C v A Local Authority [2011] EWHC 1539 (Admin)

[2011] EWHC 1539 (Admin)

Case No CO/9790/10

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

AND IN THE COURT OF PROTECTION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 30 March 2011

Before

MR JUSTICE RYDER

Between

‘C' (by his litigation friend the Official Solicitor)Claimant

A Local AuthorityDefendant

LMInterested Parties

LPMInterested Party

The PCTInterested Party

An OrganisationInterested Party

And Between :

A Local Authority

Applicant

[1] ‘C’ (by his litigation friend, the Official Solicitor)

Respondents

[2] LM

[3] LPM

[4] The PCT

[5] An Organisation

Ms Katie Scott (instructed by The Official Solicitor through Hogans, Solicitors) for ‘C’

Mr Louis Browne (instructed by Borough Solicitor) for Local Authority

LM in person for in person

Mr Sam Karim (instructed by Irwin Mitchell LLP) for LPM

Ms Sophie Cartwright (instructed by Hempsons) for PCT

Ms Amy Street (instructed by Hill Dickinson LLP) for an Organisation

Hearing Hearing dates: 12, 13, 14 and 17 January 2011 and 3 February 2011

Approved Judgment

Chapter 8: Care leavers aged 18-21

[1]These are proceedings in the Court of Protection and the Administrative Court concerning C, a young man who was born on 29 July 1992 and is aged 18. C suffers from severe autism and severe learning disabilities and exhibits extreme, challenging behaviours including severe anxiety, sensory impairment, aggressive and destructive traits, significant self harm and harm to his carers. He has very significantly impaired communication skills and has a minimal tolerance of any change in routine or physical transition between places or activities. His symptoms were first recognised when he was 3 years old. He lives at a residential special school for pupils with severe learning difficulties and complex needs (hereafter referred to as ‘the school’) owned and operated by an organisation (hereafter referred to as ‘the organisation’). He moved there on 21 May 2007 at least in part in consequence upon earlier judicial review proceedings.

[2]The school has a head teacher who leads a senior management team which includes a head of residential services, a head of education and a head of behaviour support. At a national level, the organisation employs a clinical psychologist to provide clinical supervision. Save for the supervision provided by the psychologist, the school does not have a multi-disciplinary team to provide advice about the pupils, it purchases advice and support. The description in the evidence filed of the curriculum, behaviour management or support and residential care is that it is nationally regarded as at least good and in some respects outstanding. For example, although there are issues about the extent to which C can access education and social activities, he does have in place an individual education plan (IEP) with SMART targets for each term (specific, measurable, achievable, realistic and time dependent targets), a timetable of activities and a behaviour support plan. His accommodation includes a bedroom, a splash room, a bathroom, a toilet, a kitchen and a dining room. It also includes a room known as the ‘blue room’. On the same corridor is another young man, who I shall refer to as A, who shares some of the facilities but has his own bedroom.

[3]In preparation for C’s admission to the school a looked after children (LAC) care plan dated 21 May 2007 was agreed which provided for his special educational needs (SEN) as identified in his SEN Statement. That included 24 hour a day care every day of the year with a 2:1 staffing ratio. His ‘behaviour management’ since May 2007 has included the use of the blue room at the school. The room is a specially constructed blue room which is padded and which is approximately 10 feet square with a secure door and window, through which the whole of the room cannot be seen when the door is closed. The door cannot be locked. The room is said to have or have had a calming influence upon C. The purpose of the padding is to try and prevent C injuring himself in and on the structure of the room. At the time the room was introduced it was agreed, at least as between the parties to these proceedings who were then involved, that it was in his best interests to provide and use such a facility.

Appendix 5

[4]In the local authority’s amended Statement of Facts and Grounds in response to C’s Claim for Judicial Review reliance was placed on an internal school guidance document for behaviour management i.e. the use of the blue room and physical management techniques as follows:

“Staff Management of the Blue Room Staff will only hold the door shut from outside the blue room, preventing him from leaving the room if he is attempting to be or to continue with his aggressive outburst. There are other occasions where [C] might try to exit the blue room when he is undressed, at these times staff encourage [C] to go back into the blue room and get dressed. We can not allow him to compromise his privacy and dignity by exposing himself to others and in addition it is not appropriate for other young people to be exposed to his naked body. Physical management [The school] uses a BILD approved physical management system called CPI (Crisis Prevention Institute). If [C] becomes aggressive or self injurious staff will use one of the following: • Transport Position: two staff, one either side of him, all facing forward, linking his arms and walking him to and into the blue room • Seated Transport/Transport Seated: this is used on the bus and is normally instigated by [C]. This involves two staff sat next to [C], linking his arms, and steadying him, blocking his aggression and self-injury. • Withdrawal door held: This is when [C] is in the blue room and staff remain outside the room, holding the door shut, preventing him from leaving if he is being aggressive to staff or others. • Withdrawal door NOT held: This is when [C] requests the blue room and staff do not need to prevent [C] from leaving the room, he is not seen as a risk at this time. However, [C] might go into the blue room of his own accord, become agitated and attempt aggression so withdrawal with the door held. Staff are not required to complete data on when [C] has self-withdrawn as staff are not imposing any sanctions on him at this time. However, some do out of personal interest, hence the availability of some data on this. From time to time we collect sample data on his use of the blue room but we have not done so for some time.”

Physical management • Transport Position: two staff, one either side of him, all facing forward, linking his arms and walking him to and into the blue room • Seated Transport/Transport Seated: this is used on the bus and is normally instigated by [C]. This involves two staff sat next to [C], linking his arms, and steadying him, blocking his aggression and self-injury. • Withdrawal door held: This is when [C] is in the blue room and staff remain outside the room, holding the door shut, preventing him from leaving if he is being aggressive to staff or others. • Withdrawal door NOT held: This is when [C] requests the blue room and staff do not need to prevent [C] from leaving the room, he is not seen as a risk at this time. However, [C] might go into the blue room of his own accord, become agitated and attempt aggression so withdrawal with the door held. Staff are not required to complete data on when [C] has self-withdrawn as staff are not imposing any sanctions on him at this time. However, some do out of personal interest, hence the availability of some data on this. From time to time we collect sample data on his use of the blue room but we have not done so for some time.”

Physical management

[5]It is asserted by the local authority that although C’s use of the blue room significantly increased in 2010 there were behaviour support plans in place the purpose of which was to try and reduce the use of the room. The evidence from the school is that despite the school’s approach to C, his behaviours have become less controlled to the extent that since September 2010 education and activities are provided in his accommodation. The behaviours involve not only significant self harm but also physical assaults on staff which are frequent and sometimes serious. The most notable examples being a broken nose and a detached retina leading to loss of sight in one eye.

[6]By a claim made in the administrative court for judicial review on the 15 September 2010, C by his litigation friend and mother, LM, sought against the local authority the following relief: i) An appropriate care plan; ii) Disclosure of his behavioural support plan relating to the restraint of him by others; iii) Disclosure of all incidents of restraint and the duration of the same in the preceding 9 months; iv) Disclosure of the qualifications and training of all staff involved in his care; v) A declaration that the local authority had breached his article 3 and/or 5 and/or 8 ECHR rights vi) A mandatory order that the local authority provide him with an appropriate care plan vii) A mandatory order that the local authority make transitional arrangements for adult services provision including an appropriate pathway plan; viii) A mandatory order for the disclosure of a safeguarding investigation (report) relating to an allegation of abuse in January 2010; ix) A mandatory order requiring the local authority to provide C’s mother with details of his daily care; and x) Damages for breach of his article 3, 5 and 8 ECHR rights.

[7]The relief sought included a referral to the Autism Treatment Trust and an allegation antecedent to that relief that the local authority had failed to fund the same. That relief was not pursued and during the course of the proceedings was withdrawn. The failures relied upon as against the local authority were: i) to put in place any or any adequate transitional arrangements for C including the failure to assess him or to prepare a pathway plan in time for his 18th birthday; ii) to prepare a care plan which provides for the transfer of C’s residence from the school to a suitable adult placement in time for the end of C’s placement at the school in 2011; iii) to put in place appropriate services to ensure that he has an adequate quality of life by: a) secluding C in the blue room in conditions which amount to an unlawful deprivation of his liberty and a breach of his article 3, 5 and 8 rights; b) accommodating C in an environment that amounts to a breach of his article 5 and 8 rights; c) failing to take steps since January 2010 when C’s challenging behaviours increased, leading to him spending many hours every day in seclusion and having extremely limited access to outside space and the community in breach of his article 3 and 8 rights; iv) to provide C’s mother with information about his care, in particular details of the safeguarding investigation referred to.

[8]By agreement, the Official Solicitor was substituted as C’s litigation friend and has pursued the proceedings on behalf of C. C’s mother, LM and his adult brother, LPM were made interested parties to the judicial review claim and respondents within the Court of Protection proceedings. Although LM has acted in person, LPM has had the benefit of public funding and together they have taken a very full part in the court’s process.

[9]On the 8September 2010 the local authority commenced proceedings in the Court of Protection asking for permission to make an application and for declarations as to capacity and best interests and for an expedited hearing to consider whether the arrangements to which C was subject constituted a deprivation of liberty and/or were in his best interests.

[10]On the 15 September 2010, a direction for expedition was made by His Honour Judge Pelling QC sitting in the Administrative Court in Manchester where this claim has been lodged and heard and as a consequence, all applications both in the Administrative Court and the Court of Protection were remitted to be heard concurrently by this court on the 8 October 2010.

[11]On that day and in reliance upon written evidence provided by Dr Lisa Rippon, Consultant Psychiatrist for Young People with a Learning Disability and Mrs E who is a chartered clinical psychologist, it was declared that C did not have the capacity to conduct litigation and did not have the capacity to make decisions about his residence and care. Subsequently, written evidence provided by Dr Arvind Lowe, Consultant Psychiatrist, confirmed C’s continuing incapacity in both respects. Agreement was reached to undertake and implement a comprehensive review of C including functional assessments, speech and language therapy assessment, medical assessments and expert evidence relating to the use of the blue room, nakedness and sexual development and protection. That agreement included the implementation of existing recommendations relating to C’s sensory dysfunctions by a specialist speech and language therapist, Ms L. Ms L had already advised that C has significant difficulties with proprioceptive functioning (the way that he processes his body movements) and modulation (the regulation of his sensory processing and behaviour). She was commissioned to provide additional assistance and a sensory profile. Significant directions were also made for the recording of the use of the blue room by C.

[12]It is important to note that on the evidence filed and heard on the 8 October 2010, the court was unable to hold that any deprivation of liberty as may be implicit in the arrangements for C’s residence and care at the school was lawful. Furthermore, having regard to the nature and extent of the disagreements between the parties about the efficacy of those arrangements, it was not possible to make a best interests declaration about C’s residence and care.

[13]On the 27 October 2010 a further urgent interim hearing was conducted in the concurrent proceedings and an interim declaration was made that to the extent that C’s general living arrangements at the school amounted to a deprivation of his liberty such deprivation was lawful being in C’s best interests. That declaration did not extend to the lawfulness of the use of the blue room, the local authority having wisely elected not to pursue that issue at that time.

[14]At the conclusion of this part of these proceedings, all remedies sought against the local authority have been compromised save for damages for the alleged Human Rights Act 1998 [HRA 1998] claims. Those claims have been remitted to be heard by this court in the Queen’s Bench Division of the High Court and directions have been made for pleadings to be settled. Accordingly, there now exist: i) An appropriate care plan ii) Appropriate transitional arrangements for C’s move into adulthood and out of the residential setting provided by the school by July 2011, including a pathway plan, an identified bespoke placement with social and health care support services, a behaviour support plan and agreed inter-disciplinary expert advice to include specialist sensory occupational therapy and advice about restraint and seclusion issues iii) A mechanism for review, the obtaining of inter-disciplinary advice and information sharing with all involved in C’s care including his family.

[15]This judgment, which provides the basis for the declaratory relief given and the agreements entered into by the parties, does not deal with the historic allegations which it will readily be apprehended are significant. A further hearing dealing with the history for the purposes of damages claims under the HRA 1998 will take place later this year. For this reason, this preliminary judgment will look forward to the recommended future placement and services for C rather than to the disputed history.

[16]The expedited judicial review hearings have been heard concurrently with Court of Protection proceedings with a logical albeit at times complex case management matrix being developed to identify and resolve issues sequentially and as swiftly as possible. The court has read a great deal of factual and opinion evidence to inform the process of its own judgement and to identify issues for expert assessment and opinion. Where the evidence of fact remained relevant and in dispute, a process of early neutral evaluation had to be performed to summarise the best case of each party on any particular issue in order to obtain an opinion from the experts as to C’s best interests having regard to the different factual scenarios relied upon by each party. As the court anticipated, although the disputed facts may be very relevant to adversarial damages claims and their defence, they were less relevant to the issues in judicial review or the best interests determination and in the final event, as I shall describe, the experts effectively agreed.

[17]Oral evidence was heard from 9 experts, including at a concurrent evidence day when 7 of the experts were sworn together and were taken through an agreed agenda of issues for resolution within which they were encouraged to comment and add evidence to that of others as each issue was addressed in turn. It is in the nature of such a forum that the court is in control, sets the agenda with the agreement of the parties and then introduces the issues to the experts under each heading on the agenda. Supplementary questions are permitted from parties and the overall effect is more focused than traditional examination and cross examination and is particularly suited to the inquisitorial and collaborative approach of the Court of Protection.

