Hickmott , R (on the application of) v Brighton and Hove Council & Anor [2004] EWHC 2474 (Admin)

“Proposed service 1 [The Claimant] will need to be in a secured community placement within a 45 mile radius of Brighton and Hove that supports adult clients with autism, learning disability, epilepsy and adults who display challenging behaviour………… 2 [The Claimant] will require 24 hour staffing input, from trained and qualified staff, and to be allocated to a key worker. 3 The service to provide a waking night service and management on-call service. 4 The service to promote and encourage daytime activities. Self Care 1 [The Claimant] will require assistance and support with his personal care. 2 Medication to be administered by the shift-worker, no unqualified staff to administer medication. PRN should only be administered by the shift leader or on medical advice. Health 1 Staff to have relevant training around the areas of epilepsy control and restraint. 2 Staff to receive development and training in autism. 3 [The Claimant] to receive a regular health check up by the GP….. and any other health professionals. Mental Health 1 [The Claimant] to receive psychiatric and psychological support/intervention from the developmental and learning disability team in Brighton and Hove. 2 A risk management guideline planned to be in place, completed by the psychologist at Care Principles [that is the private hospital where the Claimant was then and is now detained]. Personal risks 1. Staff to aware that [The Claimant] requires 24 hour support. He will also require staff support when he is out in the community. 2 Staff to be aware that there is concern around self-harm, only as a consequence of his challenging behaviour. Environment 1 [The Claimant] could live in a service with up to four other service users; in a secure community setting. [The Claimant] would require space and independence, living on the ground floor”

“At times [the Claimant] can display disruptive and physically aggressive behaviour, there are substantial issues regarding [the Claimant’s] challenging behaviour. Due to high anxiety levels, [the Claimant] requires a calm non-threatening approach to reduce his anxieties around staff and new people. [The Claimant] is very aware of his parent’s anxieties and distrust of professionals. At times [the Claimant] has reacted to his parents feeling by displaying a physical outburst.”

“On 28 June 2001 [the Claimant] was transferred from the Martin Long Centre, an assessment and treatment run by the Sussex Weald and Downs NHS Trust. [The Claimant] was admitted into Cedar House, a care principal secure unit, under S 3 Mental Health Act 1983. He was admitted under the category of mental impairment. Brighton & Hove Social Care and Health and Care Principles have entered into an agreement with [the Claimant’s] parents and family to carry out a needs led assessment and to ensure that a suitable service provision is developed for the {Claimant] within a 30 mile radius of Brighton & Hove or a 45 minute journey one way. [The Claimant] has a diagnosis of autism from early childhood, he will at all times require 24 hour close care and supervision from specialist staff experienced in supporting clients with a spectrum disorder. [The Claimant] has undertaken a psychological assessment that indicates that he has severe learning disability; he will require staff to support him in this area. Due to his epilepsy [the Claimant] will need support and medication administered by staff. Overall, [the Claimant] needs to live in the community in a secured accommodation, with trained, qualified staff. He will also require day care activities to stimulate and promote interests and hobbies that he can enjoy.” (By reference to a further table) [The Claimant] could live in a service with up to four others service users in a secure community setting. [The Claimant] will require space and independence living on a ground floor prior to such a move [The Claimant] will need a risk assessment and guidelines completed by the psychologist at his current placement. A contract is required between parents and service provider and Brighton & Hove SC & H to avoid parental mistrust and conflict. Assessors statement (in support of above Eligibility Criteria) Due to the [Claimant’s] autism and severe learning disability, he will need to be supported at all times, as shown in the past. Changes to his environment can cause him acute anxiety ands result in challenging behaviour. Parents and professionals are all in agreement that the [Claimant] would require support when out in the community due to his needs. Assessor’s statement (in support of consideration of continuing health care criteria) if eligibility for continuing health care is likely undertake a joint assessment and do not proceed further with this form. East Sussex Brighton & Hove Health Authority fund [The Claimant]’s placement. Also he is currently detained under the Mental Health Act for mental impairment. [The Claimant] will jointly require continuing health care funding and local authority funding in his environment due to ongoing levels of his challenging behaviour and periods of unstable mental state and epilepsy.”

