Taken from Open Justice Court of Protection Project article Injunction against a mother biting the bullet– By Avaia Williams (Barrister in training) – 8 March 2023
DS is a man in his early thirties. He has a profound learning disability, spastic quadriplegic cerebral palsy, does not communicate in words and has been assessed as lacking capacity to make decisions in relation to his residence and care. He appears to have been a Continuing NHS healthcare patient, funded by the ICB.
Following a leg fracture and subsequent hospital admission in December 2021, DS had been living in a hospital ward for over 14 months, due entirely to a lack of suitable alternatives. Citing his mother’s (AW) behaviour, his former placement had served notice some months earlier. No domiciliary care provider had been found to enable a return home to live with AW, and a previously identified placement had withdrawn.
At the date of the hearing, a new residential placement had been found but could only go ahead if a Working Together Agreement was in place, defining conduct expectations. However, since December 2022, AW had not agreed to the plan for the new placement, not signed the Working Together Agreement and was reluctant to negotiate about it. In this hearing, an injunction to require of AW the behaviours to which she had not voluntarily agreed was being considered.
Counsel for DS, representing him through his litigation friend the Official Solicitor, gave an introductory case summary, characterising the 14 month duration of DS’s hospital stay as “an enormous amount of time” when “not medically indicated”. Counsel further explained a prior placement offer had been rescinded due to AW’s behaviour which had been noted as engendering the risk of “reputational damage”.
The ICB had now found a suitable placement for DS. The provider required AW to sign a Working Together Agreement (WTA) committing each party to work together in DS’s best interests, outlining expectations around conduct and setting out the consequences of failing to meet these.
The position of the OS was that focusing on DS, as opposed to making injunctions against AW was preferable, assuming AW was “able to sign the [WTA] today, to enable DS to be discharged” – otherwise the injunction sought should in fact be made.
The judge offered time for the parties to engage in further discussions adding that she was “not willing to leave this open-ended today.” However, AW declined that offer and her counsel reported her primary position was that DS was “not ready for discharge” and her secondary position was that if deemed ready “then he should return home” with her.
The ICB made it clear that “returning home is not an available option for the court. The ICB is not willing to offer such a package.” The CoP may only choose available options and has no power to order an ICB to fund care plans which they are unwilling or unable to do. All the Court can do is refuse to agree that the plan is lawful as being in the best interests of the individual.
Counsel for the Local Authority asserted that if an injunction was made, then AW’s position as DS’s RPR would not be sustainable, a paid representative would be required, and the LA would like a recital to that effect in the order.
Despite submissions that AW’s position was affected by procedural failings in the way the application had been made, DS’s Counsel submitted that all necessary injunction elements existed in other documents served on AW and that “Injunctive directions within a case management order are fairly standard in the Court of Protection. There are two ways of doing it – either like that, or the other way is with injunctions in …. separate documents.”
He acknowledged imperfections with the proposed placement, (100 miles from AW’s home, and carrying a CQC rating of ‘requires improvement’) but asserted that it was nevertheless “in DS’s best interests to be discharged somewhere, and we now have a somewhere. I urge the court to bite the bullet. The price tag is either a signed [WTA] or…injunctive relief so that the care home can provide for DS’s care in a sustainable and safe way.”
Judgment
“The court cannot force a party to provide an option, so the only choice the court has is to either do nothing, or to discharge DS to the Home” which would accept DS only if AW signed the WTA, which she had not previously considered.
“The difficulty is that it’s unclear to me how a court could force a party to give an undertaking, so it seems to me that application is somewhat misconceived – albeit that the intention behind it is very clear: the potential provider requires certain reassurances to be able to provide care for DS.
The judge was satisfied that discharge to the Home was “overwhelmingly in DS’s best interests”. As to the second question, given there was no legal authority to force AW’s consent to a WTA, the available choices were either an injunction or no order for DS to be discharged to the Home.
The court had the power to dispense with the procedural irregularities highlighted by AW’s counsel especially as “all the substantive arguments and evidence that would have been on the COP 9 were present in other court documents that had been served.” She was satisfied there was evidence that AW had disrupted previous placements, such that the court was obliged to protect the placement at the Home.
This would necessitate an injunction, with clarity about the precise prohibited behaviours. She also asked for contact arrangements to be treated separately, with the injunction saying that AW “is to abide by the contact arrangements as set out in the care plan.” which would ensure changes agreed with the care home would not require an amendment to the injunction and reassure the Home that AW would “behave in a reasonable manner with members of staff and will abide by the care plan, and it will limit other contact outside of the weekly update.”
CASCAIDr Comment:
What we cannot understand (and on which we never achieve any engagement when we beg for some) is why the legal profession and the Official Solicitor never address why the care plan that is causing the difficulty has not been tested by way of a JR beforehand. We do know that this is often because of legal aid difficulties but not many young people have more than £3K in savings? We think that consideration of the LEGALITY of the underlying offer (transparency, sufficiency, etc) can be and should be an implicit part and parcel of the Court of Protection’s own approach to the best interests aspect of the plan it is being asked to approve. In the CoP it will be sitting in its primary decision making mode, and given that the CoP is a public authority, bound by the Human Rights Act – it must remind itself of that fact. If a package unlawful in this domestic jurisdiction is treated as finalised then the CoP CAN adjourn for a JR to be launched; this very rarely happens. If that package could easily have been challenged, then that cannot be a sound basis for a best interests decision to our minds, and the Judge then has the option of not endorsing it as IN the person’s best interests.
It must always be better, we think, for a parent on a collision course for being painted as a disruptor or obstructor of the person’s legal entitlement under CHC or the Care Act, to stand as litigation friend for the young person/adult lacking in capacity in proceedings in the Administrative Court, as CLAIMANT on a permission hearing, as opposed to having to act for him or herself as a respondent in CoP proceedings. We do not know the ins and outs of the legal aid system for the RPR in that position who has not yet been ousted from that role, but we doubt that it gets better once he or she IS ousted!