A (fact-finding) [2019] EWCOP 58

Judgment relating to costs arising from an application by TQ to be made to be made a health and welfare deputy. She is the former key worker for P. P has a life long diagnosis of Lennox-Gastaut Syndrome (a severe form of epilepsy), cannot walk, requires 24 hour care and has no contact with family members.

The Court had been asked to make this judgment because of the failings of the Birmingham Children’s Trust (BCT/Trust) and the third respondent, the NHS Birmingham and Solihull Clinical Commissioning Group (CCG) who had initially sought to place restrictions on TQ's appointment. Broadly their statements lacked detail and were 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.

After reviewing the progress of the proceedings HHJ Clayton comments at [24-25] that:

"24 The Mental Capacity Act Code of Practice sets out precisely what should be recorded by those professionals involved in the care of a person who lacks capacity when working out the best interests of that person for each relevant decision. Records should be made of how the decisions were reached, why the decisions have been taken, who participated and what particular factors were taken into account. The record should remain upon the person’s file.

25. 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; 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."

In that context, she

"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, of which she knows a great deal, as a professional carer for P previously and a continued professional carer for other young people lacking capacity."

She therefore concluded that the costs of the OS should be born in full by the BCT and the CCG.

Read the full text of the judgment on Bailli.