[18]The experts who gave oral evidence were: i) Mrs E, Clinical Psychologist ii) Ms L, Occupational Therapist and Advanced Practitioner in Sensory Integration iii) Ms S, Speech and Language Therapist iv) Ms Sharon Paley, Registered Nurse for People with Learning Disabilities v) Dr Lisa Rippon, Consultant Psychiatrist vi) Dr Arvind Lowe, Consultant Psychiatrist in Learning Disability vii) Dr Peter Carpenter, Consultant Psychiatrist in Learning Disabilities viii) Chris Read, Independent Social Worker ix) Chris Wall, Independent Social Worker

[19]Lest it be thought that there was a proliferation of experts, it should be remembered that with the exception of Ms L, and Mrs E , expert evidence of the nature and extent required by the court and the parties did not exist at the commencement of proceedings and some of the evidence commissioned went either to narrow i.e. discrete and very specialist areas of knowledge or to issues which remain seriously in dispute and where individual parties wished to be advised by an expert who they were prepared to pay for on the basis that his or her advice would be available to them and the court in respect of the contested issues which are yet to be resolved.

The context

[20]Without determining the disputed facts, it is necessary to set out the context which is that C’s mother asserts that C’s behaviour has deteriorated to such an extent that what are prosaically known as ‘the strategies for his behaviour management’ have been invoked very frequently: many times on a single day and on most days if not every day. In particular, this has included confinement or seclusion in the blue room and the use of restraint techniques including the ‘transport position’, the ‘team control position’ or other restraint on a regular basis: on average more than twice a day. In June 2010, 2090 instances of challenging behaviour by C were logged, an average of 70 a day. In the same month, the log indicates that the blue room door was held so as to confine C on 192 occasions, that is on average 6.4 times a day and the effect, says LM, is that C is confined for many hours a day.

[21]On 27 January 2010 a safeguarding incident occurred involving a care worker who used physical restraint to force C to dress. An investigation concluded that the restraint was inappropriate.

[22]LM visits her son regularly and has seen evidence of him urinating and defecating in the blue room, which does not contain a toilet facility and engaging in distressing behaviours including the smearing and eating of his own faeces. She reports that there is frequently an acrid and pungent smell of faecal matter in the vicinity of the room which is overpowering in the room itself. The most recent deterioration in C’s aggressive and self-injurious behaviours from January 2010 is said to have coincided with changes to his living environment which include the admission of another resident, A, on to the same corridor as C who exhibits noisy, disruptive and destructive traits and also changes to the complement of the care staff who work with C. LM’s statement of evidence and LPM’s statement in support contain the details of a mother’s and brother’s concerns but just one example from C’s mother is graphic enough to set the scene:

“When I do so, my son he presents as a pitiful figure. He is naked virtually all of the time. He presents as a tall, emaciated young man covered in bruises and scabs with protruded elbows and joints, malformed feet and cuts over his eyes. I hear him wailing, crying, shouting. He bangs his head with his fist on the window surround. He hurts himself …(he) always appears ashen faced and pale, partly because he never gets out of the Blue Room or into the fresh air”

[23]I emphasise that some of the key issues about C’s presentation are denied and some will have to be litigated. Mother’s pen picture of her son has itself to be taken in context and I heard the head teacher of the school at the beginning of these proceedings. He was undoubtedly a dedicated man, albeit one who in the judgment of this court has lost sight of the essential human problems that need to be solved in the morass of structural and guidance issues which also arise. In the context of conceding that the involvement of the court had never been contemplated, he said:

“C’s outbursts are some of the most severe I have seen and have resulted in some of the most significant injuries to staff that I have seen …. the blue room is used to manage his behaviour when he is aggressive or self injurious … or when he takes himself there … given the conditioning effect of the blue room I do not see any prospect of an immediately successful [alternative] intervention other than physical restraint”

[24]It is common ground that C has become habituated to the use of the blue room. It is not only a room where he is secluded and/or confined, but also a room to which he has been encouraged to go and indicate that he wishes to go as a safe place. There are real issues about the appropriateness of the room for these disparate purposes. Despite its use, C continues to self harm including in the room and his social activities are significantly curtailed. There is an issue about the appropriate staffing level for C when he is distressed and self harm is likely to occur and also to facilitate access to others in the community i.e. to enable any normal socialisation by him. There is also an issue about the possible harmful side effects of certain medications if taken together.

[25]One of the aspects of his behaviour is that he has increasingly found it necessary to remove all of his clothes. For a young man with the diagnoses he possesses, that is apparently not an entirely unexpected behaviour. There are very real sensory and perception issues involving touch, the feel of different materials, temperature, his ability to tolerate sensory stimulations and other extraneous but concurrent issues such as his tolerance of discomfort including noise and his own gastric symptoms. This description is not intended to be exhaustive or comprehensive: merely to example the complexity of the problem faced by assessors and carers alike. In practical terms there are real issues relating to safeguarding i.e. his personal dignity, privacy, safety (both physical and sexual) and emotional health which arise and which need the most carefully constructed and advised guidelines for staff to follow. A significant part of this hearing has involved the de-construction of existing practices and guidelines and the re-construction of new guidelines which meet the best interests of C for the time being.

[26]Although a document existed in January 2010 which purported to be a pathway plan: it was incomplete and was neither signed nor dated. LM says that the assessments then proposed were not undertaken or if they were they were not provided to her. The consequence alleged is that at the commencement of proceedings there was no plan for the transition of C from the school which in July this year he has to leave nor was there a plan which provided for his residence and care as an adult and as a person who was formerly a ‘looked after’ child. Likewise, although there exists a care plan and associated behaviour support plans and statutory review documentation, the extent to which those documents exhibit that any short or long term planning had taken place or even whether the documents reflect the reality of C’s life in the school are issues of fact which may need to be determined.

[27]The local authority say in reply that the school is inspected twice a year by Ofsted’s inspectors who have evaluated the school as satisfactory and meeting the full range of needs and interests of its pupils. Its boarding provision is good, and the overall welfare, health and safety of pupils is described as outstanding. The school is a very safe environment. Despite this, the local authority concede that “an Ofsted inspection of 28 April 2010 which reported that “one young person chooses to use a seclusion room excessively” was a mild response to an extraordinary situation and was an analysis lacking in rigour”.

[28]They also say that the blue room was designed by an autism adviser in 2007 with the approval at the time of C’s mother. They comment that until 2010 its use had not caused any adverse comment in the statutory review process and that the intention had been to reduce his ‘dependence’ upon it. They say that there are frequent planned activities for C inside and outside the school, not all of which can take place because of C’s behaviours at any particular time. Although they concede that seclusion and restraint in the blue room is a deprivation of C’s liberty which if not authorised by the court is unlawful and in breach of his

article 5 ECHR

rights, they deny that seclusion and restraint are in breach of his article 3 and/or 8 ECHR rights. They deny that it is inappropriate to seclude C in the blue room when he is naked because of the need to protect his dignity or that he is left to urinate and defecate, smear, mouth or eat his own faeces or self harm in the blue room.

[29]From the earliest stages in the Court of Protection proceedings the local authority has agreed to implement the recommendations of Ms L, Occupational Therapist, in particular a report of the 26 September 2010 in which she recommends sensory activities which are designed to meet C’s needs and which are to be integrated with staff approaches to his behaviours. Despite this, it should be noted that Mr Wall has commented in writing about the Head Teacher’s dismissive attitude to the behavioural approach suggested by Ms L and his ‘programming approach’ to the use of the blue room and nakedness. Although these are issues of fact yet to be determined, the court notes for future determination that it was Dr Rippon who recommended for C as long ago as 2007 the sensory and related behavioural strategies which are now agreed. Mr Wall says that if C feels the equivalent of neurological pain at certain times when his skin is touched and his desire to be naked is a form of tactile defensiveness, then he will understandably go where he is able to be naked i.e. the blue room where he can avoid pain and irritation. Whether and why these and similar issues have not been addressed before now will have to be the subject of further consideration by the court, but there is before the court a strong prima facie case condemning the lack of a problem solving inter disciplinary approach to C’s needs.

The statutory schemes

[30]It is important to understand that C’s mother has at all times exercised her parental responsibility in respect of C without restriction. As a child and young person from the age of 6 to 18, C was accommodated by the local authority in accordance with section 20 of the Children Act 1989 [CA 1989] i.e. at the request of and with the agreement of his mother. At no time before these proceedings began did the local authority commence proceedings under the CA 1989 for a statutory order including for an authorisation to keep C in secure accommodation under section 25 CA 1989. At no time until it was known that the claim in judicial review was to be issued did the local authority make an application to the Court of Protection for a declaration as to the legality of the deprivation of C’s liberty nor did they themselves or the organisation which operated the school have the power to authorise any deprivation of liberty under Schedules A1 and 1A of the Mental Capacity Act 2005 [MCA 2005] or otherwise (i.e. the power contained in Schedule A1 MCA 2005 for the managing authority of a hospital or care home to authorise deprivation of liberty for those persons who are not ineligible to be deprived of their liberty in accordance with schedule 1A). As I shall set out in more detailed in relation to the implications of the same, the school is a children’s home not a care home or hospital for the purpose of this and analogous legislation.

[31]The statutory schemes which regulated C’s care are as follows. He was an accommodated child in accordance with section 20 CA 1989: “20. Provision of accommodation for children: general(1) Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of –

a. […]

b. […]

c. The person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.

(2) […]

(3) Every local authority shall provide accommodation for any child in need within their area who has reached the age of sixteen and whose welfare the authority consider is likely to be seriously prejudiced if they do not provide him with accommodation.

(4) A local authority may provide accommodation for any child within their area (even though a person who has parental responsibility for him is able to provide him with accommodation) if they consider that to do so would safeguard or promote the child’s welfare.

(5) […]

(6) […]

(7) […]

(8) Any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section.

(9) – (11) […].” a. […] b. […] c. The person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.

[32]When he turned 16 he was an eligible child within the meaning of paragraph 19B of Schedule 2 of the CA 1989 as inserted by the Children (Leaving Care) Act 2000 [CLCA 2000] having regard to Regulation 3 of the Children (Leaving Care) (England) Regulations 2001 [CLCA Regs 2001]. By sections 23B(3) and 23E and schedule 2 CA 1989 as amended by sections 1 and 3 CLCA 2000 the local authority is required to prepare a ‘pathway plan’ for an eligible child based upon an assessment of his needs which must set out the advice, assistance and support which the local authority intends to provide, both while the local authority intends to look after the child and in the future. In R (J) v. Caerphilly CBC

[2005] EWHC 586 (Admin)

, Munby J. gave guidance as to who should prepare a pathway plan, what such a plan should contain and how it should be implemented. The assessment of needs should involve an evaluation of the nature, extent and severity of the child’s needs so as to be sufficiently precise as to the manner in which those needs are to be met (see R (G) v. Nottingham CC & Nottingham University Hospital

[2008] 1 FLR 1668

[33]By sections 23B(2) and 23D and paragraph 19C of schedule 2 CA 1989 the local authority is obliged to appoint a personal adviser for C who is independent of the local authority: see also R (J) v. Caerphilly CBC supra.

[34]Once an eligible child turns 18 the local authority’s duties to provide accommodation and care under the CA 1989 cease and the local authority’s statutory obligations in respect of adults apply (see, inter alia sections 21 and 29 National Assistance Act 1948, section 2 Chronically Sick and Disabled Persons Act 1970 and section 47 NHS and Community Care Act 1990). However, the duties to assess need and maintain a pathway plan and personal adviser continue until the eligible child (now referred to as the former relevant child) is 21: section 23C CA 1989.

