By Gordon Carson
A council multiply breached the human rights of a learning disabled woman after unlawfully depriving her of her liberty, due to practitioners’ ignorance of the Mental Capacity Act 2005.
That was the message of a damning Court of Protection judgement, published this week, regarding Somerset council’s actions in keeping the 19-year-old woman in residential settings for a year with restricted access to her family, following a safeguarding probe.
Judge Nicholas Marston said the council had shown a “blatant disregard of the process of the Mental Capacity Act and a failure to respect the rights of both P and her family” under the European Convention on Human Rights (ECHR).
He was particularly scathing about the legal knowledge of Somerset’s social workers, saying they “did not just disregard the process of the Mental Capacity Act, they did not know what the process was, and no one higher up the structure seems to have advised them correctly about it”. It was also revealed during the 10-day hearing in May and June that the council did not have a lawyer specialising in adult social care.
P had lived with her family from birth until last May, when she started a two-week respite placement while her mother went on holiday. After respite staff found bruising to her chest, the council initiated a safeguarding investigation.
On the basis of a paediatrician’s report, a strategy meeting had found that it was “highly likely that P had received a significant injury from someone or something other than herself”.
When P’s mother, known as M, returned from holiday, the council staff said P would not be returning home because of the investigation into the bruising. A capacity assessment had found that P lacked the capacity to decide whether to return home, though M requested that she be returned home immediately.
However, the paediatrician’s report had been made without the knowledge that, three days before starting the respite placement, P had been seen hitting herself on the sternum by her school teachers. In addition, neither the paediatrician, nor the strategy meeting, were aware, that, on the same day, she had also had to be physically restrained on a school trip after knocking staff members to the floor and pulling hair.
No “proper safeguarding investigation”
Judge Nicholas Marston found that, had council social workers undertaken a “proper investigation” they would have found out this information. They would have thereby concluded that “no or no sufficient evidence existed to be able to conclude that P’s safety was at risk by returning her home”.
The council admitted breaching P’s human rights by depriving her of her liberty in the respite placement from June until November 2013 without lawful authorisation. It also admitted breaching her and her family’s rights to private and family life, under Article 8 of the European Convention of Human Rights, by separating them.
However, Judge Marston concluded that the council had breached P and her family’s rights in several other regards:-
- by not making an application to the Court of Protection for a decision on P’s best interests in June 2013 despite there being a dispute between the council and her family about this;
- by not telling the family they could make an application to the Court of Protection to challenge P’s deprivation of liberty;
- by not making an application to the Court of Protection about P’s best interests in September 2013, when a police investigation into P’s bruising proved inconclusive;
- by restricting and limiting contact between P and her family.
In November, she was transferred to Somerset Support and Assessment Service, an assessment and treatment unit in Somerset, and an urgent authorisation was made to deprive her of her liberty. The authority then granted a standard authorisation to deprive her of her liberty before finally making an application to the Court of Protection to decide on her best interests, triggering the hearing earlier this year.
“Depressing similarities” with Neary case
However, Judge Marston said the breach of P’s rights continued during her time at the assessment and treatment unit because the council had misused the Deprivation of Liberty Safeguards to get its own way in deciding whether P should be placed.
Judge Nicholas Marston said the case of P, who has severe learning disabilities and autism spectrum disorder, had “depressing similarities” in this regard to that of Steven Neary, the autistic man unlawfully detained by Hillingdon Council in west London in 2010.
Giving evidence to the court, Somerset’s strategic manager for adult social care admitted that in the authority there had been a “fundamental misunderstanding of the role of adult social care and how to go about their jobs”.
Judge Martson was very critical of the conduct of P’s social worker, Mr M, saying his actions had been “so flawed” that he would “give very little weight to his views on any issue” made in the local authority’s case to the court.
Polly Sweeney, a public lawyer at Irwin Mitchell who represented P through the Official Solicitor, said: “This is sadly another example of local authorities believing that their safeguarding powers can override their duties under the Mental Capacity Act and the requirement that there is lawful authorisation in place for their actions, however well intended. It is deeply concerning that cases such as this are still being seen before the courts.”
Mark Neary, whose son Steven was at the centre of the other case referred to in Judge Marston’s ruling, said it was “scarily deja vu” that similar failings had been identified in Somerset to those in Hillingdon when Steven was unlawfully detained.
“I find it incredible that three years after our court judgement a local authority thought it could go through a whole series of life-changing decisions for the woman and her family without any consideration being given to deprivation of liberty,” he said.
Call for scrutiny of councils’ Dols role
He also called for the introduction of external scrutiny of how councils carry out their role as supervisory bodies in approving Dols applications from care homes and hospitals.
“It does seem to me that this case, like ours, was driven by an early decision, a momentum built up and nobody stopped to consider whether there were alternatives. It seemed that for the duration the woman was kept away, the local authority just tried to build up evidence to support their original decision. This was exactly what happened to Steven and I.
“Once they did authorise a deprivation of liberty, it doesn’t look like it was the independent process that it is meant to be.”
Neary also called for local authorities to provide much better training on the MCA for staff.
“I know of a local authority close to me, but not Hillingdon, where a company was hired to do MCA training for half a day,” he said.
Irwin Mitchell is pursuing a claim for damages against Somerset for breaching P’s human rights in respect of articles 5 (liberty and security) and 8 (family life) of the European Convention on Human Rights.
P moved back to her family home in July, when the judgement was issued, and, according to her solicitors, has “settled well”.
In a statement, a spokesperson for Somerset council said: “We accept Judge Marston’s ruling and comments. We were completely motivated by serious concern for the young lady’s welfare.
“We have apologised to the family for the distress that our actions caused and are working closely with them to provide the right care and support for their daughter now and in the future. We have also taken urgent steps to ensure that all adult social care staff learn from this case and this situation never arises again.”
The council said disciplinary proceeding were ongoing concerning staff involved in the case.