London Borough of Lambeth v MCS & Anor [2018] EWCOP 14

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the incapacitated person and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.Case No 12999324[2018] EWCOP 14
COURT OF PROTECTION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 31/8/2018
Before
MR JUSTICE NEWTON
Between
LONDON BOROUGH OF LAMBETHApplicant
Catherine Rowlands (instructed by Legal Team, Lon Bor Lambeth) for Applicant and Second RespondentSophia Roper (instructed by Leigh Day) for First RespondentHearing Hearing dates: 6 October, 16 November, 13 and 19 December 2017, 15 and 23 January 2018
JudgmentMr Justice Newton :
[1]This application, brought in the Court of Protection, relates to P, a 55 year old woman who originates from Columbia. On 1 May 2014, approaching 4 years ago, whilst waiting at a bus stop, she collapsed and but for the prompt actions of a member of the public who commenced CPR, would likely not have survived. Paramedics arrived, P was found to have suffered a cardiac arrest.[2]P was taken to St Thomas’ hospital who diagnosed narrowing of the arteries to the heart; she had emergency bypass surgery the same day. Subsequently P was diagnosed as having sustained hypoxic brain injury as a result of oxygen starvation to the brain when she collapsed.[3]P was treated in ITU, her recovery was slow. On 1 September 2014 she was transferred to the Royal Hospital for Neurodisability in Putney, where until very recently she has remained - a period of 3 years and 5 months. Tragically, P displays all the classic signs of hypoxic injury, that is to say, severe cognitive impairment with memory problems, speech problems and physical difficulties requiring significant care input. For the most part there has been no question a) as to P’s capacity, pursuant to sections 2 and 3 of the Mental Capacity Act 2005, P does not have capacity, she has though been absolutely consistent, and at every opportunity has made abundantly clear her wishes to be able to return to Columbia, where she would have the care and support of a large and concerned extended family. Significantly over time P has made significant cognitive improvement such as to allow her to vent her frustration, whether it be with language (she is a Spanish speaker and does not understand English), her impairments, or the care plan provided to her; or b) when considering section 4 of the MCA 2005 that it was in P’s best interests to ne repatriated to Columbia.[4]The documents do not reveal a clear picture, but it appears at least likely that P may have been ready for discharge in 2014; self evidently by the date of P’s assessment on 9 January 2017 P was clinically stable and ready for discharge. In fact I am certain that those conditions arose much, much earlier. It should be recalled that the original application to the Court (made by P’s RPR) was itself an application dated 20 December 2016, challenging P’s deprivation of liberty, pursuant to section 21A of the Mental Capacity Act 2005, made out of frustration because, despite the local authority and the Lambeth CCG supporting P’s wish and desire to return to Columbia, they had simply failed to progress it. “Support” has always been offered, and is still, but when something concrete had to be done, they have been found wanting. Even with the institution of proceedings, it has taken a year to achieve what should have been organised much, much earlier, and significantly, proceedings should have been, and were, unnecessary; all of this could and should have been achieved outside any application.[5]As long ago as 17 September 2014 P was recorded as saying unequivocally that she wished to return to Columbia. The original prospective discharge date (of 24 November 2014) passed, by 14 January 2015 the plan (for repatriation) was still inchoate and identification of an appropriate community placement in the short term was being investigated. A consistent theme recorded in every document is how very much better P functions, and is so much happier, when she can communicate in Spanish. On 29 October 2014 P’s assessed needs record “as detailed in previous sections, a Spanish speaking environment is essential for P’s participation, care and wellbeing” and “Spanish staff should be available 24 hours a day with regular attendance for monitoring.” Even that basic need and requirement has not been provided.[6]There has never been any formal provision supporting P’s need for Spanish speaking staff, which at best has been provided on an ad hoc basis. P is distressed by receiving care from people who cannot speak Spanish, this has happened almost every day, several times a day, for over 3 years. It takes very little imagination to consider how additionally miserable and isolated she must have felt. Reports describe her as distressed, feeling like she is drowning, feeling scared, complaining of pain, each impacting severely on her everyday wellbeing.[7]The minutes of the meeting of January 2017 are the earliest seen by me, setting out in a focused way the balancing factors (that focus no doubt assisted by the very recent Court application made by P’s RPR).[8]The document reads:
“In the two years that P has been resident at RHND she has consistently indicated that she wishes to return to Columbia to be near her family. Her family have also stated during this period that this is what they would wish to happen. P’s family all live in Columbia, and visit the UK to see P when they can.” “During this period some work has been undertaken by RHND and Lambeth CCG to organise P’s repatriation, although a plan has not been finalised.”
