Welcome to the November 2015 Newsletters. Highlights this month include:
- In the Health, Welfare and Deprivation of Liberty Newsletter, a decision about deprivation of liberty in hospital and the meaning of state detention under the Coroners and Justice Act 2009, and the final instalment in the Rochdale deprivation of liberty saga;
- In the Capacity Outside the CoP newsletter, an introduction to
the work of the new National Mental Capacity Forum from its Chair, Baroness Finlay;
- In the Practice and Procedure Newsletter, an update on the regionalisation of the Court of Protection;
- In the Property and Financial Affairs Newsletter, a number of decisions concerning powers of attorney;
- And in the Scotland Newsletter, the annual report of the Mental Welfare Commission for Scotland.
We also take this opportunity to remind readers that where one of the Newsletter editors is instructed in an ongoing case which is summarised, that editor does not play any part in drafting the summary or comment.
And remember, you can now find all our past issues, our case summaries, and much more on our dedicated sub-site here.
Alex Ruck Keene Victoria Butler-Cole Neil Allen
Annabel Lee Anna Bicarregui
Simon Edwards (P&A)
Guest contributor Beverley Taylor
Scottish contributors Adrian Ward
Table of Contents
We are delighted that Baroness Finlay, the newly appointed Chair of the Mental Capacity Forum, has agreed to write a few words for us setting out her agenda as she takes up her position
The 2005 Mental Capacity Act was a pioneering piece of legislation, aimed at empowering and supporting those who had been inadequately involved in decisions that affected them. It was hailed as embodying best practice and should have made sure that the string of complaints that “no one listened” became a thing of the past.
So perhaps it is worth reflecting on why the aspirations are not easily realised and why the post-legislative scrutiny committee had so much to say about the failings in implementation.
One fundamental difficulty that is often encountered is when law – which of necessity is as black and white as the words written on a page – is applied across a whole population to complex clinical decisions about individuals whose needs and desires fluctuate and are subject to multiple influences - a multi-coloured spectrum of decisions. In the clinical scenario this becomes even more difficult; there may be many apparently small decisions whose cumulative effect seriously alters the short and long term outcome for a person.
A second difficulty is that the language of the law is poorly understood by most people. Ask a group of people on a bus if they know what ‘an advance decision to refuse treatment’ is; you
will probably get the answer ‘I’m not sure about one of them’ but ask what ‘a refusal’ and even those with basic English language skills will be able to tell you ‘I don’t want it’. Similarly for ‘advance statement of wishes’ – it evokes ‘I don’t know what that is’ but all are clear about what a ‘wish’ is.
The term ‘advance care plan’ is tautology – after all, who has made a plan for their holiday last year? So to make the Act’s working more accessible we must simplify the language for clarity and encourage a national conversation around people want to refuse, their wishes and their plans.
Many people in our society are vulnerable, whether over material possessions (particularly financial fraud) or over the integrity of their whole being, when decisions are to be made about their mental and physical wellbeing. And sadly, many people and their families are finding the very processes put in place to protect are, of themselves, cumbersome.
Following the post-legislative scrutiny report from the House of Lords, the Government decided to set up the National Mental Capacity Forum. It faces many challenges, but has the opportunity to make a difference and change processes to improve outcomes. Those on the receiving end must not feel they are ‘being done unto’ but must feel they are empowered and valued; as Cicely Saunders said ‘dignity is having a sense of personal worth’.
Hence the first task of the Forum is to listen, listen to voices of those who do not feel their difficulties have been understood, who feel they have solutions to offer that could improve things, and harness those lessons.
The Forum must be outward facing to people, clients and service-users, who are affected by the Act. Then those responsible for implementation of the legislation can ensure the processes are those needed to free up time to care and to improve outcomes for individuals. The quality of life of those we care for can and must be enhanced by the legislation designed to do just that.
Ilora Finlay Baroness Finlay of Llandaff, chair of National
Mental Capacity Forum
Medway Council v (1) M (2) T (by her Children’s Guardian)  EWFC B164
This case concerned the unlawful removal of a child from her mother in the context of care proceedings. The mother and daughter brought a claim under the Human Rights Act 1998 for declarations and damages.
The mother was detained in hospital with a serious mental disorder. In the absence of anyone else with parental responsibility, the local authority put the daughter (who was five years old at the time) in emergency foster care. The mother did not have capacity to give consent under section 20 of the Children Act 1989.
The local authority purported to obtain written consent from the mother despite the social
worker expressing doubts about her ability to understand the meaning of it. A capacity assessment was not carried out. At the time, the local authority decided that there was no need to bring care proceedings and that it could rely on the mother’s consent under section 20.
Care proceedings were finally issued more than two years after the daughter had been in care. The local authority argued that it had lawfully discharged its duty and that the absence of the mother’s consent was irrelevant; what mattered was that the mother had not objected to the arrangements.
