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Judge criticises children's trust and clinical commissioning group over "wholesale failure of best interest decisions" for man with epilepsy

A judge has awarded costs against Birmingham Children’s Trust (BCT) and NHS Birmingham and Solihull Clinical Commissioning Group (CCG) after what he called their “wholesale failure” in a case of a young man with severe epilepsy.

HHJ Clayton, sitting in the Court of Protection at Birmingham Civil Justice Centre, said the failings were such that litigant P “was unlawfully deprived of his liberty and without the protection of the deprivation of liberty safeguards for a period of time”.

TQ, who had been a key worker in a residential care home with P before he was 18, had applied to become a health and welfare deputy for him under section 16 of the Mental Capacity Act 2005.

The judge said P had no family with whom he had contact but TQ had worked with him and “it is clear she cares greatly for him and so offers him something which no one else does in his life”.

Both the trust and CCG had opposed TQ’s application to become a deputy but withdrew these objections after court orders were made directing them to allow P contact with TQ at reasonable hours of the day.

In A (fact-finding) [2019] EWCOP 58, a judgment published this week though made in September, the judge said the court had been asked to deliver a judgment “as to findings made following the evidence, in view of the serious concerns which have arisen, notwithstanding the ultimate agreement of the parties on all issues save for costs”.

P was represented by the Official Solicitor, who had noted in her written submissions: “A common concern throughout the evidence of all [BCY and CCG] witnesses was a lack of understanding of the principles of the MCA 2005 and the need for proper person centred decision-making in relation to P.”

She also criticised two trust staff for having made unsubstantiated accusations that TQ had failed to promote P’s best interests and that TQ had made the deputyship application to gain financial advantage.

HHJ Clayton said: “Sadly, I found [the staff member] to be driven by a policy decision that TQ should play no part in P’s adult life as she had cared for him professionally in the past, to the exclusion of all else.

“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.”

The judge concluded there was “a pursuit of a flawed policy by both BCT and the management at Placement 1 and that the CCG, in failing to challenge the decisions taken acquiesced in them. The pursuit of this policy was a fundamental flaw.”

He went on: “The failure to comply with the MCA 2005 was not a technicality. It led to a wholesale failure of best interest decisions in respect of P as to his contact with TQ.”

The benefit to P of having TQ as his deputy was “obvious”, and she had “demonstrated an unwavering commitment to P and his right to have his voice heard…I have no hesitation in appointing her [deputy].”

Costs were awarded in equal shares against the trust and CCG because “I cannot escape the inevitable conclusion that this application was only made by TQ as a result of P’s rights being violated and her despair at the failings of the system,” the judge ordered.

Mark Smulian

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