[35]The CLCA Regs 2001 prescribe certain detail relating to the assessment and the pathway plan which is required of the local authority, for example, at regulations 5, 7, 8 and 9:

“5 Assessments and pathways plans – general (1) The responsible authority must prepare a written statement describing the manner in which the needs of each eligible and relevant child will be assessed. (2) The written statement must include, in relation to each child whose needs are to be assessed, information about, in particular – (a) the person responsible for the conduct and co-ordination of the assessment; (b) the timetable for the assessment; (c) who is to be consulted for the purposes of the assessment (d) the arrangements for recording the outcome of the assessment; (e) the procedure for making representations in the event of a disagreement. (3) The responsible authority must make a copy of the statement available to the child and the persons specified in regulation 7(5). (4) Nothing in these Regulations shall prevent the carrying out of any assessment or review under these Regulations at the same time as any assessment, review or consideration under any other enactment. 7 Assessment of needs (1) The responsible authority shall assess the needs of each eligible child, and each relevant child who does not already have a pathway plan, in accordance with these Regulations. (2) The assessment is to be completed – (a) in the case of an eligible child, not more than three months after the date on which he reaches the age of 16 or becomes an eligible child after that age; and (b) […] (3) Each responsible authority shall ensure that a written record is kept of – (a) the information obtained in the course of an assessment; (b) the deliberations at any meeting held in connection with any aspect of an assessment; and (c) the results of the assessment. (4) In carrying out an assessment the responsible authority shall take account of the following considerations – (a) the child’s health and development; (b) the child’s need for education, training or employment; (c) the support available to the child from members of his family and other person; (d) the child’s financial needs; (e) the extent to which the child possesses the practical and other skills necessary for independent living; and (f) the child’s needs for care, support and accommodation. (5) The responsible authority shall, unless it is not reasonably practicable to do so, seek and take into account the views of – (a) the child’s parents; (b) any person who is not a parent but has parental responsibility for the child; (c) any person who on a day to day basis cares for, or provides accommodation for the child; (d) any school or college attended by the child, or the local education authority for the are in which he lives; (e) any independent visitor appointed for the child; (f) any person providing health care or treatment to the child; (g) the personal adviser appointed for the child; and (h) any other person whose views the responsible authority, or the child consider may be relevant. (1) The responsible authority must prepare a written statement describing the manner in which the needs of each eligible and relevant child will be assessed. (2) The written statement must include, in relation to each child whose needs are to be assessed, information about, in particular – (a) the person responsible for the conduct and co-ordination of the assessment; (b) the timetable for the assessment; (c) who is to be consulted for the purposes of the assessment (d) the arrangements for recording the outcome of the assessment; (e) the procedure for making representations in the event of a disagreement. (3) The responsible authority must make a copy of the statement available to the child and the persons specified in regulation 7(5). (4) Nothing in these Regulations shall prevent the carrying out of any assessment or review under these Regulations at the same time as any assessment, review or consideration under any other enactment. (1) The responsible authority shall assess the needs of each eligible child, and each relevant child who does not already have a pathway plan, in accordance with these Regulations. (2) The assessment is to be completed – (a) in the case of an eligible child, not more than three months after the date on which he reaches the age of 16 or becomes an eligible child after that age; and (b) […] (3) Each responsible authority shall ensure that a written record is kept of – (a) the information obtained in the course of an assessment; (b) the deliberations at any meeting held in connection with any aspect of an assessment; and (c) the results of the assessment. (4) In carrying out an assessment the responsible authority shall take account of the following considerations – (a) the child’s health and development; (b) the child’s need for education, training or employment; (c) the support available to the child from members of his family and other person; (d) the child’s financial needs; (e) the extent to which the child possesses the practical and other skills necessary for independent living; and (f) the child’s needs for care, support and accommodation. (5) The responsible authority shall, unless it is not reasonably practicable to do so, seek and take into account the views of – (a) the child’s parents; (b) any person who is not a parent but has parental responsibility for the child; (c) any person who on a day to day basis cares for, or provides accommodation for the child; (d) any school or college attended by the child, or the local education authority for the are in which he lives; (e) any independent visitor appointed for the child; (f) any person providing health care or treatment to the child; (g) the personal adviser appointed for the child; and (h) any other person whose views the responsible authority, or the child consider may be relevant. (1). A pathway plan prepared under 19B of Schedule 2 to, or section 23B of, the Act, must be prepared as soon as possible after the assessment and must include, in particular, the matters referred to in the Schedule. (2). The pathway plan must, in relation to each of the matters referred to in the Schedule, set out – (a) the manner in which the responsible authority proposes to meet the needs of the child; and (b) the date by which, and by whom, any action required to implement any aspect of the plan will be carried out. (3). The pathway plan must be recorded in writing. (1). The responsible authority shall review the pathway plan of each eligible, relevant and former relevant child in accordance with this regulation. (2). The responsible authority shall arrange a review – (a) if requested to do so by the child or young person; (b) if it, or the personal adviser considers a review necessary; and (c) in any case, at intervals of not more than six months. (3). In carrying out a review, the responsible authority shall, to the extent it considers it appropriate to do so, seek and take account of the views of the persons mentioned in regulation 7(5). (4). The responsible authority conducting a review must consider – (a) in the case of an eligible or relevant child, whether, in relation to each of the matters set out in the Schedule, any change to the pathway plan is necessary; and (b) [……] (5). the results of the review must be recorded in writing.”

[36]The local authority is required to complete a pathway plan in order to comply with its statutory obligations, regardless of any view that it might come to that an alternative form of care planning is appropriate: R (P) v. Newham LBC

[2004] EWHC 2210 (Admin)

[37]Statutory guidance has been issued under section 7 of the Local Authority Social Services Act 1970 [LASSA 1970] in respect of the CLCA 2000 and the CLC Regs 2001 as ‘Children Leaving Care: Regulations and Guidance’ [the CLC Guidance]. The entirety of the guidance bears consideration but the following provisions are particularly relevant:

“Chapter 4 : Principles underlying preparation for leaving care 2. The principles underlying preparation for leaving care should reflect good child care practice generally, following the principles of the Children Act 1989. 3. Services for young people must take account of the lengthy process of transition from childhood to adulthood, to reflect the gradual transition of a young person from dependence to independence. The support provided should be, broadly, the support that a good parent might be expected to give. 4. As with the Pathway Plan, where it applies, parents should be invited to help formulate the continuing care plan (if they are not estranged from the young person) [.…] 9. Preparation for leaving care and the provision of aftercare must be planned in conjunction with all other interested agencies, e.g. education and housing authorities, the Connexions Service/Careers Service, health authorities and, where appropriate, other local authorities. These agencies should be invited to contribute to young people’s continuing care plans and, as they reach 16, to their Pathway Plans. [….] 17. Disabled young people may well face more barriers than other young people who are being cared for or leaving care, and may also have needs specifically related to impairment. It is essential to ensure that these needs are met when preparing these young people for leaving care and subsequently, providing aftercare. At the same time, care must be taken to ensure that these young people do not fail to achieve their full potential as a result of under-expectation on the part of those caring for them. [.…] 9. Preparation for leaving care and the provision of aftercare must be planned in conjunction with all other interested agencies, e.g. education and housing authorities, the Connexions Service/Careers Service, health authorities and, where appropriate, other local authorities. These agencies should be invited to contribute to young people’s continuing care plans and, as they reach 16, to their Pathway Plans. [….] 17. Disabled young people may well face more barriers than other young people who are being cared for or leaving care, and may also have needs specifically related to impairment. It is essential to ensure that these needs are met when preparing these young people for leaving care and subsequently, providing aftercare. At the same time, care must be taken to ensure that these young people do not fail to achieve their full potential as a result of under-expectation on the part of those caring for them. Chapter 5: Needs Assessment and Pathway Plan 20. The Pathway Plan should be pivotal to the process whereby young people map out their future, articulating their aspirations and identifying interim goals along the way to realising their ambitions. It will also play a critical part in making the new arrangements contained within the 2000 Act work. Each young person will be central to drawing up their own plan, setting out their own goals and identifying with their personal adviser how the local authority will help them. The authority should work to ensure that the Plan is owned by the young person and is able to respond to their changing needs and ambitions. It should look ahead at least as far as the young person’s 21st birthday and will be in place beyond that where the young person is in a programme of education or training which takes them past that age. [….] 28. Councils should take steps to make sure that young people have the best chance to succeed in their accommodation. They should – • avoid moving young people who are settled unless it is unavoidable or offers clear advantages; • assess young people’s needs and prepare them for any move; • ensure that the accommodation meets any needs relating to physical and/or sensory impairment and/or learning difficulty; • where practicable, offer a choice in the type and location of accommodation; • set up a package of support to go with the accommodation; • have a clear financial plan for the accommodation; and • have a contingency plan in case the proposed accommodation breaks down. [….] 52. Regulation 9(4) states that the responsible authority conducting a review must, so far as reasonable practicable in collaboration with the child or young person, consider whether there is any need to change any of the elements of the Pathway Plan prescribed in the Schedule. 53. The purpose of regular review is to check that the goals and milestones are still right for the young person, and that they are being met. It will make sure that levels of support, both financial and other, are adequate and are being delivered according to plan. It will take account of any unexpected developments and will revise the Plan accordingly. Chapter 8: Care leavers aged 18-21 1. The Children Act 1989 as amended by the Children (Leaving Care) Act 2000 requires the responsible authority to continue to provide various forms of assistance to care leavers from the age of 18, if they have previously been eligible or relevant children. They are described in the 2000 Act (section 23C) as former relevant children. 2. These duties run until the young person reaches the age of 21 except for the duty to assist with education and training, which carries on to the end of the programme agreed and set out in the Pathway Plan.”

[38]At the time of the safeguarding incident in January 2010, C was a child. The local authority is required by section 7 LASSA 1970 to act under the general guidance of the Secretary of State in respect of their social services (which includes children’s services) functions unless there are exceptional reasons to justify a variation from the same. There have been in place throughout C’s childhood Working Together guidelines which are issued by the Secretary of State under section 7. The latest edition entitled ‘Working together to safeguard children’ was issued by the Secretary of State for Children, Families and Schools in 2010 and provides:

“6.45 Safeguards for disabled children are essentially the same as for non-disabled children. Particular attention should be paid to promoting a high level of awareness of the risks of harm and high standards of practice, and strengthening the capacity of children and families to help themselves. Measure should include: • [.…] • an explicit commitment to, and understanding of disabled children’s safety and welfare among providers of services used by disabled children; • close contact with families, and a culture of openness on the part of services; • guidelines and training for staff on good practice in intimate care; working with children of the opposite sex; handling difficult behaviour; consent to treatment; anti-bullying strategies; and sexuality and sexual behaviour among young people, especially those living away from home; and • guidelines and training for staff working with disabled children aged 16 and over to ensure that decisions about disabled children who lack capacity will be governed by the Mental Health Capacity Act (sic) once they reach the age of 16. Appendix 5 Supporting those involved 4. Parents or carers of a child or children involved should be told about the allegation as soon as possible if they do not already know of it (subject to paragraph 15 below). They should also be kept informed about the progress of the case, and told the outcome where there is not a criminal prosecution. That includes the outcome of any disciplinary process.”

[39]In 2002 the Government also issued under section 7 LASSA 1970 statutory guidance entitled ‘Guidance for Restrictive Physical Interventions’ a document which describes itself as “How to provide safe services for people with Learning Disabilities and Autistic Spectrum Disorder”. There is no question that this guidance applied to C and to the school and the guidance makes extensive cross reference to good practice both in implementing section 550A of the Education Act 1996 [EA 1996] which allows staff at a school to use reasonable force in relation to a pupil for the purpose of preventing him committing an offence, causing personal injury (including to himself) or damage to property and engaging in any behaviour prejudicial to the maintenance of good order and discipline, but also to other relevant guidance and good practice concerned with restraint and ‘physical interventions’. Whether this guidance was applied to C’s care both in spirit and as to the letter of the same will be a question for the next hearing in these proceedings. It follows that while C remains at the school this guidance continues to apply to him.

[40]Aside from re-iterating that the restriction of a person’s freedom of movement should be considered to be a form of physical restraint to be used only in exceptional circumstances, the guidance helpfully sets out the need for primary and secondary preventative strategies (paragraphs 5.1 to 5.4), the necessity for risk assessments (paragraphs 7.1 to 7.4), the necessity of good practice which is reflective of the guidance and the law (paragraphs 10.1 to 10.5), the obligation of proper recording (paragraphs 11.1 to 11.6) and the requirement for staff training (paragraphs 13.1 to 13.4).

[41]The local authority has also been given non statutory guidance by the same Government Department in July 2009 entitled ‘Safeguarding disabled children: Practice guidance’ which provides:

“3.20 In the event of allegations being made against an employee or a volunteer involving a disabled child, the safeguarding children policies and procedures of the agency or LSCB need to be instigated, in line with disciplinary procedures, where appropriate. This includes referring such allegations to the Designated Officer in the Local authority (LADO). In addition the procedures for managing allegations against people who work with children in appendix 5 of working Together to Safeguard Children (2006) should be adhered to. [….] 3.22 Where an employee or volunteer is dismissed or resigns during the course of investigations concerning the abuse of any child or vulnerable adult, a referral should be made to the Independent Safeguarding Authority (ISA) for consideration as to whether the individual should be barred from working with children and/or vulnerable adults.”

[42]That much of the statutory schemes which relate to C is not apparently in issue between the parties. The legislation and guidance relating to seclusion (and restraint in that context) is not agreed between the parties and in so far as it is relevant to this hearing, I shall set out the submissions of the parties and my conclusions in due course. What is agreed, however, is the HRA 1998 provisions through which the issues relating to detention, seclusion and restraint need to be viewed.

[43]Articles 3, 5 and 8 of the European Convention of Human Rights [ECHR] provide as follows:

“Article 3 No-one shall be subject to torture or to inhuman or degrading treatment or punishment Article 5 1. Everyone has the right to liberty and security of person. No-one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: […] (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts, or vagrants; 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the unlawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation. Article 8 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health and morals, or for the protection of the rights and freedoms of others.”

