The London Borough of Islington v AA & Ors [2018] EWCOP 24

This judgment is covered by the terms of an order made pursuant to Practice Direction – Transparency Pilot. 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.Neutral Citation Number: 2018] EWCOP 24Case No 13110467
COURT OF PROTECTION
Date 05 July 2018
MENTAL CAPACITY ACT 2005
IN THE MATTER OF HB
First Avenue House
42-49 High Holborn,
London, WC1V 6NP
Before
Her Honour Judge Hilder
Between
THE LONDON BOROUGH OF ISLINGTONApplicant
S. Rivers, solicitor of London Borough of Islington for ApplicantB. Harris, (instructed by Leigh Day Solicitors) for First RespondentSecond, Third and Fourth Respondents in person for in personHearing Hearing dates: 2 nd, 3 rd& 4 th July 2018
JUDGMENTThe hearing was conducted in public subject to a transparency order made on 28 th July 2017. The judgment was handed down orally on 5 th July 2018. This written version consists of 19 pages and has been signed and dated by the judge. The numbers in bold typeface and square brackets refer to pages in the hearing bundle.
[1]I am concerned with the best interests of AA. The London Borough of Islington has made an application for the Court to determine where she should live.[2]On Monday, Tuesday and Wednesday of this week, I heard evidence and submissions. I am giving this judgment orally on Thursday afternoon, so that the three Respondents who require interpreters will hear the Court’s decision in their own language as soon as it is delivered. When I have finished giving oral judgment, I will hand down a typed note of the judgment, so there is no need for any of the parties to be taking notes.

Matters considered

[3]I have considered all the documents in the hearing bundle. They include:a. Statements On behalf of the Local Authority Applicant: Phillipa Jordan, Social Worker, dated 25th July, 26th July 2017, 15th November 2017, 12th December 2017, 17th February 2018 Amir Kisitu, Social worker, dated 25th July 2017, 15th November 2017, 13th December 2017, 20th June 2018 Dawn Pelle, dated 27th July 2017 Sean Rivers, dated 3rd November 2017, 20th November 2017, 18th December 2017 Lauren Richman, undated [G86], 24th April 2018 Connor McIntyre, dated 18th May 2018, 8th June 2018 Paul Critchley, dated 29th June 2018b. Statements on behalf of AA: Anna Moore, dated 20th November 2017, 16th February 2018, 7th March 2018, 22nd May 2018, 18th June 2018c. Statement on behalf of BA: BA, dated 19th December 2017d. Expert reports: Dr Benjamin McNeillis, COP3 assessments dated 6th July 2017 Dr Joanna Curwen, dated 12th October, 6th December 2017, 19th December 2017 Professor Killaspy, undated [I43][4]I have heard oral evidence from Phillipa Jordan, Amir Kisitu, Lauren Richman, Paul Critchley, BA, BB and BC.[5]AA’s participation in these proceedings has been secured by her representation by the Official Solicitor as Litigation Friend. I have not met AA in person but I have read the attendance notes of her solicitor, Anna Moore.

Factual background

[6]AA was born on 8th June 1972, and so she is now 46 years old. She came to England from Bangladesh at the age of 8. She is of Muslim faith, and her first language is Sylheti. The Second, Third and Fourth Respondents are her brothers.[7]AA was married, sometime around 1995 at the age of 23. She has two children, born in 1998 and 1997 respectively. That marriage has come to an end. The circumstances of the ending are not clear but one way or another AA returned to live with her mother and brothers, without her husband and children, in 2012. She has not seen her husband or children since.[8]Sometime around 1995, AA was diagnosed as suffering from schizophrenia. She has had intermittent contact with mental health services since then. In August 2014 Phillipa Jordan became the Care Co-ordinator for AA. She initiated a home care package, which lasted for a few months.[9]In March 2015 AA was detained under section 2 of the Mental Health Act for assessment. Seemingly because of resource issues, she was placed in a private out of area facility, and the placement proved to be very short. AA was discharged without an agreed care package.[10]In June 2015, carers from the Snowball Care Agency started providing care for one and a half hours on each of 3 days per week, and one day of the weekend. BA was actively engaged in the selection of this particular care agency.[11]In July 2016, AA was admitted to Whittington Hospital. The medical assessment of Dr Jessica Ellis, dated 19th July 20-16 [G40] states that AA was “Admitted with bowel obstruction secondary to undiagnosed obstructing tumour diagnosed on CT. Taken to theatre for emergency defunctioning colostomy and subsequently was admitted to ITU for HDU support. Severely malnourished on admission, very underweight and unkempt….Upon refeeding, developed profound refeeding syndromerequiring readmission to ITU. Thiswas corrected with careful feeding regimen and electrolyte replacement. She has recovered well…”[12]AA was discharged, in August 2016, to C Lodge for nursing care, with the agreement of her family. She stayed there until a further hospital admission in March 2017, and then again she was discharged to C Lodge in April. For a while, she made trips back to the family home for contact. On one occasion, in June 2017, the family failed to return her for several days, until the social services intervened.[13]On 6th July 2017 AA is said to have disclosed to a psychiatrist and a social worker that her brothers abused her. The brothers do not accept either that she described abuse, or that any abuse occurred.[14]On 25th July 2017, BA took AA out of C Lodge for a walk, and did not return her. When the social worker and police visited the family home, AA said that she wanted to remain there and not return to C Lodge. Three days later, these proceedings were begun.