“The prognosis of the Claimant’s mental disorder. Autism is not a condition that can be cured, though some of the associated behaviours may become less prominent as the individual progresses through adult life. He will continue to exhibit learning difficulties throughout life. His functioning and behaviour may be improved by the interventions for associated conditions alluded to previously (such as improved management of any mental illness which may be present but which, as yet, is undiagnosed or by improved management of his seizure disorder) or by environmental manipulation for his autistic disorder. The timescale for assessment and treatment under detention in conditions of security. As alluded to previously, the treating team consider that assessments and appropriate interventions can be instituted within a timescale of approximately 6 to 8 months from the present time.”

“The view of the clinical team as expressed to myself and Professor O'Brien ……. was that if the patient does as well as he is at present in 6 to 9 months a comprehensive needs assessment would be available from the hospital’s perspective and a community placement could then be a viable possibility. Mr Warden emphasised that the responsible local authority had their own statutory responsibility to prepare their own needs assessment in conjunction with the hospital staff; and all present acknowledged that the 6 to 9 months projected timescale clearly implied that the local authority should be actively planning local resources now.”

“The Claimant – current regime. As described [the Claimant] does occasionally require to be subjected to control and restraint although not often. The Claimant – current diagnoses. The Claimant’s current diagnoses are of mild to moderate learning disability (i.q around 50) epilepsy and autism. These diagnoses are long standing and are based on my own examination and appraisal of his presentation and are appropriate in my opinion. Potential rehabilitation. Dr Barron and Mr Ward [a social worker and doctor at Cedar House] explained that they felt that the Claimant might be ready to move on from hospital in 6 to 9 months. They felt that within that time the Claimant might attain the stability that he needs to attain before moving on. Also within that time they have agreed with the local authority who operate within Brighton that a needs assessment will be carried out in order to facilitate moving on. It would then be the task of the Brighton agency to take the Claimant’s case further. Summary Finally, I confirm that in my opinion such detention (i.e. in Cedar House) is likely to avoid further deterioration and eventually result in further improvement as evidenced in his current recent progress. Given the need for a directive regime under which the Claimant is currently managed including for example the occasional use of control and restraint it is my opinion that the Claimant’s need for health and social care are indeed such that they can only be met in hospital at present (my emphasis). I am of the view that the Claimant should remain in hospital at present. In my prognosis I confer with Dr Barron’s plans. These are, namely, that a period of 6 to 9 months is an appropriate time for turning to stabilise before being transferred into the community. (my emphasis) The community placement which will be required for the Claimant’s care on leaving hospital would require: i) 3 to 1 staffing ii) full structure and careful personal programme planning based on the Claimant’s autism. iii) medical expertise to deal with the Claimant’s needs for medication for autism, behaviour disorder and epilepsy iv) staffing skilled and directive management and special rehabilitation v) specialist staff who have the capacity to work in partnership with the Claimant’s parents in the kind of sensitive appropriate manner which currently applies at Care Principles (Cedar House).” i) 3 to 1 staffing ii) full structure and careful personal programme planning based on the Claimant’s autism. iii) medical expertise to deal with the Claimant’s needs for medication for autism, behaviour disorder and epilepsy iv) staffing skilled and directive management and special rehabilitation v) specialist staff who have the capacity to work in partnership with the Claimant’s parents in the kind of sensitive appropriate manner which currently applies at Care Principles (Cedar House).”

“In summary it is my opinion that the Claimant would be disserved by remaining in his current placement longer than is necessary and that should he remain there beyond June 2002 he is likely to regress. In other words, a general deterioration in his behaviour and functioning would occur in that event, in my opinion.”

“Service provision. The local authority …….. are currently under judicial review in the High Court regarding the issue of service provision for the Claimant. Therefore the information that I am able to discuss is restrained by this fact. However, to address the concerns of the Tribunal Panel if the Claimant were to be discharged I am able to state: a) The local authority does not currently have a residential service in place for the Claimant in Brighton & Hove. However the local authority has carried out a tendering process and successfully short-listed an external provider regarding a suitable and appropriate service. Due to legal requirements around tendering an in-house proposal has been submitted and both proposals have been forwarded to the Council members to make a decision. On 17 May 2002 this was made public. The decision has been made for a bespoke in-house service either within the city limits (or a 30 mile radius) to be provided for the Claimant. A project plan has been drawn up and timescales are being put to that plan to include the identification of a suitable property to be acquired and adapted and staffed appropriately to meet the Claimants (and to other as yet unidentified service users need). If the Claimant’s section is not renewed Cedar House who are aware of the project plan and associated timescales will agree to keep it in the light of the need to reduce the number of moves and his progress with them to date.” a) The local authority does not currently have a residential service in place for the Claimant in Brighton & Hove. However the local authority has carried out a tendering process and successfully short-listed an external provider regarding a suitable and appropriate service. Due to legal requirements around tendering an in-house proposal has been submitted and both proposals have been forwarded to the Council members to make a decision. On 17 May 2002 this was made public. The decision has been made for a bespoke in-house service either within the city limits (or a 30 mile radius) to be provided for the Claimant. A project plan has been drawn up and timescales are being put to that plan to include the identification of a suitable property to be acquired and adapted and staffed appropriately to meet the Claimants (and to other as yet unidentified service users need). If the Claimant’s section is not renewed Cedar House who are aware of the project plan and associated timescales will agree to keep it in the light of the need to reduce the number of moves and his progress with them to date.”