[9]Having now had several hearings (in an application that itself was, or should have been, as I have said, unnecessary), I can only begin to imagine P’s sense of frustration and loss at being kept here for years against her wishes, and for no good reason. As even the proceedings have demonstrated so fully, the arrangements could and should have been established and implemented long ago, years ago, but because of disorganised, muddled and unfocused decision making, and what has at times verged on an arrogance, P has just had to wait. It should be remembered that P had been kept here against her wishes, at a cost to the taxpayer of over £2,000 per week. If the authority had done what it should have done in a timely professional manner, not only could they have saved themselves over £100,000 a year, and saved the cost to the taxpayer of these protracted High Court proceedings, they could have avoided P the years of misery from being kept a prisoner here, against her will.

The proceedings

[10]In the original application, made by P’s RPR, she considered that CCG bore responsibility for funding and should be joined as a party. That did ultimately occur but I am not sure with much enthusiasm or result.[11]Initially, astonishingly, the local authority responded to the application to seek to have the proceedings dismissed on the basis that P now had capacity to make decisions about where she should live. I am not at all sure that that contention does not in fact make the situation worse. The Special Visitors Report of 13 March 2017 however, put that notion to bed.[12]On 2 May 2017 the Court gave directions for the filing of a statement setting out the options for P’s case and residence. Despite the passing of more than 3 years since P’s collapse, the authority made a formal application for more time to “complete investigations”. No doubt in an effort to deflect criticism the grounds in paragraph 2.2 also state:
“The applicant considers the relevant person’s best interests are properly addressed by repatriation to her native Columbia subject to suitable placement being located and funding being assured. The applicant will fund the cost of repatriation.”
The applicant believed those enquiries would be completed in 4 weeks (i.e. by early June). On 13 June 2017 the Court made a further order, adjourning the application again, and for the applicant to provide more information.[13]By the hearing of 14 August 2017 the second witness statement was now available (dated 27 July 2017), wherein it was clear that very significant additional enquiries remained outstanding, and for the first time, raising that the authority may no longer consider that it was in P’s best interests to move P to Columbia, partly because it was said that the Columbian authorities had not been supportive – subsequently this proved not to be the case at all. The evidence filed did not comply with the Court order (in particular whether P could in the interim or longer term be moved from RHND). Nor did it provide sufficient evidence for the Court’s decision, to identify the options for P which were financially sustainable, and what support may be available in Columbia. Additionally, no real assessment or evidence of her wishes and feelings, values and beliefs had been carried out. The options were clear, and had been clear for years: a return to Columbia if the care and practicalities could be put in place, a move to a community based nursing home in the UK, or a move to a nursing home in Spain where at least P could communicate.[14]The direction of the claimant, and therefore the focus, was on Columbia, but no other option to ameliorate P’s situation was investigated, even on a short term basis. Even at that stage, 8 months into proceedings, and with two requests for more time to complete its enquiries, the authority was still a very long way from being able to present a coherent plan to the Court for repatriation. Its efforts were unfocused and frankly facile, and, as a result, predictably ineffective. Despite scatter gun enquiries, the authority had not had any contact with the Colombian Embassy in London, nor the hospitals in Columbia suggested by the British Embassy. Most of the effort appeared to have concentrated on internet searches and Google translate. Information of P’s family in Columbia too, whilst obtained, was sketchy. In fact, quite a lot had been achieved by the family themselves in Columbia, but the authority was unaware of much of the progress that they had made.[15]The position statements filed on behalf of the applicant were short in the extreme, short on detail and short in substance, identifying baldly the issues and requesting further adjournment.[16]In the event the Court had no alternative but to make a further extensive order including (because of jurisdictional issues) for the matter to be heard in the High Court. I was therefore first seized of the matter on 6 October 2017. Even at that hearing the applicant had still not addressed the key question, stating: “The RHND are not able to comment on how P would cope in a less specialist environment” – such as was likely to be provided in Columbia. The available information from the identified care home had not been assimilated, let alone received by the applicant.[17]P’s representations, through the Official Solicitor, deeply anxious about the lack of progress and likely timeframes, argued for urgent consideration of interim proposals. The authority countered that “it would not support an interim placement” on the basis that it considered this not in P’s best interests. No evidence was, or has been, proffered and it appeared to me to be little more than an asserted justification that no real consideration had ever been given to any interim alternative at all, notwithstanding P’s continuing distress, and the painfully, painfully slow progress in achieving her repatriation.