The court rejected the local authority’s argument and held that without the mother’s informed, capacitous and freely-given consent, the local authority had no lawful basis on which the accommodate her daughter without obtaining a court order. There was nothing in section 20 which made provision for any “emergency” or “discretionary” powers over a child. In an emergency situation, it might be reasonable to wait a day or two before issuing care proceedings (to review the parent’s progress in hospital) but the period should be less than 72 hours. Proceedings must be brought as immediately as possible. In this case, the daughter had been unlawfully accommodated by the local authority for 2 years and 3 months before it issued proceedings, the longest in any reported case to date.
The court concluded that the daughter was unlawfully removed and that there had been serious violations of the mother and daughter’s rights under articles 6 and 8 ECHR. It awarded
£20,000 each to the mother and child.
In a decision which is highly critical of the local authority’s procedures, the issues raised are similar to those often before the Court of Protection concerning unlawful deprivations of liberty. In this case, the initial removal of the child was unlawful as was as the continuation of the placement in that the local authority failed to bring this matter to court within “a day or two.”
The case also demonstrates the importance and need for social workers to consider mental capacity in all areas of local authority work. In this case, the mother suffered an extremely serious episode of depression with psychotic features in early 2013 which resulted in her detention in hospital. Her mental health deteriorated again after the birth of another child. A consultant psychologist reported that the mother’s intellectual functioning was so low as to satisfy a diagnosis of learning disability and, given the global low functioning, the expert considered that even with an improvement in the mother’s mental state any consequent improvement in her cognitive functioning would be minimal. It was likely on the evidence that the mother had been subject to traumatic experiences. Although various social workers had alluded to the mother’s lack of understanding, her inability to make informed decisions and give consent, no capacity assessment was undertaken until it was ordered by the court in the context of proceedings. Further, there were no records of any discussions having taken place with the mother about her child’s whereabouts and care until after she was discharged from hospital. The court’s judgment is damning: “What is betrayed is the most shocking misunderstanding of the law by both social work and legal teams at Medway Council, and of the proper limitations of their exercise of power over this family…”
It is interesting to note that the court, having made the declarations sought and having assessed the quantum of damages to be awarded, deferred making the order for payment and costs to a later date. This was done pursuant to a request made by the Official Solicitor who was investigating the most appropriate way to manage an award for a protected party where the mother was in receipt of non-means and non-merits tested legal aid, but there were concerns that the Legal Aid Agency might take steps to claim the costs of the mother’s representation from the award. This is directly analogous with unlawful detention claims within the context of section 21A proceedings in the Court of Protection. P is also entitled to non-means and non-merits tested legal aid but in many situations, a damages award for unlawful detention may have no tangible benefit for P if the Legal Aid Agency seeks to recover its costs from any such award.
R (Cornwall Council) v Secretary of State for Health & Anor  UKSC 46
Ordinary residence - incapacity
This case concerned the ordinary residence of P, who has severe physical and learning disabilities and lacks the capacity to decide where to live.
He lived with his parents in Wiltshire until he was four years old. At that time his parents asked Wiltshire Council to arrange his accommodation and P was placed with foster-carers in South Gloustershire, pursuant to section 20 of the Children Act 1989 (“CA 1989”). P lived with his foster-carers in South Gloustershire for the next
14 years, until he reached majority in 2004. After he turned 18 he lived with his former foster-carers for approximately one month before moving to live in two different care homes in Somerset.
P’s parents moved to Cornwall around the time that P was placed into foster-care but they remained closely involved in decisions affecting his care. They visited him four or five times a year and he occasionally went to stay with them in Cornwall.
The Secretary of State was asked to determine a dispute between Wiltshire, South Gloustershire and Cornwall as to P’s ordinary residence when he turned 18. The local authorities agreed that this was the relevant date because P’s need for accommodation under section 21 of the National Assistance Act 1948 (“NAA 1948”) arose on that date. Accommodation provided under section
21 was excluded from consideration for the
purpose of determining ordinary residence by section 24(5) of the NAA 1948, which provided that “Where a person is provided with residential accommodation under this Part of this Act, he shall be deemed for the purposes of this Act to continue to be ordinarily resident in the area in which he was ordinarily resident immediately before the residential accommodation was provided for him.” A similar provision is found in section 105(6) of the CA 1989, which states that “In determining the 'ordinary residence' of a child for any purpose of this Act, there shall be disregarded any period in which he lives in any
place … while he is being provided with accommodation by or on behalf of a local authority.”