“In many respects this report [the nursing report] gives us a clear picture of just why it is the Claimant has done so well in the current placement – it is because of the very careful, sensitive management he is receiving. I particularly note the care the authority is going to in endeavouring to make this [a service for the Claimant] an individually tailor made service – in this respect the phrase ‘a bespoke in-house service (either within the city limits or within the radius) should be provided for the Claimant’ – a good indication of the commitment of the local authority and is welcomed.”

“Grounds for detention. The Claimant has a mental impairment and the nature and degree of his condition makes it appropriate for him to receive treatment in a specialised unit because of his abnormally aggressive and irresponsible behaviour probably complicated by his autistic spectrum disorder. He needs continuation of medication for the control of his behaviour and epilepsy and he is unable to give valid consent. He should be treated in a hospital for his own health and safety and safety of others and the treatment could not be provided unless he is detained under the Mental Health Act. The treatment is likely to alleviate or prevent deterioration of the condition.”

“Dr Karunapala recommended a structured environment for the Claimant and said he was happy for him to transfer as soon as an appropriate placement was available. Dr Sanders told the meeting that there was no suitable long term living facilities in Brighton that could accommodate the Claimant under the Mental Health Act 1983. Dr Karunapala explained to the Claimant’s parents that if the Claimant was discharged from detention under the Mental Health Act at his forthcoming Mental Health Review Tribunal (04.07.02) he would not be able to remain an inpatient at Cedar House. The Claimant’s mother said if this occurred then she would take the Claimant home. At present there is no date from social services as to when the Claimant’s future placement will be available. With regard to the judicial review proceedings no one present at the meeting knew what was happening.”

“In November 2001 I reviewed the medication and admitted Lamotrigine. A few weeks later his general behaviour became more manageable and he started engaging more at learning support…….. During September he was allowed periods of home leave and in October his behaviour became unmanageable. During this period he started attacking members of staff and residents. As a result two staff members had to go on sick leave. Staff noted that when he returned from home leave he needed PRN medication more frequently for his agitation. At that time there was some changes in staff members also. The clinical team decided that the Claimant needed an appropriate placement as agreed in the past. However the team later discussed the hardships the parents would have to undergo if the Claimant was placed in one of our sister units. I was able to review the medication and as a result he became more manageable and the staff at Canterbury House were confident that they could provide care for him. As his behaviour improved remarkably we were able to grant him extended home leave for Christmas, although he was brought back one day early because of the Claimant’s unmanageable behaviour at home. On return from home he was exhibiting aggressive behaviour but he settled within a few weeks and at present he is fairly settled except for his occasional outbursts.”

“The Claimant suffers from mental impairment and exhibits impulsive aggressive behaviour. The nature and degree of the mental disorder make it appropriate for him to receive treatment in Cedar House at present. The treatment is necessary in the interests of his own health, safety and safety of others. He has no insight as to his behaviour and cannot give consent for his medication. Treatment would alleviate or prevent deterioration of his condition. The treatment cannot be provided unless he is detained at Cedar House until the proper placement is found for him as agreed at the Tribunal by the funding authority.”

“Dr Sanders expressed her concern about the Claimant’s proposed community placement in Sussex; she anticipates it will break down because the level of the violence exhibited by the Claimant. She has communicated this view to the Health Authority and as a result a multi disciplinary meeting is to be held in February in Brighton. Dr Karunapala said he recommended that the Claimant should remain detained under the Mental Health Act on transfer to the community; Dr Sanders endorsed this view. The meeting thought the supervised discharge to a community placement would not be adequate and that s. 3 would be more appropriate allowing access as it does to the Mental Health Act Commission and Mental Health Review Tribunals. The meeting noted that the Claimant frequently requires physical restraint and at times intra muscular medication. The intended community placement for the Claimant will be his own staff flat (1 of 4) in a converted Victorian house. The other three flats will accommodate less challenging residents. A day service will be provided in the basement.”

