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Misconduct by council employees in DoL case "seriously impeded" court process, says judge

Misconduct by employees of a local authority – involving the re-writing of its records after a hearing – “seriously impeded” the court process in a deprivation of liberty case, a High Court judge has said.

In addition to taking the rare step of naming the council concerned, Cheshire West & Chester, Mr Justice Baker also ordered the authority to pay some of the costs incurred by the other parties involved in the proceedings.

The principal issue in Cheshire West and Chester Council v P & Anor [2011] EWHC 1330 (Fam) was whether the arrangements in place for the care of a man (P) born with cerebral palsy and Down’s Syndrome amounted to a deprivation of liberty or merely, as the authority argued, a restriction on him.

P also had a history of cerebral vascular accidents and presented with significant physical and learning disabilities. It was accepted that he lacked capacity.

The 38-year-old lived with his mother until 2009 when her health deteriorated and he was taken into emergency respite care. A best interests meeting in June 2009 unanimously concluded that it would be in his best interests to reside in a care setting.

The next day the council filed an application in the Court of Protection under the Mental Capacity Act 2005. A district judge made a number of interim direction orders on the same day. In November 2009 P moved to live in an establishment named as ‘Z House’.

P had a long history of challenging behaviour. Continence management had also been a longstanding and significant problem, a part of his behaviour that caused particular difficulty to those entrusted with his care. A variety of techniques were identified to tackle the problem, but sometimes care staff had to resort to physical intervention.

The staff at Z House had recently adopted a new approach to this, which involved the use of an all in one body suit sewn up at the front. The purpose was to prevent P tearing off parts of his continence pads and ingesting them, which posed a hygiene risk and a danger of choking.

The evidence suggested that while P’s care and treatment at Z House had generally been good, there had been concerns about the management of some of his more extreme behaviours.

The Official Solicitor, acting as P’s litigation friend, was concerned that more restrictive measures would sometimes be needed to deal with these behaviours, and those measures would necessarily involve a significant element of physical intervention and restraint which might amount to a deprivation of liberty within the meaning of Article 5 of the ECHR.

Cheshire West & Chester argued that the level of physical intervention amounted merely to a restriction on P, rather than a deprivation of liberty. As a result the proceedings were transferred to the High Court and listed before Mr Justice Baker in July 2010.

It was originally envisaged that the hearing would consist of legal argument based on contested written evidence filed by the local authority. However, shortly before the hearing, the advocates were alerted to the fact that the evidence did not give a full picture of the degree of physical intervention that appeared to be involved in caring for P. In particular there was no mention in the evidence of two specific incidents that had occurred in April and July 2010, of which one had required P to be taken to hospital.

It was therefore agreed that the proceedings should be adjourned to allow Cheshire West & Chester to file further evidence, including copies of the records kept by staff at Z House. In brief oral evidence at  the hearing, a senior support worker (A) at Z House gave evidence that staff adopted measures to divert P as a first step, and only used physical intervention or restraint as a last resort. This happened “probably a couple of times over the course of a month”, she said.

A said the incidents she had referred to would be recorded on accident forms in the local authority records. She also said the council had a “no restraint” policy, and none of the staff at Z House had received training in these techniques.

At the conclusion of this evidence at the July 2010 hearing, Mr Justice Baker renewed the declaration that P lacked capacity to litigate and make decisions as to his residence. He also ordered that it was lawful and in P’s best interest that he continue to reside at Z House, to have contact with his family arranged informally, and to have continued support in accordance with the care plan and associated support programmes. The judge also ordered that, insofar as his care plan and associated programmes at Z House involved a deprivation of his liberty, it was lawful of the council to deprive him of his liberty in his best interests.

The judge ordered Cheshire West & Chester to disclose to the Official Solicitor for onward disclosure all records relating to P within its control at Z House, but rejected a suggestion that the case required an independent social worker. He adjourned the case for final determination on the issue of deprivation of liberty to the first available date after 1 October 2010.

Following that hearing, “an extraordinary incident occurred which fundamentally affected the course of these proceedings”, Mr Justice Baker said in a ruling published this week.