No-one shall be subject to torture or to inhuman or degrading treatment or punishment Article 5 (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts, or vagrants;

Article 8

[44]Public authorities are under a positive obligation under

article 3 ECHR

to protect people for whom they are responsible from inhuman and degrading treatment (see, for example Pretty v. UK

[2001] 2 WLR 1598

). A similar positive obligation arises under

article 8 ECHR

(see, for example R (Bernard) v. LB of Enfield [2003] HRLR 4). A failure to fulfil these obligations may sound in damages under the HRA 1998: R (Bernard) supra and R (Anufrijeva) v. LB of Southwark

[2004] QB 1124

. The local authority denies that the complaints made on behalf of C amount to a breach of his

article 3 ECHR

rights on the basis that article 3 provides protection against only the most serious ill treatment which is why it is incapable of justification: S v. Airedale NHS Trust

[2003] Lloyd’s Rep Med 21

and on appeal at

[2003] EWCA Civ 1036

, Thomas v. Baptiste

[2000] 2 AC 1

PC at 27, R (Prosser) v. SSHD

[2010] EWHC 845 (Admin)

at [18] and R (Limbuela) v. SSHD

[2006] 1 AC 396

. They also deny that they amount to a breach of his

article 8 ECHR

rights.

[45]In determining whether there is a deprivation of liberty within the meaning of

article 5 ECHR

, three conditions must be satisfied: i) An objective element of a person’s confinement in a particular restricted space for a not negligible time; ii) A subjective element, namely that the person has not validly consented to the confinement in question and such consent can only be valid if the person has capacity to give it; and iii) The deprivation of liberty must be one for which the State is responsible.

[46]These conditions and the fact that a deprivation of liberty without lawful authority would be a breach of C’s

article 5 ECHR

rights are settled law: see for example: Storck v. Germany

(2005) 43 EHRR 96

at paras [74] and [89], JE v. DE, Surrey County Council and EW

[2006] EWHC 3459 (Fam)

[2007] 2 FLR 1150

at para [77], G v. E and Ors

[2010] EWHC (Fam) 621

at para [77] and Re MIG and MEG

[2010] EWHC 785 (Fam)

at paras [102], [127 to 206] in particular at [151] as upheld by the Court of Appeal at

[2010] EWCA Civ 822

. As in the case of C, the local authority would be responsible for the deprivation of liberty where it is closely involved in the care plan and service provision: A Local Authority v. A, B and Equality and Human Rights Commission

[2010] EWHC (Fam) 978

at paras [96] and [110-162].

[47]It should be noted that although in consideration of the objective element the court will take into account a wide range of factors including type, duration, effects and manner of implementation of the measure in question, the distinction between a deprivation and a restriction of liberty is one of degree of intensity not of nature and substance: Guzzardi v. Italy (1980) 3 EHRR. The key factor is whether the person is, or is not, free to leave. That can be tested by asking whether those treating and managing the person exercise complete and effective control over the person’s care and movements: HL v. United Kingdom

(2004) 40 EHRR 761

The local authority’s concessions and certain settled facts

[48]It is common ground that C is unable to leave the school nor is he able to leave the locked corridor on which his bedroom, bathing and other facilities are located i.e. it is submitted that the general conditions in which he lives amount to a deprivation of his liberty. In addition he is secluded in the blue room without being able to leave which arguably amounts to a further deprivation of his liberty. Between his 16th birthday on 29 July 2008 when by reason of section 2 MCA 2005 the jurisdiction of the Court of Protection could have been invoked and his 18th birthday and indeed until interim relief was obtained in these proceedings, there was no authority by court order or statutory power for C to be deprived of his liberty either generally or in the blue room. It is now conceded by the local authority that from the time C reached the age of 16 the approach of the MCA 2005 was more relevant to his situation than that of the CA 1989. That approach was not applied to C.

[49]The local authority maintain their denial that C’s seclusion and restraint in the blue room or elsewhere amounts to a breach of his article 3 and/or 8 ECHR rights but now concede that when he is secluded and restrained in the blue room as a consequence of his extreme challenging behaviours that amounts to a deprivation of his liberty and in so far as that is not authorised by the court, such a deprivation is unlawful and in breach of his

article 5 ECHR

rights.

[50]On 14 October 2010 the local authority also conceded that they were in breach of their statutory obligations under the CA 1989, the CLCA 2000, the CLC Regs 2001 and the CLC Guidance to provide C (and LM) with a pathway plan setting out the arrangements for his transition to adult social services in sufficient detail to accord with the regulations and case law. That plan should have been created when C turned 16 and it was not until January 2010, 6 months before C became 18 that an incomplete pathway plan was produced. A plan which complies with the local authority’s obligations was eventually produced within these proceedings and as a consequence of the inter-disciplinary working directed by the court within both its Administrative Court and Court of Protection jurisdictions. In addition, although not formally conceded, there is no evidence before this court that C was ever provided with a personal adviser. The treatment of the safeguarding incident by the local authority was in breach of the Government’s statutory guidance at least in respect of its notification to C’s mother in sufficient detail for her to take a reasoned position so as to be able to help her son.

[51]At the commencement of these proceedings and despite there being in existence an acknowledged end date in July 2011 beyond which C would not be able to remain at the school, there was no care plan which provided for the move to a new place of residence and care. Even the nature of the new placement was still the subject of discussion and dispute. There was no funding agreement about his future care and its health and social care components. The rival contentions included a specialist healthcare facility that was not then identified, adapted or staffed and home care in a facility not yet identified, purchased, built, adapted or staffed. It was necessary to make a decision about this aspect of C’s care sooner rather than later not least to permit the plan once formulated to be implemented by detailed work including the adaptation of premises and the employment of dedicated specialist staff. In the event, and for which the court and all parties remain very grateful, the PCT identified an appropriate resource which will, when renovated and adapted, be a complete living environment within a specialist healthcare facility with dedicated staff, new procedures developed as a bespoke response to C’s needs and managed and advised by a new inter-disciplinary team of experts.

[52]From the start of the court’s involvement, there were secondary but important issues relating to C’s best interests. Although the primary issues were the identification and approval of new residence and care arrangements and deprivation of liberty safeguards, there were also important best interest issues surrounding C’s socialisation (in and out of the school), nakedness and the shared accommodation at the school with another young person, A, whose needs are similar to those of C save that A becomes destructive of material items and property when his behaviour is challenging. It was acknowledged in the written evidence of the Head of Residential Services at the school that the behaviours of C and A impact on each other and certainly so far as C is concerned, it has become common ground during this hearing that the impacts are exclusively adverse to the extent that the court has felt compelled to declare that it is not in C’s best interests to share accommodation with A.

[53]C’s use of the garden area at the school is compromised by his behaviours and needs, not least his nakedness. The school has not been able to find constructive ways around a 2010 Ofsted inspection opinion that his personal dignity would be compromised were he to have access to the sensory garden at the school. There is an overwhelming feeling that at no time does C get to exercise his own privacy, with or without clothes, so that he can do what he really likes doing in his own home: playing in the open air and preferably with water which he finds relaxing and a positive sensory perception.

[54]Solutions to the problems presented by C’s needs in particular his need to be naked and how that and other behaviours are managed so as to be lawful and in his best interests have been the continuing subject matter of these proceedings. Without prejudice to the arguments yet to be heard on historic illegality and ECHR non compliance, new guidelines have been crafted based upon the expert evidence this court has heard and read. The framework within which that has occurred is that provided by the Mental Capacity Act 2005 [MCA 2005] albeit with the necessary overlay of the remedies available to the High Court whether in the Administrative Court, the inherent jurisdiction in support of the Court of Protection or the Court of Protection as a superior court of record: see section 47(1) MCA 2005.

The Court of Protection jurisdiction

[55]The jurisdiction of the Court of Protection is defined by the provisions of the MCA 2005 which came into force on 1 October 2007. A decision made by the court under the MCA 2005 must be in the best interests of the protected person, C. By section 1 (6) of the Act:

“before the act is done or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action”

[56]There is power in the Court of Protection by section 48 MCA 2005 to grant interim declarations provided that the relevant person lacks capacity in relation to the matter and it is in the best interests of that person to make the order or make the directions without delay.

[57]The manner in which a best interests decision is to be made by a decision maker, including the court, is addressed in section 4 MCA 2005. There is no issue on the facts of this case as to how these provisions are to be applied, but for completeness, a summary is important in order to set this court’s decision making process in context. By section 4(2) a court must consider all the relevant circumstances and by section 4(4), so far as is reasonably practicable, the court must permit and encourage the person concerned to participate in the decision affecting him. Given the severity of C’s condition it has not been reasonably practicable to directly involve him in the decision making process, but the Official Solicitor, his family and indeed all of the parties to these proceedings, have striven to put before the court options based upon what C might or would want and the reasons for the same. There has been a very genuine desire on everyone’s part to implement the letter and the spirit of the legislation and in particular section 4(6) which deals with C’s past and present wishes and feelings, beliefs and values and other factors which C would be likely to consider if he were able to do so.

[58]The court is not obliged to give effect to the decision which C would have arrived at if he had capacity to make the decision for himself and was acting reasonably (sometimes referred to as a ‘substituted judgement’) but rather it applies an objective test as to what is in his best interests taking into consideration the factors which C would be likely to have considered if he had capacity including what C would have decided if that can be deduced. By section 4(7) the court must take into account, if it is practicable and appropriate to consult them, the views of other persons. It may be of some significance in the future hearing of claims under the HRA 1998 whether the section 4 requirements were applied by other decision makers relating to C’s care before the involvement of this court. The process of best interests decision making described in the 2005 Act applies to all decision makers not just the court.

[59]In practical terms best practice both in proceedings before the Court of Protection and generally is to apply a structured approach to the decision to be made. The decision maker draws up a notional balance sheet of welfare factors describing the benefits and detriments of the available courses of action having encouraged the person concerned to participate in the process and having ascertained wishes and feelings, beliefs and values and other considerations particular to the person including consulting with relevant third parties. The role of the decision maker and that of an expert are distinct, albeit that the decision maker will want to pay appropriate regard to the opinion of experts in the context of all the circumstances (see, for example A County Council v. K, D and L

[2005] EWHC 144 (Fam)

[2005] 1 FLR 851

[60]Having gone through this structured process, the decision maker must form an objective value judgement giving effect to the statutory imperative: Re P

[2009] EWHC 163 (Ch)

[2010] Ch 33

at [39] per Lewison J. and Re MM (an adult), A Local Authority v. MM

[2007] EWHC 2003 (Fam)

, [2008] 3 FCR 788 at [34] to [35] per Munby J. Decision makers need not be risk averse and again this is a very important consideration as regards C. As Munby J. commented in Re MM at [120]:

“The emphasis must be on sensible risk appraisal not striving to avoid all risk, whatever the price, but instead seeking a proper balance and being willing to tolerate management of acceptable risks as the price appropriately to be paid in order to achieve some other good…”

[61]While regard must be had to the principle of acting in a less restrictive way, the best interests principle takes priority i.e. the option which is in the person’s best interests must be chosen which may not necessarily be the least restrictive option available.

[62]Guidance on the 2005 Act is set out in the Mental Capacity Act 2005 Code of Practice which is supplemented by the Mental Capacity Act 2005: Deprivation of Liberty Safeguards Code of Practice (26 August 2008). Paragraph 5.13 of the 2005Code of Practice sets out a checklist of factors that need to be taken into account in determining what is in a person’s best interests and paragraphs 2.6 and 4.61 of the DOLS Code of Practice describe deprivation of liberty, paragraph 4.61 inserting into that checklist additional factors that apply when considering best interests as respects deprivation of liberty as follows:

“ i) whether any harm could arise if the deprivation of liberty does not take place; ii) what that harm would be; iii) how likely that harm is to arise (i.e. the level of risk sufficient to justify a step as serious as depriving a person of liberty?) iv) what other care options there are which could avoid deprivation of liberty, and; v) if deprivation of liberty is currently unavoidable, what action could be taken to avoid it in the future.” i) whether any harm could arise if the deprivation of liberty does not take place; ii) what that harm would be; iii) how likely that harm is to arise (i.e. the level of risk sufficient to justify a step as serious as depriving a person of liberty?) iv) what other care options there are which could avoid deprivation of liberty, and; v) if deprivation of liberty is currently unavoidable, what action could be taken to avoid it in the future.”

[63]The local authority and the organisation submit that in accordance with paragraph 1(2) of schedule A1 to the MCA 2005 these safeguards only apply to a hospital or care home. The school is not a ‘hospital’ within the meaning of section 275 of the National Health Service Act 2006 nor is it a ‘care home’ within the meaning of section 3 of the Care Standards Act 2000 [CSA 2000] by reason of schedule A1 of the MCA 2005 at paragraphs 175 and 178 where the definitions are applied. In accordance with the meaning of a school as defined by section 4 EA 1996, the school is an independent special residential school operated by a non public sector organisation i.e. it is not part of the further education sector nor is it a specialist college service or part of the higher education sector. Having regard to the accommodation provided at the school, its status in law is a ‘children’s home’ within the meaning of sections 1(2), 1(6) and 3(3) CSA 2000. Such a home is inspected by Ofsted not the Care Quality Commission. As a consequence and by reason of sections 8(2) and 20 of same, the Health and Social Care Act 2008 [HSCA 2008] and the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010 do not apply to the school nor by section 21 HSCA 2008 does the Care Quality Commission Guidance.