“Dr Karunapala said that he had given an undertaking to the Mental Health Review Tribunal (04.07.02) that the Claimant would remain an inpatient at Cedar House until his community placement became available and that he should transfer under s. 3 of the Mental Health Act. He repeated his view that Cedar House was not the ideal placement for the Claimant; house staff are not specially trained to care for residents with autism.”

“The Tribunal heard that a specialist placement is being planned and that it is hoped this will be available for a period of trial leave later in the year and were pleased to note that there is effective inter-agency liaison in this planning process.”

“The Claimant’s current and future Mental Health Act status Dr Karunapala made telephone enquiries and informed the meeting that the recent Mental Health Review Tribunal had upheld the Claimant’s section and so he remained detained under s. 3. The Tribunal was aware of the judicial review settlement in respect of the Claimant’s future care. Dr Karunapala and his team were asked to comment whether there was a foreseeable time when the Claimant would be fit for discharge and the section revoked as it was no longer needed. It was difficult to give a prognosis. There was no cure, the issue was whether his symptoms could be alleviated. There were always going to be times when restraint was required and without a section the first time the Claimant was restrained or given intra muscular PRM medication it was likely an assault charge would follow. Dr Karunapala had granted special leave to the Claimant and the Claimant had been on leave to parents for 2 days recently. For him to go on leave for longer periods was problematic as he was too disturbed and was a risk in the car. The feasibility of the planned service in Brighton. Dr Karunapala wondered if the Claimant could be placed under s. 3 of the Mental Health Act 1983 in the community. Gino Penswick indicated that enquiries of the NCSC had indicated that the service at Beaconsfield Villas would then require dual registration but this is not a service or model planned or agreed. It was noted that at Cedar House there is always a nurse available. The Brighton & Hove community model does not provide that level of service with RMN (Registered Mental Health Nurse) and other mental health professionals available for immediate response. If the unit required dual registration there would have to be a registered nurse on site. Dr Conboy-Hill and Dr Sanders expressed the view that the Claimant needs a social care model but also a medical care model – the current care service being planned for Beaconsfield Villas cannot provide this. They enquired as to the degree of support that the Claimant required in addition to the basic staffing levels outside. Brighton & Hove have 2 major worries – professional support /buffers in house and recruitment and retention. Additionally Dr Conboy-Hill and Dr Sanders would not be able to match anything approaching a degree of psychological and psychiatric support it was supported that Cedar House were offering and that the Claimant needed and would not be available on site. Cedar House reached crisis last year with the Claimant, the team were exhausted and at the edges of capacity in terms of coping. They had considered advising that they could no longer manage him. However as Cedar House provides one of the very few service models to meet the Claimant’s needs and the clinical manager would consider it probably the best service in the country for this type of client the view of Cedar House was that the Claimant should remain there. Outcome. The Claimant will stay on s. 3 for the foreseeable future – Cedar House has continuing evidence this level of care is required. Natasha Watson advised that it could be argued the s. 117 duties on which the judicial review was based no longer arose as there was no realistic prospect of the Claimant coming off s. 3 in the foreseeable future. The consensus was that the model envisaged in the judicial review would no longer meet the Claimant’s needs safely. In those circumstances the matter could be returned to court. Brighton & Hove will need a written report from Cedar House which confirms their opinion. They will be asked to comment on the proposed Brighton & Hove model, and if they feel this would not meet the Claimant’s needs what other service might be more appropriate. Natasha Watson (of Brighton & Hove Legal Services) advised that the Claimant’s solicitors could be invited to comment on or add to the terms of the request to Cedar House for this report. In the report Cedar House need to provide evidence around the skills in relation to providing a service for people with autism – his parents have raised concerns about this in the past. Natasha Watson would advise the Claimant’s solicitors that the model agreed with the judicial review was under review and of the intention to request a written report from Cedar House to clarify the issues discussed at this meeting. Dr Karunapala raised the issue of further s. 17 leave for the Claimant. It was agreed that he should risk assess if this was safe for the Claimant after the Claimant’s parents had been advised of change in current plans.”