The Secretary of State took into account the entirety of the relationship between P and his natural parents and determined that P’s ‘base’ and place of ordinary residence was with them in Cornwall when he turned 18. In doing so the Secretary of State applied his “Guidance on the Identification of the Ordinary Residence of People in Need of Community Care Services”, which set out two tests from R v Waltham Forest London Borough Council, ex Parte Vale (1985) Times 25 February. The first test in the Guidance from Vale, so-called “Test one”, treated a mentally disabled person in the same way as “a small child who was unable to choose where to live”, with the consequence that they have the same ordinary residence as their parent or guardian. The second test in the Guidance from Vale, “Test two”, involved considering a person’s ordinary residence as if they had capacity and provided that: “All the facts of the person’s case should be considered, including physical presence in a particular place and the nature and purpose of that presence …”
Beatson J upheld the Secretary of State’s determination and Cornwall appealed to the Court of Appeal. Elias LJ, with whom the rest of the Court of Appeal agreed, held that the Secretary of State had misdirected himself in law and that the first test in Vale ought not to be followed. He was critical of the use of the term ‘base’ and went on to say that, even if that was a helpful concept, Cornwall could not properly be so described as it was simply a place that P visited occasionally for holidays. Elias LJ also thought Wiltshire was out of the question as P had ceased to have any connection with it at all. He held that South Gloustershire was therefore
the only conclusion properly open to the Secretary of State.
The majority of the Supreme Court disagreed. Lord Carnwath, with whom Lady Hale, Lord Hughes and Lord Toulson agreed, held that P was ordinarily resident in the area of Wiltshire. Lord Carnwath undertook a detailed review of the authorities on ordinary residence, including the leading modern authority on ordinary residence, R v Barnet LBC, Ex p Shah  AC 309, and In re P (GE) (An Infant)  Ch 568, the source of the word ‘base’ used in Vale and the Secretary of State’s guidance. Lord Carnwath considered that Lord Denning did not intend in that latter case to separate the idea of a base from a need for physical residence of some kind.
Lord Carnwath also reviewed the facts of Vale, where Taylor J was asked to decide the ordinary residence of a young woman, Judith, mentally incapable of forming a settled intention of where to live, who had been living in Ireland for 20 years and returned to live with her parents in England for a few weeks while a suitable residential placement was found for her. Taylor J held that the extent of her disabilities was such that she was totally dependent upon her parents: “She is in the same position as a small child. Her ordinary residence is that of her parents because that is her ‘base’ …” Taylor J went on to hold that if Judith was treated as if she had capacity, the same result would follow as her residence with her parents had all the attributes necessary to constitute ordinary residence.
Lord Carnwath was clear that Taylor J’s two approaches should not be treated as separate legal tests. He said (at para 47):
“[Taylor J’s two approaches] were
complementary, common-sense approaches to the application of the Shah test to a person unable to make decisions for herself; that is, to the single question whether her period of actual residence with her parents was sufficiently “settled” to amount to ordinary residence.”
Lord Carnwath considered that under the language of the NAA 1948, “it is the residence of the subject, and the nature of that residence, which provide the essential criterion”. He went on to say (at para 51):
“In so far as Vale is relied on to substitute an alternative test, based on ‘the seat of (his) decision-making’, or otherwise on his relationship with his parents and their home, it depends on a misunderstanding of that judgment. The seat of the decision-making power in relation to a mentally disabled adult is the authority making the placement (subject to any contrary determination by the Court of Protection), not the parents. For the same reason, the weight put by the decision-maker on the so-called Vale tests 1 and 2, both in the guidance and in the decision-determination, was in my view misplaced.”
Having determined that P had not therefore been ordinarily resident in Cornwall, Lord Carnwath then examined the case for P to be ordinarily resident in either of the two remaining local authorities. He said that applying the Shah test without qualification it was easy to see why the Court of Appeal chose South Gloustershire, where P had lived happily for 14 years. Lord Carnwath was explicit about his reasons for rejecting this, despite it being the obvious
answer (at paras 53-55):
“… [A]lthough the choice of South Gloucestershire may fit the language of the statute, it runs directly counter to its policy. The present residence in Somerset is ignored because there is no connection with that county other than a placement under the 1948 Act. By the same policy reasoning, South Gloucestershire’s case for exclusion would seem even stronger. There is no present connection of any kind with that county, the only connection being a historic placement under a statute which specifically excluded it from consideration as the place of ordinary residence for the purposes of that Act. The question therefore arises whether, despite the broad similarity and obvious underlying purpose of these provisions (namely that an authority should not be able to export its responsibility for providing the necessary accommodation by exporting the person who is in need of it), there is a hiatus in the legislation such that a person who was placed by X in the area of Y under the 1989 Act, and remained until his 18th birthday ordinarily resident in the area of X under the 1989 Act, is to be regarded on reaching that age as ordinarily resident in the area of Y for the purposes of the 1948 Act, with the result that responsibility for his care as an adult is then transferred to Y as a result of X having arranged for his accommodation as a child in the area of Y.