A member of staff at Z House drew to the council’s attention that A and at her instigation other members of staff had altered a number of records concerning P’s care and treatment. “In particular the incident form relating to 2nd April was re-written and other notes changed inter alia to omit references to (a) P attempting to hit members of staff; (b) P attempting to remove his incontinence pad and (c) a member of staff having to hold P while trying to stop him removing the pad.”

The actions led to disciplinary proceedings being taken against A and others, leading to dismissal.

The discovery of re-written records “understandably” undermined the confidence the Official Solicitor and M and her representatives had in the local authority’s care plan for P, Mr Justice Baker said.

M’s solicitor wrote to Cheshire West & Chester to say that the case now required the instruction of an independent social worker, and called for the council to pay the costs of that instruction. He also argued that it was clear P’s care plan had involved physical intervention and was thus a deprivation of liberty, adding that the council should pay the costs incurred in arguing the issue of deprivation of liberty.

The council rejected the need for an independent social worker, relying on the judge’s earlier comments (made before the emergence of the record tampering) and claiming it would be “disproportionate and unnecessary”.

M’s solicitor therefore filed an application for the instruction of an independent social worker in October 2010. Mr Justice Baker granted the application the following month, but reserved the issue of who should pay the costs.

The report of the independent social worker, Miss Whittaker, was filed on 24 January 2011. She concluded that it was in P’s interests to stay at Z House and that contact between P and M in M’s home was in P’s best interests. However, she expressed the view that his care package did not meet his needs, and made a number of recommendations on how it should be adjusted. In particular, she expressed the opinion that the level of restraint or physical intervention required in P's case was greater than that currently being provided.

Miss Whittaker then gave evidence to the court at a hearing in February this year. After she had done so, the case was adjourned to see if the parties could reach an agreement on amendments to the care plan. Further negotiations and the assistance of the court led to resolution of the outstanding issues.

Cheshire West & Chester also drew up a new physical intervention policy, which was ratified by its Departmental Management Team. In a statement to the court, the head of operations in the adult social care directorate (H) acknowledged that it was clear that staff did not previously have guidance about he issue of restraint.

"One of the key lessons learnt is that the local authority needs to ensure that those working with incapacitated adults presented with challenging behaviour are reassured that a proportion of restraint is lawful," H said. "The legal terms 'deprivation of liberty' and 'restraint' unfortunately invoke negative connotations in lay minds when they are intended to promote a person's best interests."

Mr Justice Baker said that as a result of the amendments to the care plan, the introduction of the new policy and the assurance that the training necessary for implementing that policy would be provided on an urgent basis to staff at Z House, the court was content to endorse the care plan as representing the best solution for meeting P’s multiple needs. A further review by way of oral hearing will be conducted by the court later this year.

On the disputed issue of whether P's circumstances objectively amounted to a deprivation of liberty, Mr Justice Baker acknowledged that the council and those working at Z House had taken very great care to ensure P's life was as normal as possible. There were a number of features that, by themselves, might suggest it was not a case of deprivation of liberty and helped give P's life a strong degree of normality.

However, P's life was completely under the control of members of staff at Z House. "He cannot go anywhere or do anything without their support or assistance. More specifically, his occasionally aggressive behaviour, and his worrying habit of touching and eating his continence pads, require a range of measures, including at time physical restraint, and, when necessary, the intrusive procedure of inserting fingers into his mouth (to remove bits of the pads) whilst he is being restrained."

The judge decided that the steps required to deal with P’s challenging behaviour lead to a clear conclusion that P was being deprived of his liberty.

Mr Justice Baker said he wanted to make it clear he was not being critical of the council or the staff at Z House. “In my judgment, it is almost inevitable that, even after he has been supplied with a bodysuit, P will on occasions gain access to his pads and seek to ingest pieces of padding and faeces in a manner that will call for urgent and firm intervention,” the judge said.

“Those actions will be in his best interests and therefore justifiable, but they will, as a matter of concrete fact and legal principle, involve a deprivation of his liberty. The reason for attaching that label to those actions is not to stigmatise either P or his hard-working and dedicated carers, but so that all involved with his care recognise the implications of what is happening.”