[64]Although the deprivation of liberty safeguards set out in schedule A1 MCA 2005 do not apply to C because he is not detained in a hospital or care home (nor would they have applied in any event to C before he was 18 by reason of paragraph 13 of schedule A1), the application of good practice by the Court of Protection in any determination of best interests will of necessity have regard to the same material as that contained in the DOLS Code of Practice. That is because inter alia the DOLS Code of Practice is overtly informed by decisions of this court and the European Court of Human Rights as at the time of its publication (see the paragraphs under chapter 2 of the same). As the DOLS Code of Practice makes clear at paragraphs 10.11 and 10.12, the reason why the Code does not apply to circumstances other than hospitals and care homes is that save in respect of conditions to which the MHA 1983 applies, in all other circumstances an application must be made to the Court of Protection before the deprivation of liberty begins and in respect of C that should have been from his 16th birthday.

[65]The distinction between what a court will do when its jurisdiction is invoked and what others acting in relation to a person who lacks capacity have a duty to do is more than merely academic if breach of duty is alleged. Other decision makers, be they the local authority, the school or the organisation do not have a duty to act in accordance with the DOLS Code of Practice in relation to a decision to seclude or restrain C or which otherwise has the effect of depriving C of his liberty because the duty which is set out in section 42 MCA 2005 only applies the DOLS Code of Practice to those exercising functions under schedule A1. It hardly needs repetition that the absolution of one of more of the institutional parties from any finding of breach of duty in this regard hardly explains or mitigates the rather more significant illegality in not applying to the Court of Protection before the deprivation of liberty began.

[66]The Mental Health Act 1983 [MHA 1983] applies to the reception, care and treatment of mentally disordered persons. Section 1(2) of that Act defines mental disorder as “any disorder or disability of the mind”. Section 1(4) MHA 1983 defines learning disability in the sense that the term has been applied to C as a “state of arrested or incomplete development of the mind which includes significant impairment of intelligence and social functioning”. Learning disability is excluded from the definition of mental disorder for certain specific purposes in the Act as described in sections 1(2A) and 1(2B) “unless that disability is associated with abnormally aggressive or seriously irresponsible conduct on his part”. In the judgment of this court, it is patently the case that from time to time C’s disability falls within s 1(2) MHA 1983 and it is precisely because this is so obvious that the two psychiatrists who have given expert evidence to the court on the point have concluded that C needs assessment under the MHA 1983. Whether he would be better protected and treated by a regime constituted under the MCA 2005 or the MHA 1983 is a separate question from the nature and extent of his assessed disorders and his abnormally aggressive conduct.

[67]In any event, the exclusionary provisions relating to learning disability are concerned with the compulsory powers contained in the Act which have not been considered let alone exercised in respect of C. So far as the wording of the MHA 1983 is concerned, there appears to be nothing inconsistent in a person’s disability falling within both definitions and that is what C’s disability prima facie appears to do. Furthermore, such an interpretation would permit of the use of the community treatment and care provisions in the Act for someone like C. Had C been assessed for the purposes of the MHA 1983 and if his disability had fallen within the definition of mental disorder he would have been eligible for care and treatment in the community as a child patient who lacked competence. Such treatment within the meaning of the Act would have had to have been in accordance with the Code of Practice issued under the 1983 Act. It is a question worthy of enquiry why such a course was never contemplated or, if it was, was not undertaken. In the absence of a MHA 1983 assessment, this court has not been provided with the material to decide whether C is “within the scope of the Mental Health Act” nor whether C would object to being a mental health patient or to some or all of the treatment that may be recommended as defined in Case E of paragraph 2 of schedule 1A of the MCA 2005 so as to make him ineligible to be deprived of his liberty under the MCA 2005. No party has argued that in C’s case the court’s powers are as yet constrained by section 16A MCA 2005 i.e. ineligibility to be deprived of one’s liberty by reason of the engagement of the MHA 1983. The question can be of critical importance (see J v. The Foundation Trust & Ors

[2009] EWHC 2972 (Fam)

;

[2010] 3 WLR 840

at [45] and [46] per Charles J. and BB v. AM & Ors

[2010] EWHC 1916 (Fam)

at [25] per Baker J.). As yet that factual matrix is not developed.

[68]The Mental Health Act 1983 Code of Practice is issued by the Secretary of State under section 118 MHA 1983. By section 118 (2A) the Secretary of State is required to include in the same a statement of principles to inform decisions under the Act and by section 118(2B) those principles include:

“(c) minimising restrictions on liberty, (h) patient well being and safety and (i) public safety”

. By section 118(1) the MHA 1983 Code of Practice is: “(a) for the guidance of registered medical practitioners, approved clinicians, managers and staff of hospitals, independent hospitals and care homes and approved mental health professionals in relation to the admission of patients to hospitals and registered establishments under this Act and to guardianship and community patients under this Act; and (b) for the guidance of registered medical practitioners and members of other professions in relation to the medical treatment of patients suffering from mental disorder”.

[69]It is submitted by the local authority and the organisation that the MHA 1983 Code of Practice does not apply to any seclusion which occurs at the school. It is, however, conceded by the organisation which operates the school that as a matter of good practice the school’s measures and protections should be informed by the relevant principles of the Code. It is clearly the case that section 118(1)(a) does not apply to a children’s home but there is nothing in the scheme of the 1983 Act or its application to children in the community who are incapacitated within the meaning of the MCA 2005 which prevents section 118(1)(b) from applying. The plain language of the sub-section and any purposive construction of the same compels the court to conclude that it applies. The purpose of the MHA 1983 Code of Practice and its enabling section is to protect those who have mental disorders as defined in the 1983 Act by making provision for their reception, care and treatment whether or not the Act’s compulsory measures have been engaged. In my judgement, in the absence of any corresponding guidance that is applicable to a severely learning disabled child who is resident in a special school and whose condition prima facie falls within the definition of a mental disorder, the guidance applies.

[70]There is nothing inconsistent in determining that a young person’s condition falls within the definition of a mental disorder and that that person is entitled to the protection afforded by the Code while maintaining the additional protection of the Court of Protection in relation to his deprivation of liberty at least until that person is assessed as being within the scope of the 1983 Act when a decision has to be made as to which statutory code shall apply i.e. the 1983 Act is engaged. It would be a dereliction of the duty of this court (whether constituted as the High Court in its inherent jurisdiction or the Court of Protection) to fail to afford such residual protection to a vulnerable person at least until another statutory code is invoked. Accordingly, so far as C is concerned and having regard to the expert evidence which I describe about the severity of his disability and behaviours, as a matter of law and good practice, the Mental Health Act 1983 Code of Practice applies to his care and treatment at the school and in particular to his seclusion and restraint. It should be noted that despite the intense argument that the court has heard and read on this issue, the MHA 1983 Code of Practice (unlike other forms of statutory guidance) does not impose a duty on professionals, rather they are to have regard to it and explain and record the reasons why they have decided to depart from it.

[71]Whether the MHA 1983 Code of Practice should apply by analogy to children and young persons in schools which are children’s homes but whose learning disability does not fall within the definition of a mental disorder has not been argued before this court. At least so far as this school and this organisation are concerned it is conceded that in the absence of statutory control over seclusion and restraint in that context, the MHA 1983 Code of Practice should be applied as good practice. With respect, I agree. It would be unacceptable for C as an incapacitated child to be secluded or restrained without reference to best practice guidelines and that should apply to other children and young persons in the same or similar circumstances. A decision maker including a court has to make a decision for an incapacitated child in accordance with best interests and that of necessity includes a consideration of best practice not least so as to determine whether any less restrictive options are available. The expert evidence accepted by the court in this case is clear, the best practice is contained in the MHA 1983 Code of Practice. This court would have been constrained to consider it and apply it as best it could to its own determinations even if it had not applied to C as a matter of law. This conclusion no doubt has implications for other young people with serious learning disabilities who are in residential care.

[72]Although there are a multitude of provisions in the Code which are relevant to C, for example the physical restraint provisions in chapter 15, the following provisions are of particular application, in each case reading pupil for patient and school for hospital:

“15.43 Seclusion is the supervised confinement of a patient in a room, which may be locked. Its sole aim is to contain severely disturbed behaviour which is likely to cause harm to others. 15.44 Alternative terminology such as “therapeutic isolation”, “single-person wards” and “enforced segregation” should not be used to deprive patients of the safeguards established for the use of seclusion. All episodes which meet the definition in the previous paragraph must be treated as seclusion, regardless of the terminology used” 15.45 Seclusion should be used only as a last resort and for the shortest possible time. Seclusion should not be used as a punishment or a threat, or because of a shortage of staff. It should not form part of a treatment programme. Seclusion should never be used solely as a means of managing self-harming behaviour. Where the patient poses a risk of self-harm as well as harm to others, seclusion should be used only when the professionals involved are satisfied that the need to protect other people outweighs any increased risk to the patient’s health or safety and that any such risk can be properly managed. 15.46 Seclusion of an informal patient should be taken as an indication of the need to consider formal detention. 15.47 Hospital policies should include clear written guidelines on the use of seclusion. Guidelines should: • Ensure the safety and well being of the patient; • Ensure that the patient receives the care and support rendered necessary by their seclusion both during and after it has taken place; • Distinguish between seclusion and psychological behaviour therapy interventions (such as “time out”); • Specify a suitable environment that takes account of the patient’s dignity and physical wellbeing; • Set out the roles and responsibilities of staff; and • Set requirements for recording, monitoring and reviewing the use of seclusion and any follow-up action. […] • Ensure the safety and well being of the patient; • Ensure that the patient receives the care and support rendered necessary by their seclusion both during and after it has taken place; • Distinguish between seclusion and psychological behaviour therapy interventions (such as “time out”); • Specify a suitable environment that takes account of the patient’s dignity and physical wellbeing; • Set out the roles and responsibilities of staff; and • Set requirements for recording, monitoring and reviewing the use of seclusion and any follow-up action. […] 15.60 The room used for seclusion should • Provide privacy from other patients, but enable the staff to observe the patient at all times; • Be safe and secure and should not contain anything which could cause harm to the patient or others; • Be adequately furnished, heated, lit and ventilated; and • Be quiet but not soundproofed and should have some means of calling for attention (operation of which should be explained to the patient).”

[73]Paragraphs 15.48 to 15.59 of the Code set out a procedure for seclusion. This is also directly applicable to C but need not be set out in full. In essence there is a requirement for a local policy which sets out a procedure for starting and reviewing seclusion. A suitably qualified professional can make the decision but immediately informs others so that an initial multi-disciplinary review of the need for seclusion can occur as soon as is practicable after the seclusion begins. The review is to establish whether seclusion needs to continue, the individual care needs of the person while he is in seclusion and the steps that should be taken to bring the need for seclusion to an end as quickly as possible. There are review criteria: every 2 hours by the suitably qualified professionals and every 4 hours by a doctor or suitably qualified approved clinician. If the person is secluded for 8 hours consecutively or 12 hours over a period of 48 hours a more formal multi-disciplinary review is to be undertaken. There are also protections about the availability of suitably skilled professionals within sight and sound of the seclusion room, the observation and monitoring of the person and a documented record every 15 minutes. Paragraph 15.62 sets out basic record keeping requirements.

[74]Although the question has been raised as to whether the use of the blue room is a further deprivation of ‘residual’ liberty, it is agreed that, for the purposes of this Judgment and subject to the court determining whether and how the relevant guidance is to be applied, on the facts as they concern C the use of the blue room should be considered to be a seclusion rather than a further deprivation of ‘residual’ liberty.

Experts Consensus

[75]Mrs E the clinical psychologist who undertakes clinical supervision for staff at the school and who has had an overview of C’s problems for some time, outlined the problems which the other experts have been asked to advise upon. She said that: i) C’s progress has been limited at the school: autism sufferers can deteriorate as teenagers and C has not done as well as had been expected; ii) She is not personally aware of any child centred unit that would have been suitable for C: the extent of the seclusion he needs i.e. several hours a day is, however, available to adults in a hospital setting; iii) A multi disciplinary hospital setting is necessary as the next move for C because there will be an escalation in his behaviour as change will be difficult for him with an increased risk of injury to himself and others. He will need a setting which is very safe while changes are assessed to gauge their benefit. Both staff changes and noise are triggers for C’s harmful behaviours; iv) He is now very dependent on the blue room where he isolates himself or needs to be isolated because of his extreme behaviour; v) C’s extreme behaviour will necessitate intervention from a multi disciplinary team for many years. He will need behaviour support plans that are reactive to the needs which are evidenced by distressed and out of control behaviour i.e. when he is posing a risk to himself and others; vi) Outside of these proceedings C’s behaviour support plans were not reviewed formally i.e. regularly or on an annual basis although there was a support plan in 2007, one in December 2008 and one more recently with OT input. At no stage before these proceedings began was there a recommendation made that C be referred for assessment in or by a specialist unit; vii) C treats people as sensory objects and he will be denied that contact if he is inappropriately naked. He needs to learn the skill of recognising what are acceptable social boundaries, something autistic sufferers do not always understand but which C could be taught by consistent, repetitive routines; viii) The blue room was not intended to be used to provide for C’s nakedness and has not / should not have been used solely for that purpose rather than when C is also aggressive. The purpose of the room is immediate protection. It should not be used when not needed and the whole aim from the time C started at the school was to withdraw the use of the room and seclusion.