The proceedings

[15]These proceedings began with three applications, all dated 27th July 2017. One application was made on form DLA in respect of an Urgent Authorisation of deprivation of liberty at C Lodge granted on 24th July 2017. The other applications were made on forms COP1 and COP9, and sought orders for the return of AA to C Lodge.[16]An attended hearing was held on 31st July 2017. AA was not represented at that hearing. Only preliminary directions were made. The brothers agreed to give the Local Authority access to AA in the family home.[17]On 1st August 2017 AA was assessed by Dr Cameron Ryan as having capacity to decide where she should live. Consequently, the DOLS authorisation fell away. At the next attended hearing on 11th August 2017, the proceedings were reconstituted to continue as a s16 application. AA herself was still unrepresented.[18]On 3rd November 2017 the London Borough of Islington made a further COP9 application seeking authority specifically to remove AA from the family home and for her to reside at HV Rehabilitation Unit. Further directions were made on the papers on 9th November and the on 24th November an attended hearing was held at which AA was for the first time represented through the Official Solicitor acting as Litigation Friend. More specific directions were made, including for a capacity report pursuant to s49 of the Mental Capacity Act, and for disclosure of records.[19]The matter then came before me on 14th December 2017. Directions were given for clarification of Dr Curwen’s report and for statements from all parties. Arrangements were made for AA to visit HV Rehabilitation Unit and the matter was listed for a contested interim hearing on 20th December 2017.[20]At the hearing on 20th December, AA’s brothers were unrepresented. They had assistance from the Personal Support Unit and each had an independent interpreter. The Court determined, for reasons that were given at the time, that AA should move to HV as an interim measure as set out in an approved transition plan. The order included provision for contact with AA’s mother at the family home and with other family members in accordance with her wishes at the HV Unit. A transcript of the judgment and its translation into Sylheti was directed at public expense.[21]The move did not take place as directed. The Local Authority made a further COP9 application, dated 21st December 2017 and the matter was listed for hearing the following day. On 22nd December 2017, the Court approved an amended transition plan and made orders with a penal notice attached requiring AA’s brothers to allow access to their home for AA to be collected by staff from the social work team, to encourage and support AA to move in accordance with the transition plan, and not to obstruct the transition plan. This time, AA did move to HV, apparently without difficulty or distress.[22]Sadly, within a few weeks, AA’s mother died.[23]At the next attended hearing on 28th February 2018, contact arrangements were altered to provide for AA to be given the opportunity to have contact with her brothers in the family home at least 3 times per week, each visit to last between half an hour and 2 hours at the discretion of the accompanying carer. Additional contact was to be facilitated in the communal areas of HV in accordance with AA’s wishes. Directions were given to progress the matter to final hearing.[24]At the final case management hearing on 24th May 2018 the Court was informed that the Local Authority planned to “introduce interpreters to work with carers at the unit instead of S agency carers but that the arrangements for carers to visit the family home shall remain the same.” The timetable had to be redrawn to provide for delay on the part of the Local Authority in filing the Scott Schedule of findings of fact which it sought but the final hearing date in early July was preserved.[25]Unfortunately, there were then some significant developments in the state of AA’s physical health. On 1st June 2018 AA attended the Whittington Hospital and was informed that there was a lesion on her liver, indicating that her cancer may have returned and she required further tests. Over the next few days she was observed to become increasingly distressed. On 5th June, when it was time to end her home visit, she refused to return to HV. On 6th and 7th June both medical and social work staff visited AA at home and tried to persuade her to return, without success. Dr Hanlon felt unable to assess AA’s capacity but concluded that AA appeared very happy at home, only becoming distressed when return to HV was discussed.[26]The Local Authority made a COP9 application to the Court, seeking orders to return AA to HV. There was an attended hearing on 20th June. The Court determined that, in the interim period before the final hearing, it was in AA’s best interests for her to remain living in the family home, with the Local Authority providing carers 3 times a day, 7 days a week, for a total of 4 hours each day. Arrangements for AA’s attendance at a further medical appointment on 22nd June were set out, and the Local Authority was required to file by 28th June a Care Plan setting out the care that would be provided in the event that the Court decided at the final hearing that AA should continue to live at home, rather than returning to HV.

