone to court himself, and that it had told him so. It was Steven's rights, and not those of his father, that were in issue. Moreover, local authorities have the advantage over individuals both in terms of experience and, even nowadays, depth of pocket. The fact that an individual does not bring a matter to court does not relieve the local authority of the obligation to act, it redoubles it.

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