[18]Once again directions were sought detailing the options for P’s discharge in the short and long term, her care needs here and in Columbia, whether she could be safely, properly cared for there, and confirmatory evidence to progress the move to Columbia. I again made extensive directions.[19]At the hearing on 16 November 2017, very distinct progress towards repatriation had finally been achieved. Frustratingly, there were however, still significant details missing, not just an interim plan if there was a delay, but there was no detailed transition plan. I have seen some of the documents in relation to this and they are depressingly scant; frankly, they are unedifying. I entertained the hope, since the remaining matters seemed really very straightforward, that it might even have been possible to agree a draft order encompassing the transfer to Columbia and the deprivation of liberty involved in that move. Accordingly I felt able to make qualified declarations (including being transported to Columbia). But a detailed and realistic transfer plan was obviously still necessary. A proposed draft transfer schedule was provided for that hearing, but it was a poor document lacking any detail, proposing transfer on 20 December 2017.[20]In view of the history, the shocking history, I made provision for a “long stop” hearing on 13 December 2017 whilst sitting on circuit (hoping still to retain the transfer date of 20 December 2017). I do not think I ever received a position statement from the applicants, who attended by new counsel, who had been inadequately instructed. No one from the applicants, CCG or solicitors had the courtesy to attend. To say this was unfortunate (leaving aside any other issues) is an understatement. No transfer plan had been filed, and important missing detail prevented any progress being achieved. No one appeared to be qualified to make what in some instances were trifling decisions involving a few hundred pounds, e.g. innumerable communications occurred over the provision of, cost of, source of, import duty on, or who should pay for the transport of a wheelchair so urgently required by P, far, far exceeding the cost of the chair itself. Information was given to the Court in relation to, for example, the air ambulance, which subsequently appeared to be wholly misleading and totally without foundation. The approach taken was unhelpful and, at times, verging on petulant. Despite my best efforts it appeared to reflect a deeper, most unfortunate perspective that has, from time to time, permeated these proceedings. In any event, as I say, no one had the courtesy to turn up, so nothing constructive could be achieved at all. Yet again the case was listed for hearing on 19 December 2017, making detailed and contingent directions.[21]At that hearing, absolutely astonishingly, I was told that, whilst the CCG had approved funding for P’s flight to Columbia, it had arranged its meeting inter alia in relation to the cost of transporting the wheelchair and any import duty in Columbia (see above) for 20 December 2017, the following day - apparently those concerned were rather busy with other meetings. An additional issue concerned the provision for the cost of any care if P was taken ill on the flight; who would pay, was it possible to obtain insurance? The authority, in common with its actions before and since the institution of proceedings, conducted itself without regard to anything else, certainly not the welfare of P, and yet further evidence that the institution of proceedings had had no effect. They have had no regard to Court orders, or the involvement of the Court. This hearing occurred just a day short of the first anniversary of the issue of proceedings, and still the simple goal seemed a mile away.[22]In exasperation I joined Lambeth CCG as a second respondent and made yet more directions.[23]Finally, on 15 January 2018, it was possible to approve a final order. Contrary to previous occasions when either no one attended, or those present had not obtained delegated financial responsibility, on this occasion, what should have occurred much, much earlier, probably years ago, was obtainable, and significant assurances and undertakings were forthcoming for the provision of care in the unlikely event P was taken ill in transit and required hospitalisation en route. All that should have occurred several months earlier and it is entirely symptomatic of the malaise which has beset these proceedings from the outset. For which P has been the unhappy victim, and the Applicant entirely responsible.[24]P left the UK on 25 January 2018 by air ambulance. Her move is described thus:
“The move went very well. There were no health concerns en route. P remained calm, restful and slept during the journey. The ambulance crew were extremely impressive and efficient. The doctor could speak Spanish. Upon arrival P “recognised many of her relatives and smiled all over her face.””
Finally, a happy ending to a tragic story.[25]I set out a summary of these unhappy proceedings, not just because they should not have been necessary, but to highlight the very deeply frustrating and disorganised thinking, planning and management within the authority. As a result a vulnerable adult has been kept unnecessarily miserable against her will, confined in an environment for much longer than was necessary. In my best estimate, for 3 years.[26]With those short observations, I invite the parties’ submissions on costs.