Capacity

[27]The Local Authority and the Official Solicitor agree that AA lacks capacity to litigate these proceedings and to decide where she should live and receive care, the contact she should have with others, and the management of her property and affairs.[28]The unrepresented respondents have not put it in those terms but it is clear that they accept that AA is not able to make decisions for herself because of her mental ill health. They have not challenged the expert evidence.[29]I have considered two COP3 assessments by Dr McNeillis, a s49 report by Dr Curwen, with supplementary responses to further questions, and the report of Professor Killaspy. Although it is not in the bundle for the final hearing, I have previously read the one assessment, by Dr Cameron Ryan, which took a different view as to AA’s capacity to decide whether to live in a care home.[30]I accept the evidence of the medical experts that AA suffers from paranoid schizophrenia, which has affected her cognitive functioning, and additionally (although perhaps not constantly) clinical depression. I accept the more up to date evidence of Dr. Curwen and Professor Killasby over that of Dr Ryan as to how that mental impairment currently affects her functioning. I am satisfied that AA presently lacks capacity in all those domains in issue in these proceedings.

Fact finding

[31]The Applicant Local Authority has filed a schedule of allegations [J28] on which it asks the Court to make findings of fact. In her position statement, Miss Harris has drawn the Court’s attention to various ‘principles on fact finding’ in the following terms: “The standard of proof is the balance of probabilities. Findings of fact must be based on evidence including inferences that can be properly drawn from evidence. The court must take into account all the evidence and consider each piece of evidence in the context of all the other evidence. “[32]She cites the decision of Baker J in A Local Authority v M and Another [2014] EWCOP 33:
“Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to the other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof.”
[33]In considering the Local Authority’s schedule of allegations, I adopt the approach set out in Miss Harris’ position statement.[34]The allegations are collected under three separate headings – financial, neglect and physical/verbal abuse, with each allegation numbered. The Second to Fourth Respondents were provided with a Sylheti translation of the schedule. Their written response was “…we will not make any comment, as there is no reasoning or evidence behind these allegations, it is only written on paper. So our response is ‘no comment’.” In oral evidence, BA gave the primary account of the brothers. BB and BC confirmed that they agreed with everything he had said.[35]The neglect and abuse allegations are fundamental to the financial allegations, so it is helpful to consider those first. (The number of each allegation is given in round brackets; the reference to case notes in { }.)[36]Neglect allegations: Number 14 is unintelligible and number 16 was withdrawn. The other allegations are thata. From August 2014 – 19th June 2016, AA’s brothers severely neglected her (7). In particular, they failed to provide adequate food (10) and clothing (11), and left her in unsanitary and unhealthy conditions (12).b. In February 2015, AA’s brothers refused to allow carers into the house and threatened them (8);c. From March – June 2016 (9) and again in November 2017 (18), AA’s brothers failed to obtain adequate medical treatment for her;d. AA’s brothers allowed her to go unbathed for 5 years (13);e. On 6th October 2017 there were faeces on the wall of AA’s bedroom and her hair was greasy (15);f. On 10th November 2017, AA was found to be weak and appeared not to have eaten for days (17);g. AA’s brothers failed to cooperate with the order made on 21st December 2017 that AA move to HV Unit (19).[37]The earliest of these allegations relates to the time when Phillipa Jordan was first allocated as AA’s care co-ordinator. Her evidence [G7] was that “When I first met [AA], she was extremely unkempt, her hair was matted, her clothes had not been changed for months, her sari was covered in blood from menstruating (as was her bed), her nails were long and filthy and her teeth in extremely poor condition.”[38]That is indeed a dire and distressing description. In the context of the current application, it may be considered somewhat surprising that the Local Authority response was a decision “to try and support [AA] at home” [G7]. A care package of 4 visits a week was arranged, and Ms. Jordan’s evidence is that “there was evidence of improvement in her personal appearance and she was in different clothing during my visits” [G7].[39]However in February 2015 Ms. Jordan was sent an e-mail [G14] by one of the carers which stated that:
“..situation has got very bad at the home. [AA] is on her menstrual cycle and she has no sanitary towels, this is really upsetting for [AA] and the carers, there is blood everywhere on her clothes and bedding, then no clothes to change into or clean bedding… The carers are unable to do anything, she has nothing, no food, clothes, bedding, cleaning products, we may have to stop the service as the neglect is just too much….”