[76]To the extent set out above, Mrs E’s evidence is accepted in the context that there are significant disputes about what has in fact happened with respect to C’s care since 2007. She concedes that it is now necessary that the multi functional use of the blue room i.e. for seclusion and relaxation or sensory desensitisation be changed so that there are separate areas for different purposes and that in future a withdrawal area must never be used for seclusion. She advised, however, that that change would itself be very stressful for C. Dr Carpenter agreed that it would be impossible for C to adapt to a change in his use of the blue room in the short time remaining at the school, although that would be different if the professionals had a year in which to assess and achieve change.

[77]Dr Carpenter gave clear and cogent evidence about C’s needs in the future that was un-contradicted by anyone with similar skills and expertise. In so far as his evidence departed from the opinions of others, the court strongly preferred his evidence and advice not least because it was based upon research, skill and expertise which are at the leading edge of professional practice in the specialist fields which are relevant to C. The court ventures to suggest that advice of the nature Dr Carpenter provided to the court should have been available to the parties for C’s benefit from at least 2007. He advised that: i) The term ‘blue room’ has no meaning or purpose, except that by naming it by its colour rather than purpose, it avoids people having to think about what is its purpose and what regulations govern its use. In this case it disguises the fact that the room is being used for many purposes and to the extent that one of its purposes is a seclusion room that alternative terminology would be contrary to the MHA 1983 Code of Practice paragraph 15:44. The blue room is the management method used to deal with C’s aggression while also being used by C as a safe place: which purposes are arguably ethically incompatible. ii) Isolation rooms or seclusion rooms are not a recognised prescribed therapy for Autism Spectrum Disorders, Learning Disabilities, challenging behaviour or self injurious behaviour. They are a means of managing behaviour and should follow the first principle of managing behaviour, namely that they do not accentuate the undesired behaviour over time. iii) C is being secluded i.e. supervised in a confined space in accordance with the definition applied to seclusion in the MHA 1983 Code of Practice at paragraph 15:43 and the room has come to be used as a means of managing his behaviour. iv) An isolation room is a room which is not locked and which is not a confinement and is usually used for the purpose of isolating the person from an environment that is disturbing the person. The room insulates the person from the disturbance or over stimulation while carers remove the stimulus: hence the emphasis is on removal of the problem not placing the person in the room. In C’s case the emphasis appears to be on removing him rather than the causes of his distress and irritation e.g. noise in the accommodation and other sensory intolerances such as his clothing. v) No room such as the blue room should be used without a full intervention plan which is used to train and instruct carers in how to enable the person to stay calm and interacting outside of the room without having to use the isolation room or seclusion. In this case there needs to be a holistic plan which includes dealing with C’s sensory difficulties. The use of the room should be a small part of this, with a clear rationale for why and when it needs to be used for isolation and for seclusion and what are the boundaries and protections to be used in each event. vi) Any person working with C would need to have attended a course on how to safely manage him and to physically restrain and seclude him when that is necessary and permissible. In addition they should have extensive training in autism and how it applies in C’s case in order to equip them to interpret his behaviour and prevent the need for seclusion, how to use seclusion, the legal implications of its use and how to withdraw from it and end it. They should also have training in other interventions likely to prevent the need for seclusion. The training would include a day’s training with C. vii) C will react differently to new carers and all change has to be planned; viii) C needs a multi disciplinary setting for the foreseeable future albeit that in principle the hope is that C could move into the community within a year. Although there are now placements available in the country for 30 to 40 autistic children and young people with the severity of C’s health and social care needs, there have at times in the recent past been as few as 18. This is a very scarce and expensive resource. ix) There should be a genuine choice available for C as between MCA 2005 arrangements with appropriate deprivation of liberty safeguards and assessment and detention provided for by mental health legislation; x) The use of a seclusion room and a separate strategy for the use of a withdrawal room as a safe haven (which may include a private space such as C’s bedroom) where nakedness and some behaviours could be tolerated should be considered. Seclusion cannot just be abandoned, it is needed for his safety. xi) It would be sensible to start using alternative strategies which reduce reliance on the blue room by identifying and managing his different needs e.g. by encouraging C to withdraw into his own bedroom rather than the blue room and if it is established that the colour blue (or for that matter any colour) is of benefit to him, decorate that space accordingly. The use of alternative strategies and places where his needs can be satisfied should be used in preference to the blue room. Having said which, there are times when it is appropriate for C to use the blue room e.g. when he wishes to do so. xii) The blue room must never be used as a punishment. Placing him in the room to preserve his dignity is in effect punishing him for removing his clothes. There is no evidence of him feeling that his dignity is compromised, it is the carers who are embarrassed while at the same time he is distressed because of his sensitivity i.e. the irritation or pain he feels. A programme should be developed which understands his needs to be unclothed and develops strategies to help. xiii) There are a range of reasons why C wants to be naked which will include his own enjoyment, his control over a situation and his sensory problems including the reduction in his pain and irritation. Nakedness presents 2 aspects of respect for his privacy: the exercise of his autonomy i.e. providing facilities for him to do what he wants and the preservation of his dignity i.e. responding to his needs including his safety. xiv) Ideally the whole of his accommodation should be safe for him so that his nakedness, which does not yet have a sexual component, can be more easily controlled but with a re-consideration of why he cannot be naked in his own bedroom and that nakedness around staff can be possible provided the environment is a ‘protected best interests environment’. xv) To narrow the emphasis so that he is only learning that he should be dressed in communal areas assumes his behaviour is wilful and misses his sensory distress: the latter will require an environment where a degree of nakedness is tolerated while encouraging him to dress and tolerate clothes so as to interact with others. xvi) Within the boundaries of the unit, the aim should be to give him as much freedom as possible to move between rooms including the garden when he chooses: he has to learn that he has choices not just that staff are in control. xvii) Psychological functional analysis will not tackle C’s sensory needs: he will need and should have had a sensory assessment and formulation which is continuously developed and OT advice should include his clothing to find materials which are less painful or irritating.

[78]Ms Sharon Paley is an expert in the care of young people with learning disabilities with a particular emphasis on autism. It is now intended that the local authority and the school will use her to obtain advice about and a review mechanism for the continuing care of C until he moves. She joined Dr Carpenter in pointing out that the informal use of confined spaces to manage behaviour over a long period of time is unhelpful to achieving long term behavioural change in people with intellectual disability and that there is some evidence that such a strategy may cause trauma in people who have learning disabilities and autism. She also agreed with Dr Carpenter that the subjective belief that C’s nakedness is offensive, which permeates the school’s approach to C, needs re-consideration.

[79]Her opinion is that even in the circumstance that C is wishing to use the room, its continued use or the use of a similar environment for the same multiple purposes will present a significant risk to him leading to physical and psychological harm. She acknowledged, however, that in the interim the use of the room cannot be stopped but its use can be reduced or modified by the following strategies: i) Reduce the number of staff in C’s care and support team to between 10 and 15; ii) Undertake a baseline assessment of the use of the room; iii) Re-establish a protocol for the continuing use of the room; iv) Evaluate the positive interactions between C and his care and support team; v) Support C’s team in particular by specialist training; vi) Evaluate reporting and recording methods; vii) Regularly assess and review the use of the room and the behaviours of concern by reference to the aims, objectives and outcomes which are agreed for the use of the room; viii) Improve the approach to behavioural risk assessment; ix) Undertake joint work with Ms L relating to ‘sensory integrative dysfunction’; and x) Explore the reduction of interactions which cause significant stress to C.

[80]The new healthcare facility: All of the experts agreed that the facility identified by the PCT would be suitable for C. There are some works required and a team of dedicated carers will need to be employed. The facility has a closed garden area and its private area i.e. the flat would not be shared with anyone else. The facility benefits from a multi disciplinary team although some expertise, for example the specialist sensory OT advice from which this court has gained considerable benefit, would need to be commissioned. LM and LPM are cautiously optimistic although they remain committed to an eventual move into a purpose built facility in the community nearer to where LM lives. Although the new placement and its multi disciplinary team would be a bespoke service, something the experts agree is the only and best practice solution to the problems identified, it is potentially a more restrictive placement.

[81]Dr Lowe advises although an in patient assessment and treatment regime may be more restrictive in the short term, it would have the benefit of identifying possible improvements for C and disentangling them from enduring behaviours. This would help to plan for the least restrictive placement in the community. Dr Lowe and Mrs E recommend a hospital setting because of the intensive inter-disciplinary work required to effect as much improvement as quickly as possible for C. Dr Rippon and Mr Read agree and Dr Rippon adds that this will ensure the best possible chance of a long term placement in the community and the holistic assessment and stabilisation of his needs.

[82]It has subsequently been agreed that the new healthcare facility will have a dedicated team of 15 members of staff. This will permit a 3:1 staff ratio during the day and a 2:1 staff ratio at night. There will be no need to use bank or agency staff. All 15 members of staff will be trained to work with C i.e. to respond to his needs in a consistent and planned way. C’s new care plan will involve a comprehensive review of his needs and medication by a multi-disciplinary team which includes psychiatry, psychology, an advanced autism practitioner, nurses who specialise in managing aggression and separately behaviour therapies and speech and language therapy. The team will have access to an occupational therapist with experience in sensory integration. The suggested approach to his care is an adapted form of cognitive neuro rehabilitation which is extensively used at the healthcare facility which has been chosen. A detailed list of daytime activities has been drawn up for assessment and incorporation into C’s care plan.

[83]The accommodation will be on the ground floor with a private and secure garden. It will be dedicated for C’s use i.e. it will not be shared and any issues relating to nakedness and privacy can be accommodated within the accommodation so as not to restrict C’s activities. There will be a low stimulation quiet lounge and a wet room, an activities room and private space including a bedroom, a living room/dining room and a kitchen. The confusion of purposes will not be replicated in the new accommodation. Light, temperature and colour sensitivity will be carefully considered, as will the use of materials and fabrics. There will not be a blue room or a room dedicated for use as a seclusion room.

[84]Supported living options: Although the experts were wary of prescriptive timescales, no-one dissented from the evidence of Dr Lowe and Mr Wall that the assessment of C in the PCT identified facility may take 18 months to 2 years before any move to a supported living option in the community. There was a unanimous opinion that such an option was not in C’s best interests at the moment, not least because there would be an inadequate structure of staffing and clinical support for the intensive and comprehensive re-assessment of his needs that is required. On the positive side, Ms Paley and Ms L were of the opinion that a new environment with sensory integration therapy may produce a complete change and rapid progress albeit that time will still be required. There was again a unanimity of opinion that upon discharge from the new placement C will require a specialist provider to co-ordinate all of the services identified for his needs and that the model of care will need to be decided at that point not now.

[85]The use of the MCA 2005: Dr Carpenter would have liked to have seen a mental health assessment of C. Dr Lowe has consistently advocated the use of mental health legislation to control the assessment of C in circumstances where there will be no blue room and new staff. He anticipates the need for restraint, whether that be physical or chemical: a process which he anticipates might be cumbersome under the MCA 2005. Despite this prediction, however, he is content to agree with the balance of expert opinion that it will be the new team on the ground who must decide. They must have both assessment and treatment routes available. If experimental medications are to be considered, a second doctor’s opinion should in any event be canvassed.

[86]Dr Carpenter, Dr Lowe, Mr Wall and Mr Read agree that the least restrictive legislative framework should be used and that the decision will be for the new team. Their experience of the MCA 2005 is that it can be sufficiently flexible and expeditious but just as important, it will involve independent assessors like Mr Wall and Mr Read who will be able to advise on the non medical aspects of welfare.

[87]Although the clinical regime must be a matter for the new team to consider, there is guidance which ought to be borne in mind. In GJ v. The Foundation Trust and Ors supra Charles J. provided guidance on the interplay between the MCA 2005 and the MHA 1983. At paragraphs [45] and [46] he said:

“45. In my judgment, the deeming provisions alone, and together with that view on assessments, are strong pointers in favour of the conclusions that (a) the MHA 1983 is to have primacy when it applies, and (b) the medical practitioners referred to in ss 2 and 3 of the MHA 1983 cannot pick and choose between the statutory regimes as they think fit having regard to general considerations (e.g. the preservation or promotion of a therapeutic relationship with P) that they consider render one regime preferable to another. 46. This is because they point to the conclusion that when the MHA 1983 is being considered by those who could make an application, founded on the relevant recommendations, under s 2 or s 3 thereof they, like the decision maker under the MCA, should assume that (a) the treatment referred to in s 3(2)(c) MHA 1983 cannot be provided under the MCA, and (b) the assessments referred to in s 2 cannot be provided under the MCA in circumstances that amount to a deprivation of liberty.”

[88]Transition: It is agreed that C’s transition from the school to his new placement must be meticulously planned and that the plan must set out the agreed involvement of C’s family: LM and LPM. It will not be possible to introduce or assimilate C to the new placement because that will only confuse and distress him. Familiarisation should be provided for the new nursing and care staff who should visit C at the school before the transition occurs and during the planning process on more than one occasion so that C might recognise them. The journey between the school and the new placement could be facilitated by doing something C has become used to e.g. going on a private adapted bus with a stop on the way at a fast food outlet that he likes.

[89]The interim use of the blue room: It is agreed that to provide an alternative environment for C in substitution for or in addition to the blue room might risk greater harm and an increased need for the blue room itself if the use of the alternative was to be introduced and then stopped within a 6 month period. To develop an alternative now which had to be carried across to the new placement would impose an unnecessary constraint on the fundamental re-assessment to be undertaken in the new placement. Even minor changes to the use of the room and his other accommodation would involve taking one change at a time and training the staff in their consistent use of the strategy introduced.

