padded rooms and lessons for deprivation of liberty and care
planning
20 June 2011
Hard on the heels of Neary v London Borough of Hillingdon (16
June 2011), another local authority has fallen foul of the Court of
Protection for an unlawful deprivation of liberty, this time for a
child in a special school. Like Neary, C v A Local Authority has
lessons about deprivation of liberty, care planning and management,
and involvement of families more widely.
While we are still trying to digest the ruling and implications
of the Court of Protection’s high profile and widely reported
judgment that Steven Neary was unlawfully deprived of his liberty
by the London Borough of Hillingdon, deprivation of liberty is back
in the newspapers again. The coverage has, understandably, focused
on the findings relating to use of a “padded room” to control the
behaviour of an 18 year old man with autism and severe learning
disabilities, but this should be treated with caution as it is only
one aspect of the case, which has much wider implications.
C, now aged 18, had been resident in a special school since
2007. His care included 24 hour support with a 2:1 staffing ratio.
His behaviour was sometimes extreme, aggressive and harmful both to
himself and others, including incidents in which carers had
suffered a broken nose, and lost the sight in one eye from a
detached retina. Management of his behaviour at the school included
use of a padded room of about 10 feet square with a secure door
that would be held closed by the carers - “the blue room” - where
he was secluded. The evidence was that this room was used very
frequently, for example more than 6 times a day on average in one
month, often as a way of dealing with C’s propensity to be
naked.
In September 2010, C’s mother and brother brought judicial
review proceedings to challenge alleged failures by the local
authority to plan or provide for C’s care properly, including
appropriate arrangements for his transition to an adult placement
at age 18 years. At the same time, the local authority started
Court of Protection proceedings for declarations about C’s best
interests and lawfulness of the care arrangements.
Many of the issues between the family and local authority were
resolved by agreement before the court gave judgment on 30 March
2011 (though the case was only reported on 17 June 2011). In
particular the information / documents that the family had been
refused initially were all disclosed voluntarily, and the authority
undertook the care and transition planning required by the Children
Act and associated legislation, which it accepted it had failed to
do previously. There will be another hearing later to determine
whether there was any breach of C’s right under Articles 3 (freedom
from inhuman and degrading treatment) and 8 (right to family life)
and issues of compensation for the breach of Article 5 (unlawful
deprivation of liberty), but this judgment, given by Ryder J,
covers a number of important issues.
1. The repeated use of seclusion was a factor, but it seems
likely that the circumstances of C’s life at the school would have
been held to be a deprivation of liberty in any event. The key
factor was “whether the person is, or is not, free to leave”,
tested by “whether those treating him exercise complete and
effective control” (paras 47-48, 103-104, 114).
2. There was no lawful authority for the deprivation of liberty,
and therefore there was a breach of C’s Article 5 rights. The court
was especially critical of the local authority’s failure to bring
the case to the Court of Protection immediately C was 16 years old
(and the issue is left open whether there may have been unlawful
deprivation before that age as a result of the authority’s failure
to apply for a secure accommodation order under s25, Children Act
1989) (paras 48, 113).
3. Although the Deprivation of Liberty Safeguards did not apply
(as the school was neither a care home nor a hospital) the DOLS
code of practice was relevant and should have been taken into
account (paras 63, 64).
4. Likewise, though C was not detained under the Mental Health
Act, the MHA code of practice, and associated guidance on seclusion
in particular, showed best practice and should have been followed
(paras 68-71). The judge accepted that this “no doubt has
implications for other young people with serious learning
disabilities who are in residential care”.
5. The reality seemed to be that C was often secluded in the
blue room as the staff’s way of dealing with his nakedness. This
was unacceptable. The judge directed that staff should be trained
and put in place arrangements to minimise restrictions on C’s
choice to be naked (paras 116-117).
The judgment is also significant for a number of other
reasons:
MHA / MCA - The judge could not understand why
no consideration had previously been given to using the Mental
Health Act to detain (and protect) C, but suggests that the
decision of whether to use MHA or MCA should rest with the clinical
team at his next placement, which could be taken to contradict the
judgment in GJ v the Foundation Trust (per Charles J, 2009) that
clinicians “cannot pick and choose” between the two, which Ryder J
quotes in the next paragraph (paras 67, 85-87)
Judicial review or best interests - With the
range of issues involved, crossing the jurisdiction of the
Administrative Court to judicially review the local authority’s
decisions and the Court of Protection’s jurisdiction over issues of
C’s best interests, the outcome is an extensive and prescriptive
judicial intervention in detailed care planning. The judge sets out
exactly what should and should not be done, rather than saying a
local authority should reconsider any unlawful decision, or
determining C’s best interests among competing options presented by
the parties. Judgments like this will make it much harder to draw
the line between disputes over best interests, and those that are
in essence challenges to funding or care planning decisions.
Resources - The issue of resources is implicit
throughout the judgment, but never openly dealt with. The judge
held that it was not in C’s best interests that another young man,
A, shared some of his facilities. It was agreed that C would be
moved as soon as possible to an interim placement – a “bespoke”
residence with a dedicated private garden area, with a staff of 15
carers dedicated and trained for him alone. No issue was raised
over the cost or funding for this, but we might wonder how long it
will be before we can no longer avoid fighting on that ground in
the Court of Protection, notwithstanding the extraordinary need of
people in C’s circumstances, as resources have to be spread ever
more thinly.
Communication with family - Finally, in common
with the judgment in Neary, this seems to be another case that has
come to litigation, at least partly, as a result of a breakdown in
the relationship between the family and the local authority. The
family complained that they were not given information that they
reasonably requested, though in the end everything they wanted was
disclosed to them voluntarily within the proceedings anyway. The
judge commented that “negative assumptions” about C’s mother were
unjustified, and “more to the point she is and should be a partial
defender of her son’s interests” (para 101).
Though it is stating the obvious, cases like this remind us that
open communication and involvement of the family are vital not only
for ensuring good practice, but also for avoiding expensive and
damaging litigation. Even if reference to the court cannot be
avoided – and this case is part of an increasingly obvious trend of
judgments critical of local authorities for failure to involve the
court promptly – that process will be much quicker and cheaper
where the parties are collaborative rather than adversarial.
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