[40]The e-mail is unsigned, and there is no sworn statement from the person whose name is at the bottom. Ms. Harris cautions that it has therefore not been tested in evidence and it is not possible to form a view as whether there has been overstatement or exaggeration. Notably, it was shortly afterwards that AA was detained briefly under section 2 of the Mental Health Act.[41]After her discharge, from June 2015, the care notes do not describe a general picture of neglect. A care package of one and a half hours a day for 3 days per week and 1 hour for one day of the weekend was agreed {28}. Over the course of the notes, it can be seen that, although he sometimes had to be reminded and was not always on time, by and large AA’s brother took her to appointments for her depot injection.• On 18th June 2015 it is noted {27} that AA “presented as quite clean and tidy in her appearance”;• On 3rd July she “looked quite well, she presented as smartly dressed, her hair tidily combed..” {26};• On 28th July it is noted {23} that AA’s “personal care [is] much improved although still not going out….hair was unwashed today but otherwise clean.• On 7th August “she presented as smartly dressed” and on 20th August “she was well presented, her clothes were clean…” {21}• A home visit was made on 19th November 2015 and the worst that was noted of the home environment was “sparsely furnished; rather untidy, with various household items piled in the hall.” {19}• On 2nd February 2016, it is recorded {13} that AA’s brother informed the medical staff that AA “is neglecting her physical health by not eating adequately” but on 1st March {11} it is noted that AA “presents no issues of concern.”[42]When he gave oral evidence BA was prepared to give more substantive answers to the neglect allegations. As to AA’s condition in August 2014 he was frustrated that it had taken “one and a half years” after AA came to live in the family home “for social work transfer….Through the GP again and again we informed Islington about the deterioration of our sister. We requested a care package as soon as possible.” He said “if she was malnourished for 2 years, how could she survive that long?” He said that the allegations were “not true – if it was true, they would not have trusted us at all. Regarding her illness, ..they should not blame us. We are not doctors, we are not consultants. Whatever was needed for my sister, we have always taken her there.”[43]I am not satisfied that the first allegation is made out on the evidence. I accept Ms. Jordan’s account of AA’s presentation in August 2014 but also BA’s account of having been given no social work support up to that point. I am satisfied that there was a crisis situation at the time when Ms. Jordan first became involved but not that there was “severe neglect” continuing until June 2016. I accept Ms. Jordan’s own account that there was improvement seen when a care package was introduced.[44]I am satisfied that, despite initial improvement, AA’s care needs were not being adequately met in the family home in February 2015. Although I approach the specifics of the description set out in the e-mail with caution because it is unsigned, unsworn and untested, I accept that that carers were raising significant concerns.[45]Shortly afterwards, AA was detained under Mental Health Act powers. After her discharge, I am satisfied that there is no evidence at all to substantiate the allegation of continuous severe neglect. The care notes provide a different picture. I place greater weight on the detailed and contemporaneous records than on generalised account.[46]I find allegations 7, 10, 11 and 12 unproven. I find that, in August 2014 AA was in a state of health crisis and her family was failing to cope. With some social work support AA’s living and care arrangements improved but there was a further crisis in February 2015 which lead to a period of detention under the Mental Health Act. After discharge, there were some deficiencies in the care of AA but a basically adequate level of care was provided by her family.[47]Chronologically the next allegation is that in February 2015, AA’s brothers refused to allow carers into the house (8). Ms. Jordan’s evidence [G8] was that “following a safeguarding concern regarding the children living in the house by the care team, [AA’s] brother refused to allow the care staff into the house and he became very threatening towards them, shouting that they had no right to call social services.” It is not suggested by Ms. Jordan that she personally witnessed any threatening behaviour or shouting, and there is no direct evidence from the carers.[48]In his oral evidence, BA said this “was made up” and he was “not aware of any concern raised about children in the house.”[49]I find allegation 8 only partly proven. I find that there was a breakdown in the care package in February 2015 and that BA refused to allow the agency then engaged to continue to provide care in the home. To that extent, I prefer the evidence of Ms Jordan because this is within her sphere of knowledge and consistent with other events, namely the subsequent period of Mental Health Act detention and the use of a different care agency afterwards. However I am not satisfied, because there is no direct evidence, that BA behaved in a threatening manner.[50]Allegation 9 concerns the run up to AA’s admission to hospital in June 2016. The schedule identifies the evidence relied on by the Local Authority as the safeguarding conclusions report and the witness statement of Amir Kisitu [G31].[51]Mr. Kisitu’s written evidence [G31 - 32] was that he visited AA’s home on 13th June 2016 and found that she was “unkempt, looked confused did not even know what day of the week it was…she had lost a significant amount of weight, clearly looked malnourished…she complained of bloated stomach and incontinence, there was no evidence that her family had taken her to see her General Practitioner despite being advised to do so in previous meetings with me held on 20th May 2016 and 3rd June 2016….. A decision then was made by me and Susan to contact Ambulated care and [HB] was referred there and then to Whittington A&E department. [AA’s] brother did cooperate on this occasion, he escorted her to the Ambulated care service.”[52]The case notes indicate that:• AA was seen by the GP with her brother on 22nd March 2016 {7}. Recommendation number 5 states “PLEASE COULD YOU ARRANGE TO SEE PATIENT DUE TO FAMILY’S CONCERNS THAT SHE IS GOING TO THE TOILET VERY FREQUENTLY OVER THE PAST TWO WEEKS.”• On 20th May {4} Mr Kisitu noted “Her brother reports she has reduced vomiting, has been given treatment by her GP.”• On 3rd June {3} Mr Kisitu noted that “It seemed as though her brother has not took her to see GP as agreed on our last visit”• On 13th June {3} Mr Kisitu’s note records the reference to Ambulatory care, and Susan Cummins’ note records that HB “has presented and bloods had been taken.”• On 16th June Susan Cummins’ note {1} records that [HB] “looked better in terms of her colour and overall appearance…. [a brother] said he was ‘told off’ by the ambulatory care Drs and he apparently defended their attendance…I advised him [AA] will be reviewed by our team Drs in a few weeks.”[53]I am satisfied that the evidence of the care notes does not demonstrate “repeated requests by numerous individuals” that the family have AA taken to hospital. Rather it demonstrates that AA was taken by her family to receive some medical attention in the period leading up to her admission to hospital on 19th June 2016. Their reception at the Ambulatory care service suggests that the seriousness of AA’s condition was not apparent to trained medical professionals; and the notes of 16th June suggests that the social care team was content with its own plans for review by a doctor. I find that allegation 9 is unproven.[54]The evidence relied on in support of allegation 18 is the fourth statement of Ms Jordan [G113]. She says that:
“On 13th November 2017 Amir Kisitu and Lauren Richman (Support Worker) had to take [AA] to the GP because despite numerous previous requests to take her to the GP, nothing had been done. We had to arrange the appointment due the relatives failing to do anything apart from say that she is fine and that there is nothing to worry about.”