“The Claimant’s parents have informed me that they have had a meeting recently in Brighton and were told that ‘Dr Karunapala expressed the opinion that the Claimant should be under s. 3 Mental Health Act 1983 indefinitely’ and therefore you are unable to provide a placement in Brighton as requested by the High Court. I categorically protest for giving the incorrect information to the parents. On 16 April 2003 at 2pm Mr Neil Sinclair and Mr Peter Crascell represented Care Principles Ltd [Cedar House]. I expressed my opinion as follows: The Claimant should be under s. 3 to gain legal framework for the carers because of his behaviour, lack of insight and inability to consent. Mr Buchanan visited Cedar House on several occasions and had discussions with Geoff Jones, social worker, Dell Warden, nursing staff and myself. Mr Buchanan showed us the proposed plan of the placement and said that the Claimant would get 24 hours care and that he would have separate access to the staff. He also said that Geoff Jones was of the opinion that the Claimant could be managed in the proposed placement provided that adequate care is provided. At this meeting I said that I would be able to give S 17 leave so that we could test him out away from the secure environment because: • I had already given 5 days leave at home for Christmas. The parents were able to manage the Claimant satisfactorily. Provided more support is given it is an opportunity to test him in the community. I also said that we could not keep this young man for ever. Mr Neil Sinclair, consultant clinical psychologist, expressed his own opinion. The Chairperson said that she would write a letter regarding the formal opinion. Please note that: a) We never received a letter as expressed by the chairperson b) We never received the minutes of the meeting. The Claimant’s parents are in a severe state of distress. I would like to ask you to clarify the matter with them as early as possible”

“In relation to the Claimant’s current needs it is the understanding of the Brighton & Hove Integrated Learning Disability Service that the service being planned for Beaconsfield Villas would not be sufficient to meet those needs. Therefore the Authority will be returning the agreement reached in the judicial review proceedings to court for further consideration.”

“You will see that during that meeting there was a consensus that [the Claimant] would continue to need physical restraint and intravenous medication in the foreseeable future, and that this could only be given to him lawfully if he remained under section. Given his lack of capacity to consent. The authority is therefore very concerned as to whether or not the service being developed at Beaconsfield Villas is at all safe or appropriate for the Claimant. With this in mind I have written to the clinical team at Cedar House, requesting them to prepare a report on the care package they believe will meet your client’s needs. It may well be that in the light of that report the authority will wish to apply to the High Court to discharge the consent order made last year. For the sake of transparency we, therefore, invite you to consider whether or not you wish to ask the clinical team to consider any additional matters to those outlined in the enclosed letter of instruction.”

“At no stage have those minutes ever been challenged ”

“Renewal hearing 11.7.03 upheld detention. I note the Hospital Managers’ written comment ‘ Leave under S 17 should be actively investigated with the special placement in Brighton as previously promised by Brighton NHS.”

“Overview of my aim in this report. ------- One key facet of my report concerns the appropriateness of the Claimant’s transfer to Beaconsfield Villas and the basis on which this might be done. Alongside that matter I comment in detail on [the Claimant’s] current situation at Cedar House. My interview with Mr Peter Crascall, primary nurse to the Claimant ……… ….. The Claimant is never on any day capable of making choices for himself responsibly and reliably but has to be directed. Further more physical intervention is required generally on a weekly basis and indeed has been required in the past. In this respect, therefore, the current care requirements are in keeping with those which form the basis of the social care plan of December 2001 as cited above. Please consider whether or not, and if so, on what timescale and in what circumstances the Claimant might reasonably be expected to be discharged from section. This is not an issue. For the foreseeable future the Claimant will require treatment under the Mental Health Act under section 3. (my emphasis). Please consider the extent to which the Claimant’s placement at Cedar House has satisfied and continues to satisfy his care needs and whether an alternative will be more likely to satisfy those needs both on a short term and long term basis. The Claimant’s placement at Cedar House is appropriate to his needs…. We do note that, as Cedar House staff know, the Claimant does not require such a locked/secure facility as Cedar House. It is for this reason, an alternative would indeed be more likely to satisfy his needs both on a short term and a long-term basis. ……he does not need to be locked away in a unit which is entirely separate from the community. An alternative arrangement, an unlocked unit with close supervision would be more likely to satisfy his needs both in the short term and long term basis. Please consider whether or not the Claimant’s current placement at Cedar House may have exacerbated the symptoms of his mental disorder although otherwise have caused a deterioration in or failure to ameliorate his mental state and/ or may do so in the future and if so when. In my opinion Cedar House is the best placement the Claimant has had. I mean by this that all the evidence which I have reviewed indicates that the Claimant initially progressed better at Cedar House than in any other placement. Since I last saw him, he has neither progressed further, nor regressed. However, as I and others have noted, he does not require the degree of security which applies at Cedar House. Essentially, in my view Cedar House is not ideal. It is not in his best interests. He would progress better in a less structured environment. Alternative, less structured care is required, within the context of the Mental Health Act. Please consider the extent to which the Claimant’s care needs differ from those indicated by yourself in your report previously filed in these proceedings. As I have already described the Claimant’s care needs do not differ from those detailed by myself in previous reports substantially in any respect.”

