Re KW [2015] EWCOP 53

The issue here concerned the placement of an incapacitated person and the effect of the geographical location on family contact. The court had to consider whether more appropriate accommodation should be sought. 

There was a challenge to section 21A and Care Act 2005 (DOLS) and a consideration of capacity (the P's sister did not accept the expert's evidence).

Background
KW is 49 with complex needs. She has a diagnosis of learning difficulties, cerebral palsy, epilepsy and acquired megacolon.

KW resided in Lincoln from 1987 to 2003, and then moved to Cambridgeshire into a residential placement. In 2009 DW (KW’s sister) moved her to London where she remained until the care home gave notice to terminate the placement in 2010. Since 2010 KW has resided in South Yorkshire and a standard authorisation was made by the local authority on 15 August 2014 and 12 February 2015.

Expert evidence was commissioned by way of an independent social worker to advise on KW’s best interest in relation to residence, care arrangements and contact. The chartered clinical psychologist was asked to advise amongst other things as to KW’s capacity to make decisions about with whom she has contact – he concluded that given KW’s brain damage KW will not attain capacity to make any of the relevant decisions in the future. This report was accepted by all parties and was not subject to challenge during the hearing. The ISW concluded that it was in KW’s best interest to remain in her present accommodation - that being in South Yorkshire - and recommended DW be encouraged to work with staff at the accommodation and have regular contact with KW. He opined that the local authority should continue to explore alternative residential and supported living provisions for KW in South Yorkshire and the surrounding area of Rotherham, in order to provide KW with continuity for her clinical support, social and recreational services. DW did not accept the conclusions of the ISW and in terms of KW’s expressed wishes was of the view that wherever KW was she would wish to stay and that KW was capable of saying whatever she thought people wanted to hear. DW also said that if KW stayed in the present accommodation she could not be the RPR (relevant person’s representative) due to cost of travel, her mother’s health issues and practical domestic issues and could not maintain regular long-term contact.

The local authority accepted that there had been errors made and in particular not following the ombudsman’s request to have the matter referred to the  Court  of Protection, by not challenging inconsistent DOLS and capacity assessments and not seeking clarification of KW’s capacity until court proceedings were underway.

Decision
The court accepted the evidence of the ISW including the expressed wishes and feelings of KW which the court found on one occasion at least had been offered unprompted. The court considered that the balance sheet approach was a carefully measured assessment (the ISW had been criticised by DW). The court found that DW would never be happy with any of the care regimes and that DW would seek a council of perfection, but there was no doubt that without doubt her intervention the case would not have come to court. The court found clear evidence of a breakdown of trust and communication between the local authority, care home and DW.

The court noted the history of failings by the local authority to fully understand and then act upon their duty under the Mental Capacity Act. It noted that with hindsight KW should not initially have been moved to Rotherham, there should have been more detailed discussion with the family members and a wider search for an appropriate placement. However the court noted significant disability and physical health issues suffered by KW and found that KW required a consistently provided care plan that included appropriate behavioural support designed to enhance her independence and ensure her own emotional well-being and safety. The court however accepted the ISW’s clear view that the present placement met KW’s assessed needs and the local authority have agreed that the need for a longer term placement will be considered at each review.

In terms of contact, whilst accepting that family contact is important and considered so by both social work team and ISW, court was not persuaded that this required further weight to be given to the issue of contact so as to cause an adjustment in the balance sheet. The court accepted the provisions of section 37 of the Care Act, as advocated by DW. The court accepted that is would be impossible to make a declaration that KW moved to a certain geographical area as this would be straying into the making of hypothetical decisions. The court found there was no option currently before the court or indeed the likelihood of a further option in the foreseeable future such as to permit the court to consider such a declaration (Re MN [2015] EWCA followed).

In terms of schedule 1A (the DOLs authorisation) the court accepted the evidence of the ISW and therefore the challenge was dismissed. The court noted the willingness of the social worker to recommend a review of transport policy (to assist with contact) and the court expressed a hope that the local authority would do what they could to facilitate a number of visits a year for DW and the family.

Discussion
This case is interesting in that it required the challenge to a DOLS authorisation by a family member to bring the matter before the court where in essence the challenge was not so much about the deprivation of liberty as to the geographical placement of KW some distance from the rest of the family. It is clear that the local authority had failed to act in accordance with the findings of the ombudsman and yet there is nothing in the judgment to indicate that there are costs implications for this failure by the local authority to follow the ombudsman ruling. It is equally interesting to note that DW, who was clearly the RPR, had stated in evidence she could no longer retain that role due to the costs of travel etc (paragraph 41).

Nothing was said in the judgment about this position even though of course it is a matter purely for the local authority in that regard. However given the paucity of action by the local authority in this matter one might have considered the court would have made some comment about it.

This case also highlights yet again the preference of independent expert evidence as against that of family members who clearly wish to maintain contact with their relative, and the geographical distance between London and South Yorkshire would be, by any stretch of the imagination, onerous.

Read the full text of the judgment on Bailii