[55]The written account is then somewhat confused, saying that “Amir and Lauren took her to the GP as the family had failed to do so” but also that “The brother [BA] was there and refused to leave the room…”[56]In oral evidence, Ms Jordan agreed that she had no personal knowledge of these described events.[57]In his oral evidence, BA said that “This is the first time the social worker has told the truth. On that day, we had to take our mother to hospital but [BB] went with the social worker.”[58]I am not satisfied that allegation 18 is proven. The only evidence of it is unclear and secondhand, and even so describes a family presence.[59]Allegation 13 is that AA’s brothers allowed her to go unbathed for 5 years. The only evidence relied on in support according to the schedule is the safeguarding conclusions report. That report quotes [J157] a nursing note of 26th August 2014 in the following terms:
“[AA] presented as quite scruffily dressed, with period stains all over her clothing, her brother informed that it is about five years since she had her last bath.”
[60]BA said in his oral evidence that “we always encouraged [AA] to have a bath.” I understood him to be saying in evidence that they had tried to get her to have a bath but not succeeded, and to be denying any suggestion that the family had actively prevented her from having a bath.[61]Failing for 5 years to ensure that AA was properly cleaned would suggest a less than adequate level of care but I note that this is a self-reported concern. At the time of telling the nurse this, AA had not been living with the brothers for 5 years. It seems to me that what AA’s brother told the nurse should be seen as the family raising a concern, rather than a considered estimate of accurate time-measuring. This is part of the general crisis in August 2014. I am not satisfied that allegation 13 is proven.[62]Allegation 15 is based on the written statements of Ms. Jordan [G62} and Mr Kisitu [G72, G194]. I cannot identify any reference to this incident in Ms. Jordan’s earlier statement and the reference at G194 is to a later statement by Ms. Jordan, where it is set out that “On 06.10.17 – Amir and Charmaine note faeces on the wall in her bedroom. Her hair is greasy and appears unwashed.” In Amir Kisitu’s statement of 15th November 2017 [G70] it is written that AA “is not always managing to get to the toilet on time and there is evidence of faeces on the bedroom wall.” Mr Kisitu does not say what this “evidence” is and he does not say that he has seen faeces on the wall. Even if there were, it would appear that this was an isolated occasion, rather than a general state of affairs. I am not satisfied that allegation 15 is proven.[63]Allegation 17 is said to be evidenced again in the statements of Ms. Jordan [G62] and Mr Kisitu [G72, G194]. Again, the reference at G194 is in fact in Ms. Jordan’s statement and is again a bald statement of second hand account:
“On 10.11.17 – [AA] visited by Charmaine and student. She appeared weak and said she had not eaten..”
[64]The care notes record {48} the home visit on 10th November in different terms:
“[AA] said she had not eaten today.”