The judge said two important things flowed from this conclusion. “First, those working with P are under a clear obligation to ensure that the measures taken are the least interventionist possible,” he explained. “That requires a regular reassessment of his circumstances, to see if there are alternative strategies that can be adopted that meet his needs without involving actions that would limit the impact on his liberty. The bodysuit is one example of such a strategy. Another example would be an intensive programme of education trying to teach and encourage P not to behave in ways that require restraint.”

The second result was that there must be regular reviews by the court to comply with Article 5. “In this case, the local authority has conceded, in the light of past events, that there should be such reviews in any event whatever my conclusion on the question of deprivation of liberty,” Mr Justice Baker said. “In my judgment, however, that concession does not obviate the need for the Court to scrutinise the circumstances and declare whether or not the circumstances do amount to such a deprivation.”

On the subsidiary issue of costs, Mr Justice Baker said the misconduct of the local authority’s employees in tampering with the records was serious.

“The local authority’s failure to disclose some relevant documents, followed by the attempt to interfere with those records, unquestionably lengthened the proceedings,” he concluded.

The judge said it had not been unreasonable for Cheshire West & Chester to contest the issue of whether there had been a deprivation of liberty, particularly in light of the decision of Parker J in Re Mig and Meg at first instance. “But overall the proceedings were rendered significantly more complex, time-consuming and costly as a result of the actions of the local authority and its employees.”

Mr Justice Baker said it was impossible to put a precise value on the extra costs incurred, but he was satisfied that a substantial proportion of the overall costs of the proceedings were attributable to that misconduct and its consequences.

He therefore ordered Cheshire West & Chester to pay: the full costs of the instruction of Miss Whitaker; all of the Respondents’ costs of the hearing on 29 July 2010 to be assessed on a standard basis if not agreed; and one half of the remaining costs incurred by the Respondents in the proceedings after 29 July 2010 up to and including the hearing on 4 April 2011 (again on a standard basis).

Cheshire West & Chester argued before the judge that the publication of its name was likely to lead to the identification of P. The Official Solicitor was neutral on the issue, but counsel for M argued that the authority should be named.

Mr Justice Baker said: “In my judgment, the public interest in holding public authorities accountable for the actions of their employees manifestly amounts to a ‘good reason’ for publishing the judgment in an anonymised format but authorising the naming of the local authority in any published report of the judgment.

“I also endorse the submissions made by Mr. O'Brien (counsel for M) that such publication will help to sustain public confidence that the Court of Protection is carrying out its functions in the public interest within the restrictions imposed by Parliament.”

The judge said the facts of the case meant there was “little likelihood that naming of the authority would lead to identification of P on a scale that would amount to a significant infringement of his right to respect for privacy, or have detrimental effect on his new support workers or the other residents at Z House”.

On publishing the names of past or present employees of the authority, the judge said he could see prima facie grounds for saying there was a “good reason” for publishing some of them. However, he said he was conscious that none of them had been consulted on the point, nor had they had the opportunity to take advice.

He therefore decided against relaxing the prohibition on publishing their names. Any party or organisation who wanted to argue for their identification would have to make a further application to the court.

As a postcript, the judge said he was acutely conscious that, as in G v E, he had made significant criticisms of local authorities and their employees, and that in each case he had concluded that it was in the public interest that those authorities should be named.

“I am also acutely aware, as I observed in G v E, that there are thousands of social workers, care support workers, and other professionals who dedicate their lives week in, week out, to caring for people like P who have profound and challenging disabilities,” he said.

“Indeed, I make it clear that those who currently work with P clearly fall into this category. The excellent work of professionals in this field deserves greater public recognition. For my part, I can certainly envisage circumstances in which the high standard of care being provided by a local authority would amount to a good reason to identify that authority in a published judgment.”

A spokesman for Cheshire West & Chester said the council would not be commenting on the case until it had taken a decision, based on counsel's advice, on whether to appeal.

Philip Hoult

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