“Looking at the draft care plan, you talk about s. 117 team duty and using extended s. 17 leave. It is not clear whether it would be proposed that the claimant would remain under S 3 or not. I personally believe that at the current time the claimant needs to be under s. 3. Section 17 leave can be used for a short time but cannot be used for a long period of months or years. Section 17 is used for discharge planning when it is anticipated that the individual is coming off the section. I think you will have problems if you try and put the [Claimant] on s. 17 leave for any length of time. Again I do not think you should tie yourself down to a specific number. At the current time he needs to be on s. 3. I personally believe that at the current time the [Claimant] needs to be under a section of the Mental Health Act 1983 and this should be in a setting such as Cedar House. No other placements have worked for him. (my emphasis) I am concerned again that there seems to be urgency and a very short deadline for comments about this plan whereas the complexities of this case mean that things should be carefully considered. Perhaps, if rather than quick knee-jerk reactions, we had taken more time to consider case planning in the past we would not be in such a mess now. I also think you should be involving Suzanne Conboy-Hill in care planning for the claimant. I wonder why a lawyer is doing care planning rather than the clinical team when this about the claimant’s mental health. It is not an appropriate task for a non clinician.”

‘Yes – provided appropriate and adequate community support are provided by the local health and social service teams. We have already outlined the resources required. Mr Buchanan who came and met with us had a clear understanding of the service requirement.’ ii) Dr Karunapala also said: ‘The [Claimant] has had successful home leave prior to the professionals’ meeting, which was held at Brighton about 1 year ago. We had to cancel the home leave because of concerns expressed by Mr Gino at the professionals’ meeting. We have already resumed the home leave from last Christmas. So far we have been successful. If the local team can provide a placement with adequately trained staff supervised by the community nurse or a staff nurse from the local assessment unit I feel we could give the [Claimant] an opportunity to live in the local area closer to his parents. It would also give more information regarding his behaviour in such a setting and also necessary changes required in the management strategy. iii) In answer to a question “Has the [Claimant’s] mental state changed materially since 2001?” Dr Karunapala answered: “There is a marked change in his interaction with visitors to Canterbury House: shows more positive interaction. Enquiries about Mum and Dad: enjoys walks within the premises and outings with staff; he has had successful home leave; need for im prn medication is less. There is a decrease in physical aggressions. This is due to factors outlined in CPA (Psychology report page 2 paragraph 3). iv) In answer to a question “Given that the [Claimant] has had two IM injections since December 2003 and may need IM whilst at Beaconsfield Villas does this in any way change your view on giving extended leave and/or his potential suitability for subsequent discharge?” Dr Karunapala answered: “We have to bear in mind that at present the Claimant lives in a fairly turbulent ward and in spite of that we have managed him fairly satisfactorily. Therefore it is not surprising that he needed two IM injections since December 2003: if the resource proposed goes ahead it will provide an appropriate environment and hopefully the need for IM injections may not arise. My opinion is that this is the only way to test him in the community. Because of the possible necessity of an injection it is unfair not to provide the community leave under s. 17 of the Mental Health Act 1983.” v) In answer to a question “If you gave the [Claimant] three months extended leave and he needed urgent psychiatric intervention, could this be achieved at a local hospital? Alternatively, would Cedars be prepared to keep a bed available (subject to funding by the PCT for this)?” Dr Karunapala answered: “If we are able to send the [Claimant] on 3 months extended leave under s. 17 of the Mental Health Act 1983 we will liaise with the local learning disability team and his family to work out the management strategy in case of psychiatric emergency. We are prepared to keep a bed vacant provided funding would be agreed.” vi) In answer to the question: “Why do you feel that it is important that the [Claimant] is provided with s. 17 leave to Beaconsfield Villas? In view of his recent progress why do you think he should not remain in a secure unit such as Cedar House?” Dr Karunapala answered: “I quote Professor O'Brien’s report paragraph ii – page 3, ‘The longer the claimant remains at Cedar House, the longer he will continue to suffer detriment in that he will not be given the opportunity afforded by an unlocked house with close supervision and close community contact.’