The carers’ records {97} record AA being given lunch that day, and the day before, and for each of several days previously. I am not satisfied that allegation 17 is proven.[65]Allegation 19 relates to the order made at an attended hearing on 20th December 2017. That order provides that “AA shall move to reside at” HV but, in terms of any expectations of AA’s family, it does not mandate any particular requirements. AA did not move as ordered and there was a need for a further hearing. On 22nd December 2017, the Court made on order which did spell out specific requirements of the Second, Third and Fourth Respondents - to allow access to their home, not to obstruct any actions by staff in accordance with the transition plan, and to encourage and support AA to move. A penal notice was attached. AA did move in accordance with this second order.[66]The order made on 22nd December records that the Court considered a witness statement by Amir Kisitu dated 21st December 2017. That statement has not been included in the bundle for this hearing and no account of any alleged lack of co-operation by AA’s brothers is relied on by the Local Authority in support of the allegation. Although it is not in doubt that the order made on 21st December was not given immediate effect, there is no evidence before me on which I can be satisfied that HB’s brothers “failed to cooperate.”[67]I find that AA did not move to HV as directed by the order made on 20th December 2017 and that she did move to HV as directed by the order made on 22nd December 29018. I make no finding as to co-operation or otherwise by the Second to Fourth Respondents and to that extent I am not satisfied that allegation 19 is proved.[68]Allegations of verbal and physical abuse: The allegations are thata. Since August 2014 (21), and in particular on 14th April (22), 24th May (23), 6th July (24), 26th July (25), 10th October (26), 27th October (27), 12th November (28) and 5th December 2017 (29), AA has consistently and repeatedly made allegations that her brothers shout at her and that she is scared;b. AA has repeatedly (30), and in particular on 27th October (30). 2nd November (31), 12th November (32) and 5th December 2017 (33) made allegations that she has been hit in the home.[69]At the request of AA’s representatives, it was clarified by Mr. Rivers at the outset of the hearing that these allegations are limited to what AA said; it is expressly not alleged that the content of what she said is true and accurate. The Court is not being asked to make findings of actual verbal or physical abuse. (Lauren Richman said in her oral evidence that “I go on what I’ve been told by AA. I take AA’s word as truth…My opinion is that her report is the truth” but Mr. Rivers did not put his case that way at any stage.)[70]In oral evidence, BA did not accept that AA had said any of the things which she is alleged to have said – “probably it has been misinterpreted.”[71]Miss Harris regarded the question of whether or not AA had said any of the things alleged as adding nothing to the matter – she submitted that, since the Court is not being asked to make findings on the truth of the content of the statement, the statements “just lie there.. they don’t take things any further…”[72]Miss Harris did however point out that AA has also said other things. In particular, the care records of 13th October 2017 {57} record that Ms. Richman asked AA what she had talked about in her review “and she said ‘toilet’. I asked if she spent one hour talking about going to the toilet and she said yes. I said I did not believe this.” On the same occasion Ms. Richman “asked [AA] what would make her happy and she said her brothers, cooking and cleaning, shopping and tv. I asked if she liked her brothers and she said yes because they take her shopping for saris. I asked [AA] why she likes her brothers and suggested I like mine because he is kind and funny. She said her brother is kind. I asked her if she is still scared and she said yes.”[73]In the care records {63} there is an account of an interview of AA on 9th January 2018. It is noted by Miss Jordan that “When I talked about her being [at HV} she said that she didn’t like home because the cooker is not clean and [her] room is so small. She repeatedly asked to go home though. She was very contradictory throughout the appointment on different aspects – I said that she had told us that her brothers hit her and did she want to report it to the police – she said no I don’t they never hit me but then later on in the appointment she told me that hit her (sic) and they fought with each other. She agreed that one of them had tried to strangle her but would not tell me which one. She did confirm that she is scared at home. We had a long discussion about food. [AA] said that she does not get curry at HV and doesn’t eat (contrary to what staff have told me – she eats very well and they have been making curry daily for her.”[74]I accept that the accounts of the professionals as to the subject matter of conversations they have had with AA is likely to be broadly accurate. To that extent, I prefer their accounts to BA’s assertion that such conversations did not take place. I find that AA has on several occasions talked to care professionals about arguments among various people living in the family home, hitting and shouting in the household, and feeling scared. I find that she has also talked of her brothers making her happy. For the avoidance of doubt, I make no finding about the truth or otherwise of what AA has said. Beyond these findings, I am not satisfied that allegations 21 – 33 are proven.[75]With those determinations of the welfare facts, I now consider the financial allegations. Rearranging the Local Authority’s allegations so as to run in chronological order, it is contended that AA’s brothers stole or misused AA’s funds:a. Between 19th April 2012 and 19th June 2016, whilst she was living in the family home, in the amount of £39 312.29 of cash withdrawals and £4 433.62 of other payments from her account;b. Between 19th June 2016 and 13th April 2017, whilst she was in hospital, in the amount of £1 775 of cash withdrawals and £3 651.14 of other payments from her account;c. Between 14th April and 25th July 2017, whilst she was in C Lodge, in the amount of £1 720 of cash withdrawals and £587.10 in other payments from her account.[76]The bank statements have been provided [G135 -138] to demonstrate these cash withdrawals and payments, which have not been challenged. The Local Authority asks the Court to consider these cash withdrawals and payments in the context of AA’s circumstances and state of health and to infer that the withdrawals/payments could not have been applied for AA’s benefit or else she would not have been in the state of need which they allege.[77]The Second to Fourth Respondents have maintained a “no comment” approach in relation to the financial allegations. Generally, BA said in oral evidence that “even when she is ill, she still eats” and the brothers have repeatedly asserted that “whatever she needs, we provide. She is our family.”[78]I bear in mind that the findings I have made as to the state of AA’s wellbeing whilst living in the family home between April 2012 and June 2016 are not wholly in line with the way in which the Local Authority puts its case. I have not made findings of prolonged or severe neglect and am satisfied that, apart from in times of crisis, there were periods when a basically adequate level of care was provided in the family home.[79]In situations of family care, it is unrealistic to expect that every item of expenditure of AA’s benefits is directly and demonstrably applied for her sole benefit. It would be reasonable for a proportion of AA’s benefits to be applied as contribution to total household costs. The appropriate level of that contribution would take account of whether she was actually in the household, and so needing food etc or instead receiving care elsewhere, for example in hospital, when her contribution to overall costs may be expected to reduce.[80]I am satisfied that there was some degree of AA’s benefits being used as reasonable contribution to combined household costs but I am also satisfied that there has been significant inappropriate use of AA’s funds for matters (including mobile phones and online gaming services of Cassava Enterprises) which were not for her benefit. It is not possible from the evidence before me to quantify the misuse or to identify which of the family members bears responsibility but I am satisfied that AA’s standard of living could have been improved by more appropriate use of her funds during the time that the family were the primary care providers.[81]In the circumstances of this case, I consider that it is entirely appropriate that responsibility for AA’s finances should no longer lie with family members. The Local Authority now acts as appointee. It will be incumbent upon the appointee to ensure that AA’s funds are applied for her benefit going forwards in whatever way is most appropriate for her living arrangements from time to time.