[90]Of more importance is the consensus that there should be a senior member of staff who ensures in so far as it is practicable that the care plan is adhered to as respects the use of the blue room and that any non adherence is reported upon. It was agreed that Ms Paley’s specialist team are best placed to advise the existing carers and staff and to ensure that there is a consistent use of the blue room and reduction in any inappropriate use.

[91]Seclusion: As advised by Dr Carpenter there is a continuing need in the interim for seclusion in the blue room for C’s own safety and for the safety of others. As Mr Wall put it, “unless physical intervention is routinely used, C is likely to cause severe harm to himself and those caring for him”. Dr Carpenter advised that any attempt to change that need without a re-assessment risks compromising his safety in an unacceptable way by increasing the likelihood of aggressive outbursts in response to the changing environment. It is accepted that only those with specialist training and the skill and experience to identify what is a seclusion, what is a voluntary withdrawal and how to end a process of seclusion as quickly and safely as possible, can improve C’s position in the interim. Best practice would dictate that such a skilled intervention is backed by integrated clinical involvement. No matter how good the carers and supervisory staff may be, that is not a service available in the school. This court is clear that that is the essential problem which underscores these proceedings.

[92]Just one example of the need for integrated inter-disciplinary advice and practice in this regard is provided by Mr Wall in his best interest report of September 2010, with which the court agrees, where he says:

“It is difficult to determine to what extent the restrictions themselves are protecting C from harm or exacerbating the harm due to the lack of sensory profiling and assessment. An example of this would be the constant need for physical intervention, which is mainly due to environmental deficits and its impact on a person with an autism spectrum condition who may be hypersensitive to touch – note C’s removal of his clothes which could be an indicator of such hypersensitivity. At the same time, without physical intervention C would harm himself by banging his head on doorways, walls and the floor, or harm other pupils… C needs an environment that will accommodate his needs. If he was able to access open space at will, he may be less likely to need physical intervention resulting in severe distress. If transitions were reduced in the environment, effective lighting installed, proper ventilation, soft sound absorbent surfaces in a self contained place where C was not affected by, nor could affect, other service users, his need for physical intervention may reduce…”

[93]This aspect of the use of the blue room requires the continuing and consistent intervention of someone senior and the court accepts that Ms Paley and her team can provide that intervention in the interim.

[94]Nakedness: Now that the expert evidence has been heard, no expert disagrees with Dr Carpenter. It is agreed that C should be able to use the bathroom, the splash room, his own bedroom and the corridor to get to one of these rooms when he is not clothed. During the proceedings the use of the corridor as a route through the school was stopped and provided that staff are vigilant about use of the corridor by others, C’s privacy will be respected unless A has returned from his activities. C can therefore have ‘protected time’ for himself when he can be naked. Because C will not understand the choice he is sometimes allowed to make or any inconsistency in the places and times during which he can be naked there will need to be a very careful plan which sets out how the staff are to support nakedness without increasing C’s distress. For the longer term there are proprioceptive strategies which will help him because they will lead to physiological change which will compensate for the physiological element of his need to be naked.

[95]Because of the risks inherent in any significant change before C moves, the experts consensus was to use the blue room in the least restrictive way possible and to encourage C to use his bedroom when he is naked and until he needs to or can be persuaded to get dressed. The blue room is not a resource to be used simply because C is naked. As Dr Lowe said, “the inappropriate use of the blue room will already have caused whatever psychological damage it has and the question is how to minimise further damage”.

[96]At the end of the expert evidence, the court heard from some of those responsible for C’s care. On the question whether A could be moved so as to improve C’s circumstances, the head of children and young people service for the organisation, told the court that A’s care was provided under a contract with a different local authority which had provisions for its termination with notice. There is no room to move A or C elsewhere and there would be no reason to terminate the contract relating to A whose care is regarded as appropriate. In practical terms, therefore, it is not going to happen before C has to move at the end of the July whatever conclusion the court comes to. Furthermore, an unplanned move as already described would be more harmful than the interim status quo. That does not alter the fact that C’s present circumstance where he has to share accommodation with A is not in C’s best interests. The noise generated by A and the restrictions imposed upon C are not in C’s best interests and it is conceded by the school’s head of residential services that no consideration was given to the adverse influences of the one young person on the other when A was moved in to join C. The experts firmly agree that it is not in C’s best interests to share accommodation with A and the court without hesitation accepts their joint opinion.

[97]There was welcome confirmation from the senior team leader at the school that the corridor in C’s accommodation would no longer be used as a walkway by other residents seeking to access a cloakroom which was now going to be moved. That will have the immediate effect of respecting C’s privacy and reducing noise which is distressing to C. There was also confirmation that the existing staff levels were likely to be sufficient for the remainder of C’s time thereby minimising change and the number of carers and support staff working with C.

[98]The senior team leader’s oral evidence could not have been clearer in relation to the issue of nakedness i.e. Dr Carpenter and other witnesses are correct in their opinion that the staff on the ground are fearful of C being naked and have no positive strategies to deal with it other than to persuade him to dress as soon as possible. There appears to be no real understanding of the sensory or autonomy issues underlying this issue and the court is left with the overwhelming impression that C is conditioned to retreat into the blue room because that is the one location where he can remove his clothes without intervention. As the team leader confirmed in cross examination, even when C has not gone to the blue room to remove his clothes he now appears to adopt that practice as a ritual behaviour when he is in the room. Once there, although the room is not designed to be used to seclude him because he is naked, if he is naked his exit will be the subject of negotiation and even on the team leader’s own evidence he may as a consequence be prevented from leaving. It is worth re-iterating the expert evidence that the court accepts: seclusion because of nakedness alone is wholly unacceptable. Having heard that evidence, the organisation now accepts that C should be allowed to be naked in the splash room, the bathroom, his bedroom and the blue room.

[99]The school’s senior team leader also gave graphic evidence about a problem which is becoming increasingly evident. In accordance with the organisation’s own guidelines, seclusion or withdrawal of C into the blue room or otherwise should be authorised (even if after the event) by a nominated senior manager at the school. The team leader’s evidence was that this was impossible. There are too many withdrawals and seclusions. This has the effect that there is no oversight of what is happening from hour to hour of the average day. Informal and unmonitored seclusion operated in this way is totally unacceptable. It is plainly obvious from the written materials provided to the court that seclusion is neither understood nor even adequately recorded.

[100]The head of residential services gave evidence that in C’s accommodation, the kitchen, bathroom and his bedroom are accessible by an electronic key fob. Even when C had access to such a fob he demonstrated no ability to use it. Although the bedroom lock should have been disabled it was not clear from his evidence whether it had or had not been. It is probable that there will be times when only the blue room is available to C from the corridor of his accommodation unless his own bedroom door is open. It transpires that the locks can be deactivated and that this can and should be done save where access to a facility needs to be controlled e.g. to keep C and A apart or to prevent a dangerous circumstance e.g. access to knives in the kitchen or the use by either of them of an inherently dangerous area without supervision.

[101]The court cannot leave the evidence without returning to that which LM said about her son. Contrary to the negative assumptions which I find are sometimes displayed in the attitudes to LM of others, the court found her to be a desperately worried, anxious but essentially reliable historian. More to the point she is and should be a partial defender of her son’s interests. She is being accurate when she describes the extent to which her son’s liberty is deprived and when she comments that for approximately 50% of the time her son’s bedroom is locked and the court can therefore accept that as a fact; not least in the circumstance where management at the school do not know whether it is locked or not. The court likewise accepts her evidence, supported as it is by much of that which has been written, that the deterioration in her son’s condition occurred from the time when he has had to share accommodation with A and changes in some of the staff complement who care for him.

[102]LM had hoped that at the age of 18 her son would have his own space where he could freely access his own things and that he should be able to make some simple choices which both adults and children take for granted. In his case enjoying water and food and some very simple sensory pleasures: the splash room, the garden and outside play, a bouncy ball to sit on and laminated books. At the same time his privacy and activities should not be compromised so that he is unable to minimise pain, irritation and distress caused by sensory perceptions which he can only avoid by being naked.

[103]C’s recent deterioration has on any basis led to a significant increase in the deprivation of his liberty by his seclusion in the blue room, by confinement to his accommodation in the school so that his use of the garden and his enjoyment of outside activities and socialisation are curtailed and by the denial of choice in the manner in which his need to be naked is managed. That deprivation would be unlawful unless approved by the court as the only body with power to authorise a deprivation of his liberty.

[104]That a general deprivation of liberty in the school is necessary and proportionate and in C’s best interests has been extensively canvassed in the evidence which the court has heard and is now established, but within a defined compass. Likewise, the use of seclusion is necessary and proportionate and in his best interests but within an even narrower compass.

Seclusion at school – best practice

[105]Neither the local authority nor the organisation operating the school had any power to deprive C of his liberty. The deprivation which did occur was accordingly unlawful and contrary to

article 5 ECHR

. The court has decided that various statutory codes of guidance applied to C’s residence and seclusion at the school and also that it is appropriate for the court to set out what it expects i.e. the best practice which the court will apply itself when an application is made for decisions and/or declarations under the MCA 2005.

[106]The expert evidence which the court accepts included that from Dr Carpenter and others that best practice relating to the seclusion of young people in particular those who are incapacitated with severe and complex healthcare needs is to be found in the MHA 1983 Code of Practice. In my judgement, the concession by the organisation that as a matter of good practice the school’s measures and protections should be informed by the relevant principles of that code of practice is also the correct starting point for the court and any decision maker. In order to ascertain what is best practice in relation to seclusion, the court’s attention has been directed not just to the statutory guidelines but also to academic literature which examines the other uses to which seclusion might be put. That literature echoes the evidence of Dr Carpenter in that it provides no empirical support for its use as punishment (the withdrawal of positive experiences) or positive therapy (behaviour management by the use of seclusion). The literature provided to the court Paley, Sharon, “Seclusion and time out”, in Allen, David (Ed.) ‘Ethical Approaches to Physical Intervention volume II: changing the agenda’, Kidderminster, British Institute of Learning Disabilities, 2009. , Allen, David, (Ed.), “Behaviour change and behaviour management”, in ‘EthicalApproaches to Physical Intervention: responding to challenging behaviour in people with intellectual disabilities’, Kidderminster, British Institute of Learning Disabilities, 2003. , Lyon, C.M, Pimor, A, ‘Physical Interventions and the law; legal issues arising from the use of physical interventions in supporting children, young people and adults with learning disabilities and severe challenging behaviour’, Kidderminster, British Institute of Learning Disabilities, 2004. , Nelstrop, L, et al “World Views on Evidence Based Nursing” in ‘A systematic review of the safety and effectiveness of restraint and seclusion as interventions for the short term management of violence in adult psychiatric in-patient settings and emergency departments’, (submitted), 2006, 3(1): 8-18. provides advice which was agreed with by Dr Carpenter in evidence, namely that the purpose of seclusion is containment which is the prevention of harm to others until the crisis has passed. It should only be used in extreme cases i.e. it is an emergency procedure to be implemented when there is significant risk. Behaviour management strategies have one primary aim: to establish rapid and safe (temporary) control over high risk behaviours. They are not a constructive method of nor are they concerned with changing behaviour in the long term. Even in the short term seclusion may increase risk to the individual and there is insufficient evidence to support its use as a safe or effective short term behaviour management device.