“Dr Karunapala said he would not discharge the Claimant from detention under the Mental Health Act 1983 because of his vulnerability. Dr Karunapala repeated his recommendation for the Claimant to be tested out in the community under s. 17 leave: Cedar House could assist if there was a crisis and provide outreach work. Cedar House multi disciplinary team continued to support their earlier community placement specification. Individual support guidelines currently in use at Cedar House could provide a framework – be adapted to a smaller community environment. The meeting noted that due to changes in the law new care homes can no longer be dual registered. Julia Cornes [solicitor acting for the Claimant] fed back that Professor O'Brien’s view had not changed with regard to the Claimant’s future care i.e. that a special unit in the community be developed for him. In contrast a report commissioned for Brighton & Hove by Dr Campbell recommends a long-term medium secure service for the Claimant. A ‘phone conference is planned between Dr Campbell, Dr Sanders and Professor O'Brien to discuss this further.”

“All agree that the Claimant needs to be in a facility registered under the Mental Health Act 1983. Dr Campbell and Dr Sanders agree that the Claimant should be in a ‘hospital’ environment in the short medium and long term. Professor O'Brien agrees that for the foreseeable future the Claimant should be in a facility which would be able to deal with the Claimant under the terms of the Mental Health Act 1983 (i.e. a registered nursing home). This is what Professor O'Brien meant by the description ‘community placement’ in both in his previous recommendations to the court in 2001 and now.”

“Would you recommend the Claimant to go on extended leave under s. 17 of the Mental Health Act 1983 at the current time and what is the medical basis for your opinion?’ The answer was: The Claimant is not fit for discharge from section, needs to be somewhere registered under the Mental Health Act 1983, and is not fit to go on extended leave from detention. “Has the current provision for the Claimant produced any deterioration in his condition or any improvements?’”

“At the teleconference we all agreed that the [Claimant] requires to be detained under the Mental Health Act 1983 for the foreseeable future, and that he requires to be living in a specialist autism/specific situation with appropriate levels of staffing and that this could be done in a more community like setting than his current secure placement. However it occurred to me that throughout my careful emphasising that he does not have to be in hospital, there appears to have (sic) some confusion regarding what is meant by ‘hospital’. For this reason I went back over the papers in detail. I note that in my original report dated 7 September 2001 I stated (page 8) it was appropriate that he be detained under the Mental Health Act 1983. In that letter I also said that ‘a period of 6 to 9 months is an appropriate time for the [Claimant] to stabilise before being transferred back to the community’. It has been proposed that I also said in this letter that his detention under the Mental Health Act 1983 would, from that time, only be required for 6 months. At no time in my report did I say that. Indeed subsequently on 22 December 2003 I stated (pages 9 and 10) ‘for the foreseeable future the [Claimant] will require treatment under the Mental Health Act 1983 under s. 3’. In my view, the care plan which was first proposed by the integrated learning disability service challenging behaviour team, 9 August 2002, has been working towards the [Claimant’s] discharge, and that Beaconsfield Villas was being arranged as the venue which would meet the community placement requirements I had described in September 2001. At that time, and now, by ‘community placement’ I was referring to a facility which would be able to deal with the [Claimant] under the terms of the Mental Health Act 1983. I feel it is important for me to register these comments now, because in the circumstances – and in particular whereby it was erroneously stated at page 10 of the CPA meeting of 28 October 2003 that ‘the original plan for [the Claimant] not to be detained under the Mental Health Act 1983 at Beaconsfield Villas was the response from Professor O'Brien’s report of September 2001, which stated that [the Claimant] ‘would be on a section for 6 months’ – it seems that there was a misunderstanding here, which may run through this case. I therefore wish to emphasise that, as I stated in December of last year, the [Claimant] does require detention under the Mental Health Act 1983 for the foreseeable future, and I note that the August 2002 project plan for service provision for the claimant was informed by my recommendations of September 2001. I would therefore respectfully wish that the Beaconsfield Villas project be implemented.”