Best interests

[82]The Local Authority’s position is that it is in AA’s best interests to move back to HV now, adopting the transition plan which was effective in December 2017. If a move cannot be achieved that way because AA is non-compliant, the Local Authority says that a transition plan [D95] which includes provision for police officers to “use such force or restraint as is required to gain entry to the property” and to AA’s room, should be authorised.[83]The foundation of the Local Authority’s position is the importance it places on a rehabilitative approach to AA’s care. I note in particular:• Dr Curwen’s view [I34] is that AA’s “negative symptoms of apathy, social withdrawal, lack of motivation and poor self-care…are significantly exacerbated by her social environment where she is under-stimulated and discouraged by her family from making any decisions for herself or showing any agency in getting her needs met.”• Professor Killaspy sets out [I46] that the current treatment plan for AA includes access to the specialist rehabilitative programme at HV “to support her to gain the skills and confidence in activities of daily living that will facilitate her being able to live as independently as possible in the community.” She gives six reasons why this rehabilitation programme could not be delivered in the home environment – the impracticality of releasing staff to spend time at AA’s home, the obstructive approach of AA’s family whilst she has been at HV, probable lack of cooperation from the family in their own home, inadequacy of facilities in the family home, family failure to attend review meetings, and family preference for carers who have no rehabilitation expertise.• All of the social work team support this approach. The care plan provided, at the direction of the Court, to address the provision of care in AA’s own home repeatedly states their position that AA’s care needs cannot be met in the home environment.[84]The Local Authority evidence is that AA has made progress whilst she was at HV. In his statement Paul Critchley, the Deputy Manager of HV, said that:• Initially on admission [AA] appeared gaunt and was distressed• Her mood began to improve up to the point her mother died on 13th January 2018 when she became at times tearful and expressed feelings of sadness• In the following weeks [AA] was gradually able to engage more with staff…She spent more time in communal areas• Her communication both in English and Sylheti improved and she was able to express her needs with more detail…• She appeared accepting of the plan to have structured visits home and on return her mood as observed generally calm and stable. However, he also said that• . it remained her stated wish to return home• . during stressful events or following them, [AA] was tearful stating that she wanted to go home. At those time she was contained and supported by staff and this always settled her.[85]In his oral evidence, Mr. Crtichley seemed to place a greater emphasis on this “containment” in respect of AA’s stated wish to go home. He described how AA’s stated wish to go home “might be directed into saying ‘you can visit tomorrow.’” He said it was his estimate that this approach “was containing” her expressions of wanting to go home. Mr Crtichley informed the Court that he was on leave in the week when AA was given the recent news about her physical health and subsequently refused to return to HV. He felt that it was “difficult to tell” if those events indicated that the point had come where AA’s distress at being away from home could not be “contained;” and that the professional efforts of support “didn’t get a proper chance.” He accepted that things were “so distressing, she had a reaction and didn’t feel contained at that moment.” He said it was “difficult to estimate a reaction” if AA is compelled to return to HV against her wishes, and he did not do so.[86]The family’s position is that AA should remain living in the family home. When asked by Miss Harris, BA said that AA does go out, with each of the brothers, and they know when it is a good time to suggest an activity – “Yes, of course we want her to come downstairs and do activities.” He said the family had been wanting the kind of support package which has been in place for the last few week “since 2014.” Although he expressed some ‘fear’ about the process, he confirmed that the family would engage with professional meetings, at any time and any place. He acknowledged that insufficient stimulation would make AA’s condition worse, and he welcomed the proposed reviews set out in the Court-directed care plan. He thought that the family could now manage better than they had in the past.[87]AA’s representatives consider that AA should “remain where she is” with a further review by the Court in 2 months. Miss Harris points to a lack of information about what AA’s immediate physical care needs will be. She submits that the aims of rehabilitation are beneficial “in an isolated way” but looking at the wider factors, it would not presently be in AA’s best interests to return to a rehabilitation placement.