It is highly undesirable that this should be so. It would run counter to the policy discernable in both Acts that the ordinary residence of a person provided with accommodation should not be affected
for the purposes of an authority’s responsibilities by the location of that person’s placement. It would also have potentially adverse consequences. For some needy children with particular disabilities the most suitable placement may be outside the boundaries of their local authority, and the people who are cared for in some specialist settings may come from all over the country. It would be highly regrettable if those who provide specialist care under the auspices of a local authority were constrained in their willingness to receive children from the area of another authority through considerations of the long term financial burden which would potentially follow.”
Unlike the Court of Appeal, Lord Carnwath considered that comparable expressions, including ‘normal residence’ and ‘habitual residence’, were a doubtful guide.
Lord Carnwath held that the statutory context was critical in construing the relevant words in section 24 of the NAA 1948. In light of the purpose of the provision, which he considered concerned only the allocation of fiscal responsibility as between local authorities, it would be artificial to ignore the nature of P’s placement under the CA 1989, a parallel statutory context. Lord Carnwath said (at paras 59-60):
“… [I]t would be wrong to interpret section 24 of the 1948 Act so as to regard PH as having been ordinarily resident in South Gloucestershire by reason of a form of residence whose legal characteristics are to be found in the provisions of the 1989 Act. Since one of the characteristics of that placement is that it did not affect
his ordinary residence under the statutory scheme, it would create an unnecessary and avoidable mismatch to treat the placement as having had that effect when it came to the transition in his care arrangements on his 18th birthday.
On this analysis it follows that PH’s placement in South Gloucestershire by Wiltshire is not to be regarded as bringing about a change in his ordinary residence. Throughout the period until he reached
18 he remained continuously where he
was placed by Wiltshire, under an arrangement made and paid for by them. For fiscal and administrative purposes his ordinary residence continued to be in their area, regardless of where they determined that he should live.”
In his dissenting judgment Lord Wilson agreed with the Court of Appeal. He acknowledged the strong reasons of public policy which militated in favour of the conclusion reached by the majority. At the same time, he was clear that this was not the result which the law, as it stands, compels, saying “I am not a legislator. Nor, with respect, are my colleagues.”
The conclusion that P was ordinarily resident in the area of Wiltshire is likely to have far-reaching consequences for the law governing ordinary residence. It is fair to say that it came as a great surprise. As Lord Wilson pointed out in his dissenting judgment, it is a conclusion for which no party had contended at any stage of the proceedings.
The case is extremely important for anyone practising in this field. Many will applaud, in
particular, Lord Carnwath’s rejection of a separate, paternalistic Vale test for those who lack the capacity to decide where to live. Unfortunately for those who practise in this area, Lord Carnwath’s judgment opens up almost as many questions as it answers. It seems highly likely that policy reasons articulated by Lord Carnwath for applying the deeming provisions contained in the CA 1989 when determining ordinary residence for the purpose of the NAA 1948 would apply equally when interpreting ordinary residence in the Care Act 2014. This suggests that considerable caution should be exercised when relying on the commentary on ordinary residence in the Care and Support Statutory Guidance, which was written following the judgment of the Court of Appeal.
Questions also arise about the interpretation of ordinary residence in other statutory contexts. It seems likely, for instance, that the deeming provisions in the CA 1989 would also apply when determining ordinary residence and therefore responsibility for providing after-care services to a young person under section 117 of the Mental Health Act 1983, but definitive resolution of such issues will await further case law. This may well be some time coming, given how infrequently ordinary residence issues reach the courts.
As we go to press, the Government has published its response to the consultation No Voice Unheard. The response is available here. Various proposals including new guidance and legislative change are set out, although all are subject to the comprehensive spending review, and some – such as further guidance on the need to ensure there is adequate community provision – do not seem particularly likely to result in meaningful change without significantly
more money being injected into the system. One of the longer term aims is ‘further consideration in principle of whether and how the Mental Health Act should apply to people with learning disabilities and/or autism’, one of the proposals that overlaps with the current Law Commission consultation and could be overtaken by the legislation the Commission produces next year.
Adrian and Jill will be participating in a half-day seminar for CPP Seminars Scotland on 4 December at Brodies LLP in Edinburgh. For further details, and to book, see here.
MBL Court of Protection Conference, London, 11 December
Neil is chairing and speaking at this full-day conference on topics from
Alex Ruck Keene Victoria Butler-Cole Neil Allen
Annabel Lee Anna Bicarregui
Simon Edwards (P&A)
Guest contributor Beverley Taylor
Scottish contributors Adrian Ward
deprivation of liberty to medical treatment to statutory wills. Further details here.
and training events
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Alex Ruck Keene Victoria Butler-Cole Neil Allen
Annabel Lee Anna Bicarregui
Simon Edwards (P&A) Scottish contributors
Adrian Ward Jill Stavert
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