“I understand a telephone conference of psychiatrists involved in this matter has recently taken place, or will take place imminently. I further understand that this conference will exclude any other disciplines and will not include anyone who has had regular contact with the subject or his family. This format of exclusion is in complete contradiction of the philosophy of multi disciplinary work, which in this subject’s case has achieved so much in his current environment. Therefore the exclusive nature of this format, will, I would respectfully suggest have limited relevance in formulating long term service provision for the claimant. I have read all the recent documentation as listed above and re read relevant historical information and I have no reason to adjust the opinion offered in this matter dating back to my original involvement of several years ago. From all the information available from Cedar House, it is absolutely beyond question that much has been achieved in working with both the patient and the family; however most clinicians are still of the opinion that this remains an inappropriate environment to fully meet his complex needs and I remain of the professional opinion that these needs can be met in a unit with the support detailed in earlier submissions. I understand from my last contact with Cedar House that a project such as Beaconsfield Villas would be a very suitable resource for long term care provision and if so much has been achieved in his current environment it should be possible to make further therapeutic gains in a more suitable environment. My professional opinion is that to a certain extent ‘the plot has been lost’ in that the inadequacies of local provision has been swamped by argument of his detained status under the Mental Health Act 1983, the care plans referred to in my earlier reports, and my own assessments never envisaged the subject being cared for in an environment that did not have a low level of security and the capacity to manage detained, as well as informal, patients. As far as I am aware this remains the view of the service currently treating him. I would not dispute that from time to time the subject might need to be detained, but the hope would be that he could be in a placement that could manage these adjustments. Time after time in my career I am involved in cases such as the claimant where the subjects end up being catapulted into a forensic trajectory and into medium secure provision because of the inadequacy of local provision and this is particularly so in the case of developmental disorders and this situation has been recognised by the Government, as the court will no doubt be aware, with a national strategy being developed. As far as I am aware the orders made previously by the court have not been complied with, and it is to be hoped that this matter can be settled and enforced at the forthcoming hearing. Once a patient enters the forensic system, especially in learning disability, it is my professional opinion formed over a long career in these issues that reaching escape velocity becomes very difficult for the subjects who become trapped in a fixed orbit and become more and more institutionalised. It is precisely to avoid this that the parents have fought such a persistent and enduring campaign and are apparently supported in their wish for a local resource along the lines of Beaconsfield Villas by the views of the clinical team at Cedar House.”

“Mr Buchanan, care manager for the local learning disability team visited Cedar House and met with all the disciplines. He said that the local authority has a plan to provide a flat in a group home for the claimant and that there will be 24-hour supervision. There was a professionals’ meeting at Brighton to discuss this issue. I expressed my view that I am happy to give s. 17 leave for 3 months to test the Claimant in the community; this option will also help the parents and above all the claimant….. There has been an independent assessment done by an independent psychiatrist. We all feel that for the claimant’s best interest he should be cared for under s. 3 of the Mental Health Act 1983 but in an appropriate placement. At present Cedar House is not appropriate.”

“I consider that it would only be appropriate for the Claimant to be offered s. 17 leave to Beaconsfield Villas if it were part of a planned process culminating in his eventual transfer to that address. However, I note that Beaconsfield Villas is to be registered as a care home rather that a mental nursing home, and I therefore consider that it would not provide an appropriate long-term environment for the claimant. I would therefore regard any s. 17 leave to Beaconsfield Villas as serving no useful purpose. If Beaconsfield Villas were to be registered for the purposes of s. 34 of Mental Health Act 1983 and if it were to provide all the relevant facilities of a psychiatric unit, then it may well become appropriate for the claimant to be transferred there. However I understand that there is no current intention that Beaconsfield Villas should be registered for the purposes of s. 34 of Mental Health Act 1983. If Beaconsfield Villas were to be so registered and to provide for the Claimant’s needs, it would need……….. to have 24 hour nursing staff cover, staff trained in appropriate restraint techniques, staff able to administer medication on an emergency basis by either the oral or the parenteral routes and medical staff available either on site or readily available to attend the site.”

“Whether or not it would be appropriate, and if not, why not, for the Claimant to be given s. 17 leave to Beaconsfield Villas?” in the following terms: “In principle this might be possible, but only if the services there are geared to deal with someone detained (my emphasis) under the Mental Health Act 1983, and who will be so detained for the foreseeable future.”