[88]Miss Harris points out that AA has now had a period of some 6 months at HV. Over that period, if her feelings of wanting to be at home reduced, it was only in a minor way. She points to• the attendance note of AA’s solicitor dated 16th February 2017 recording Mr Crtichley as saying that AA “will repeatedly say she wants to go home.” [G202]• the safeguarding review note of 27th April 2018 [J145] where Mr Kisitu recorded AA as saying she did not understand why she was at HV and she would like to go home• Professor Killaspy’s report that “AA’s tearfulness has decreased and is now rare,” suggesting that this is hardly a ringing endorsement of AA having settled at HV;• The attendance note of AA’s solicitor dated 21st May 2018 [G224], recording HV support workers saying that AA “comes out of her room a lot more than she used to, although she still spends most of her day in her room.”• The care notes for the period immediately before AA was given the recent news about apparent return of her cancer: ◦ On the evening before the hospital appointment, AA “came to the office on two occasions and told staff ‘I want to go home’.” [80] ◦ On 3rd June AA {78} was “very distraught this morning, she was crying and speaking incoherent sentences repetitively and very hysterical… she wanted to go home.” At the end of the home visit, AA “did not want to leave and was very upset and crying on the way back.” ◦ On 5th June {75}, it was reported by a nurse at HV that AA “has been very distressed overnight and today. She has been inconsolable, crying and unable to sleep.”• The decision of Dr Hanlon that further attempts to return AA to HV on 7th June “would be very traumatic “ to her {69}[89]Given the continuing clarity of AA’s wish to live at home, and the level of distress which has recently been manifest when that wish was not given effect, Miss Harris contends on the part of AA that “even if it is not perfect, and is not providing all that rehabilitation placement can” at this point, it is in AA’s best interests to remain living at home. She acknowledges that it may not be possible to keep the HV placement open. She points out that the current care package is significantly more extensive than has ever been provided before to support AA’s care at home, and suggests that it will provide sufficient independent oversight of AA’s wellbeing so as to mitigate any risks of remaining at home:
“If it fails in a major way, it will be evident very quickly.”
[90]Conclusions: I am concerned that the approach of the Local Authority appears to take too little account of AA’s wishes and feelings, particularly in the presently uncertain circumstances of her physical health needs. The aim of rehabilitation is laudable but there is insufficient information available to satisfy me that AA’s engagement in rehabilitation is realistically achievable at the moment. I can find nothing to suggest that compelling AA’s return to HV now, as the LA seeks, would be any less traumatic to her than Dr. Hanlon assessed it to be barely a month ago. If she is traumatised in her return to HV, there must be serious doubt that she would be able to benefit from HV’s rehabilitative approach in the short term at least.[91]The short term is, in my view, a critical consideration in this matter. It is generally expected that AA will very soon undergo surgery and the chemotherapy, or else chemotherapy and then surgery, but it is not known when and what that will involve for AA on a daily basis. Information is currently limited to that which Miss Moore has managed to establish in enquiries during the course of this hearing. A MDT meeting is thought to have taken place but any conclusions are yet to be discussed with AA and relevant others. Miss Harris has suggested that the picture may be clearer in two months.[92]I am not satisfied that it would be in the best interests of AA to compel her return to HV against her wishes, even for the laudable aims of rehabilitation support, whilst there is the very real prospect that she will imminently be admitted to hospital for significant treatment. I am satisfied that it is in the best interests of AA to require further information to be provided about her physical healthcare needs before a final decision is made as to where she should live and receive care. Until that further information is available, in my judgment it is in AA’s best interests that she remains living at home with the current care package. I consider that a care package of 4 hours a day, 7 days a week, by independent carers, provides sufficient support for the family so as to mitigate the risks suggested by past crises, and sufficient oversight of the situation for the Local Authority to be able to respond very quickly to any deterioration in AA’s wellbeing if necessary. I consider that the family ought to be taken at their word, and given the opportunity to show that they can cooperate with the care package and “do better this time.”[93]In order to obtain the information which I consider to be necessary, I consider that it would be appropriate to make a direction pursuant to s49 of the Mental Health Act requiring a report from AA’s treating clinician. That information should be supplemented by updating statements from the Local Authority, the family and AA’s own representatives. The Court should then consider the position further at an attended hearing in approximately two months time, with a view to then making final orders or giving further directions as appropriate. In the meanwhile, I shall make an interim order that it is in AA’s best interests to remain living and receiving care in accordance with the care plan dated 22nd June 2016 at her family home.[94]I invite the represented parties to draw up a draft order giving effect to this decision.