A Court of Protection judge recently criticised a council for "chilling" failures to comply with the Mental Capacity Act. Sophy Miles explains why.
In A (Fact-Finding)  EWCOP 58, HHJ Clayton strongly criticised, and awarded costs against, a local authority and Clinical Commissioning Group after their pursuit of a fundamentally flawed approach to the best interests of P, a young man with a severe global delay, who was unable to communicate verbally.
P had been placed in care as a child. His mother and aunt had died and his siblings had been adopted or placed under special guardianship orders. P was accommodated in a residential home where his key worker, TQ established a rapport with him and clearly "cares for him greatly and so offers him something which no one else does in his life".
When P was 18 he was moved to an alternative placement, I. There was a delay in arranging a standard authorisation so P was initllay unlawfully detained. TQ wanted to continue to visit P after the move and to be appointed as his personal welfare deputy. When her contact was terminated, she applied to the Court of Protection to be appointed as deputy. The Court ordered her contact with P to re-commence and after 3 days of evidence (there are two references to "vigorous cross-examination" of the witnesses for the statutory bodies), TQ was appointed as P's deputy with extensive powers. Birmingham Children's Trust (BST) and NHS Birmingham and Solihull Clinical Commissioning Group were ordered to pay the Official Solicitor's costs between them.
Wholesale failings to comply with the Mental Capacity Act emerged from the evidence, stemming from BST's "policy" that the mere fact that TQ had been a paid carer for P compelled a conclusion that she should have no further involvement in P's life. The policy became the only factor in determining P's best interests and led to the best interests checklist in section 4 MCA being ignored. The judge further noted that "once following that policy it seemed that evidence was presented in such a way as to support that policy rather than presented in an informative and fair-minded way".
HHJ Clayton said at :
"There was a failure to carry out capacity assessments in a timely manner, and or at all, and a failure to record them in writing. The capacity assessment as to contact took place 3 months after the best interests decision was taken to prevent TQ having contact with P. The quality of the best interests decision making was poor as has been canvassed already within this Judgment. The identity of those involved was not even clear to those participating."
This was not a technicality - it was because the letter and spirit of the MCA was ignored that the decision-making was so poor and
"led to a wholesale failure of best interest decisions in respect of P as to his contact with TQ; a failure to include TQ, as a person important to P, in the decision making process; a lack of structure in any decision making as to whether TQ should be appointed as P’s PWD; failure to make timely decisions as to repair of damage furniture in P’s bedroom, to order a new hoist sling to replace the damaged one being used, to agree funding for his sleep system which he had been assessed to need; failure to apply for authorization of his deprivation of liberty under schedule A1 MCA 2005 prior to his move to Placement 1 so that he was unlawfully deprived of his liberty and without the protection of the Deprivation of Liberty Safeguards for a period of time".
Thanks to the tenacity of TQ and the Official Solicitor, this case has a happy ending to the extent that TQ will continue to have involvement and oversight in P's life. Individuals less determined than TQ might have accepted defeat and simply withdrawn from P's life. Given P's communication difficulties he would effectively have been left without a voice.
Nearly seven years ago in Aintree v James, Lady Hale made the simple but crucial observation that:
"The purpose of the best interests test is to consider matters from the patient's point of view."
The judge described as "shocking" the failure to consider the benefit to P of spending time with the only person who cared for him outside of a professional relationship. The irony here is that compliance with the processes of the MCA would have helped the local authority, because it would have been guided to look at the questions from P's perspective, rather than using its policy as a starting point. It would have been much more likely to make a decision which was consistent with P's human rights.
As HHJ Clayton observed here (at ),
"Only if there is good practice can we trust our agencies and professionals working within them to deliver satisfactory standards of care to some of the most vulnerable people in our society and to protect their human rights."
It is more than a decade after the MCA was implemented, and nine years since Mr Justice Peter Jackson highlighted in Hillingdon v Neary (which has some parallels with this case) the importance of human rights in decision-making for adults lacking the capacity to make decisions themselves. This case is a troubling reminder of how much work remains to be done.