[107]That material is coincident with the statutory and non statutory guidance to which I have referred. It also finds common purpose in the ‘Guidance on Restraint and Seclusion in Health and Personal Social Services’ which is a best practice report published by the Human Rights Working Group on Restraint and Seclusion in August 2005. I hope the court will be forgiven for including in this Judgment an extract from that report which having regard to the expert evidence it has heard the court finds to be persuasive evidence of good practice:

“1.12. Restraint and seclusion should be used only for controlling violent behaviour or to protect the service user or other persons. In exceptional circumstances, physical intervention may be necessary to give essential medical treatment. The decision to use either is extremely serious and restraint and seclusion should only be used as follows: • as intervention of last resort; • where other, less restrictive, strategies have been unsuccessful, although an emergency situation may now allow time to try those other strategies; • never for punishment; • in reaching the decision, consideration should also be given to the individual needs of each service user in deciding the best method of control or restraint to be employed. […] 1.14. Risk assessment is an essential element in the care and treatment of all patients and clients and should underpin the guidance which service providers make available to staff. It could be argued that it is one of the most fundamental interventions in the recognition, prevention and therapeutic management of violence and aggression. The use of other interventions such as observation, psychosocial interventions or restraint should be part of a management plan based on an assessment of risk. While it is acknowledged that the occurrence of aggressive or violent incidents are not always predictable, assessment of risk, followed by a properly developed management plan is essential to the prevention and management of aggression and violence. Being able to predict who is more likely to engage in a violent act may enable staff to reduce the risk. […] 2.10. The issue of seclusion is particularly complex. Seclusion is an emergency procedure, only to be resorted to when there is an immediate risk of significant physical harm. There is general agreement that it should not be considered as a form of treatment; the aim should be simply that of safe containment. Seclusion is usually unpleasant, and difficult for a service user to view other than as punishment, and not a therapeutic experience. 2.11. In considering seclusion there is a need to draw a distinction between: • seclusion where a service user is forced to spend time alone against his/her will; • time out which involves restricting the service user’s access to all positive reinforcements as part of a behavioural programme (this is explored in more detail in paragraph 2.13); and • withdrawal which involves removing the person from a situation which causes anxiety or distress, to a location where he/she can be continuously observed and supported until ready to resume activities. […] 2.17. The planned use of physical interventions involves the use of an agreed strategy which includes the possible use of physical intervention to intervene in a sequence of behaviours with the aim of avoiding or reducing injury/injuries. […] 2.19. Planned physical interventions are normally used as a last resort. Strategies designed to manage aggressive/violent behaviours should include: i. ecological strategies and the environment of the service user; ii. early intervention and de-escalation; 119. […] 5.5. Efforts to minimise the use of restraint or seclusion should be in place. This may require the adoption of primary and secondary preventative strategies. 5.6. Primary prevention is achieved by: • ensuring that the number of staff deployed and their level of competence corresponds to the needs of service users and the likelihood that physical interventions will be needed. Staff should not be placed in vulnerable positions; • helping service users to avoid situations which are known to provoke violent or aggressive behaviour, for example, settings where there are few options for individualised activities; • developing care plans, which are responsive to individual needs and include current information on risk assessment; • creating opportunities for service users to engage in meaningful activities which include opportunities for choice and a sense of achievement; • developing staff expertise in working with service users who present challenging behaviours; • talking to service users, their families and advocates about the way in which they prefer to be managed when they pose a significant risk to themselves or others. Some service users prefer withdrawal to a quiet area to an intervention which involves bodily contact. 5.7. Secondary prevention involves recognising the early stages of a behavioural sequence that is likely to develop into violence or aggression and employing ‘defusion’ techniques to avert any further escalation. Where there is clear documented evidence that particular sequences of behaviour rapidly escalate into serious violence, the use of interventions at an early stage in the sequence may, potentially, be justified if it is clear that: • primary prevention has not been effective, and • the risks associated with not acting are greater than the risks of using restraint or seclusion; and • other appropriate methods, which do not involve restraint or seclusion, have been tried without success. […] 5.16. There must be a written protocol, which includes: • a description of behaviour sequences and settings which may require the use of restraint or seclusion; • the results of any assessment which has determined any contra-indications for the use of physical interventions; • a risk assessment which balances the risk of using physical intervention against the risk of not using a physical intervention; • a record of the views of the service user or those with parental responsibility in the case of children, and family members in the case of adults not deemed competent to make informed choices; • a system of recording behaviours and the use of restrictive physical interventions using an incident book with numbered and dated pages; • a record of previous methods which have been tried without success; • a description of the specific physical intervention techniques which are sanctioned, and the dates on which they will be reviewed; • details of staff who are judged competent to use these methods with this person; • the ways in which this approach will be reviewed, the frequency of review meetings and members of the review team. 5.17.An up-to-date copy of this protocol must be included in the service user’s individual care plan.”

The judicial review claims

[108]The following failures are conceded or have not been the subject of dispute within these proceedings and have formed the basis for the partnership approach of the parties within the Court of Protection proceedings so that formal remedies imposed in the Administrative Court have not been necessary other than on an interim basis to achieve an agreed outcome. In respect of each claim the approved outcome is as follows: i) The failure to prepare an appropriate care plan setting out the arrangements for C’s care into adulthood including his transfer from the school to a suitable adult placement: the care plan and its detailed appendices including a new behaviour support plan, an intervention and prevention plan for the use of the blue room and a document advising upon the management of C’s nakedness is agreed; ii) The failure to complete an assessment and an appropriately detailed pathway plan in time for C’s 18th birthday and/or arrangements for the review of the same: the detailed pathway plan and review arrangements are agreed; iii) Disclosure of the behaviour support plan relating to the restraint of C by others: disclosed by consent; iv) Disclosure of all incidents of restraint and the duration of the same in the preceding 9 months: disclosed by consent; v) Disclosure of the qualifications and training of all staff involved in C’s care: disclosed by consent; vi) A declaration that the local authority had breached C’s article 3 and/or 5 and/or 8 ECHR rights: the local authority has made a limited concession as to the breach of C’s

article 5 ECHR

rights, the broader allegation of breach and the article 3 and 8 questions are adjourned for further hearing of the historic allegations together with the damages claims; vii) A mandatory order for the disclosure of a safeguarding investigation report relating to an allegation of abuse in January 2010: disclosed by consent; viii) A mandatory order requiring the local authority to provide C’s mother with details of C’s daily care: disclosed by consent; and ix) Damages for breach of C’s article 3, 5 and 8 ECHR rights: adjourned for further hearing.

Best Interests Formulations

[109]Future placement: It is agreed by all parties and by the experts that C’s next move must be to a dedicated and bespoke healthcare facility staffed by a multi-disciplinary team. The court approves this accord as being in C’s best interests. It is likely that he will need to be there for a year or more while he is assessed, not least for the purpose of mental health care and treatment. The accommodation and its staffing and support will be that described earlier in this Judgment. It will not have a ‘blue room’. The accommodation will be solely for C’s use and will have access to a private garden and splash room. Its use and C’s care and treatment will be in accordance with the MHA 1983 Code of Practice. Whether the outcome of the assessment as C’s mother and brother fondly hope is that he can sooner rather than later be provided for in the community is undecided. The evidence is marginally optimistic but no more. At the moment, there is no evidence which suggests that an immediate move to a community facility is feasible or in C’s interests.

[110]Interim placement: There is no evidence that any alternative interim placement exists for C which is better than the school. Until C is able to move by July of this year, the balance of evidence is that steps must be taken to improve his care and treatment regimes at the school so as to maintain his routine and minimise harmful disruption. The necessary improvements specifically relate to the implementation of the care plan and pathway plan now that they are agreed and approved by the court and in particular to implement best practice guidance and the evidence which this court has accepted relating to seclusion and nakedness

[111]Sharing accommodation with others: The overwhelming evidence is that it is not in C’s best interests for him to share accommodation with A. That said, it is accepted that A cannot be temporarily moved from the school. He would adversely react to the change in routine in a way that would likely cause him significant harm. To move C in that way as an interim solution and before his planned move to the new healthcare facility would be more harmful than leaving him at the school and in the company of A for the relatively limited time when A returns from his own activities each day. There is no better option available.

[112]The school has voluntarily ceased the practice of other children and young people using the corridor of C’s accommodation to access a cloakroom / changing room. It is common ground that this will improve C’s living conditions and is in his best interests. The organisation has also agreed to limit the staff who care for C to a core group who will receive further training and advice so as to minimise any inconsistency in care or unexpected changes in routine or professional relationships.

[113]Deprivation of liberty within the school: The court will examine the facts so as to determine the full nature and extent of the alleged deprivation of liberty that has occurred during the next hearing. Although it may not be a question which the court is asked to determine, the court is well aware that the question includes the circumstance before C was 16 and when he was subject to a CA 1989 regime but when no application for a secure accommodation order was made nor was any alternative authorisation applied for in the High Court. For the purpose of this Judgment it is sufficient to find that there is and has been for a period not yet determined a deprivation of liberty i.e. no lawful authority existed for him to be deprived of his liberty generally or for him to be secluded in the blue room. From 29 July 2008 when he was 16 any deprivation of liberty that there was could and should have been authorised by the Court of Protection. Any deprivation of his liberty would be a breach of his

article 5 ECHR

rights and is accordingly unlawful. Whether the facts of and surrounding that deprivation of liberty breached statutory guidance, best practice and/or articles 3 and 8 ECHR will be a matter for the next hearing.

[114]The most recent declarations as to the deprivation of C’s liberty were made by consent. Despite that, it is appropriate for the court to indicate why it has concluded that C’s general living arrangements amount to a deprivation of liberty which needs authorisation: i) If C attempts to leave the school he will be prevented or brought back and the risk of absconsion is regarded as serious and is provided for accordingly; ii) He is closely accompanied at all times of the waking day by at least 2 members of staff and there are supervisory waking staff at night; iii) C has no choice but to accept the complete control of the staff as to what he does and where he goes including whether he can use the garden, his bedroom or the splash room; iv) All of the doors to the outside of C’s corridor are locked and the majority of doors within his accommodation are capable of being locked and from time to time are locked in the circumstance that C is not able to unlock the doors; v) C’s only access to the community is when that is organised for him and when sufficient staff are available; vi) C is subject to repeated daily restraints and seclusions in the blue room; vii) C has no control over the use of his accommodation by others.

[115]The balance of evidence is clear that C needs a placement which now and for the foreseeable future will involve physical and systemic restrictions that amount to a deprivation of liberty and that this is justified by his extreme vulnerability, his complex needs including his severe learning disability and aggressive behaviours and his propensity to abscond. However, the balance of evidence in respect of any continuing deprivation of liberty is that it should involve less restriction upon C’s movements. It is in C’s best interests that as often as is practicable he should have access to the garden and the internal doors within his accommodation should not be locked save for access to A’s bedroom, the bathroom and those areas which would present him with danger e.g. access to some kitchen equipment or to slippery or sharp surfaces which would cause him harm i.e. for health and safety reasons.

[116]Nakedness: The balance of evidence in relation to nakedness is that policies and procedures should be less restrictive so that they acknowledge C’s sensory needs and choices. It is in C’s best interests for his dignity to be protected by him being clothed e.g. when visitors and residents other than staff and his mother and brother are present in the communal areas of his accommodation but having regard to C’s sensory need to be naked, restrictions on his choice to be so must be minimised. There is little evidence that C is concerned about A’s presence or that A is aware of or responds to C when or because he is naked. While the issue of privacy arises, a policy of encouragement for them to be in separate areas of the accommodation should always be preferred to any attempt to persuade C to get dressed which might lead to his seclusion by an escalation into aggressive behaviour. Seclusion in the blue room solely for reasons of nakedness is unacceptable as it represents nothing more than a sanction to achieve a purpose and the purpose is not the preservation of dignity or C’s safety which can usually be achieved in other ways but rather an amateur attempt at behaviour modification which having regard to the expert evidence will either be unsuccessful or harmful or both i.e. it is not a proportionate response to any risk nor the least restrictive option and is not in his best interests.

[117]Staff must be aware of and be trained in strategies to allow C to be naked which must include him being naked in their presence e.g. they already happily interact with him when he is in the splash room naked: his communication with them and vice versa and the activities he undertakes with them can and must be undertaken in a way which is safe but also responds to his needs. C must not be taken to the blue room simply because he is naked or because he declines to get dressed. He should be encouraged to be in areas of his own accommodation where nakedness is acceptable to others e.g. his bedroom or the splash room or even the corridor if no persons other than staff or close family are present. The strategies must include dealing with situations when he is naked but becomes unacceptably aggressive to others and where dealing with the aggressive crisis must take priority by preventative and if necessary seclusive measures or where there is an urgent need to intervene to prevent or limit his self harm.

[118]Seclusion and the Blue Room: Having considered the evidence relating to C, the evidence of best practice and the statutory guidance which applies, I have come to the conclusion that for the blue room to be lawful and in the best interests of C, its use must be restricted as follows: i) It must comply with chapter 15 and in particular paragraphs 15.43 to 15.62, inclusive and paragraph 15.67 of the MHA 1983 Code of Practice, and the section 7 LASSA 1970 guidance issued by the Secretary of State: Guidance for restrictive physical interventions (2002), Working together to safeguard children (2010), together with the additional guidance cited in the same. ii) In so far as is practicable, it should accord with best practice as exemplified by Safeguarding disabled children: practice guidance (2009) and ‘Guidance on Restraint and Seclusion in Health and Personal Social Services’ Human Rights Working Group on Restraint and Seclusion (August 2005). iii) When it is used for reasons of C’s aggressive or violent behaviour to others it should be used only so long as it is proportionate and necessary and in accordance with the above guidance iv) It must be the least restrictive option v) It must be in accordance with an intervention and prevention plan which is informed by a sensory advice and which has as an aim the reduction in the use of the room without causing harm to C i.e. it must be used in a way which safeguards his psychological and physical health vi) The intervention and prevention plan together with local guidance for use of the blue room must be written up in a protocol which is part of C’s care plan and upon which staff have been trained and instructed in a manner that is specific to C vii) C must at all times be visible and be monitored when in the blue room viii) It must not be used for punishment or as part of a therapeutic or behaviour management or modification programme ix) It must not be used solely for nakedness x) It must not be used solely for self injurious behaviour unless it is the only place to protect him while staff try to minimise the self-injurious behaviour xi) When seclusion is used to deal with high risk crisis and C starts to self injure, staff must intervene to try and prevent or minimise self injurious behaviour xii) It can be used where C chooses to use the same but only where that choice is matched by unrestricted movement i.e. freedom to leave xiii) It must only be used for the shortest interventions necessary to resolve the crisis xiv) The policies and training relating to its use, the recording and review of its use and relating to prevention and intervention strategies should be those advised by Ms Sharon Paley.

[119]The parties are now agreed that Ms Sharon Paley should help to construct the plan to deal with interim use of the blue room, C’s self-injurious behaviour, to identify strategies dealing with nakedness and how to cope with A and to provide expert advice in relation to C’s behaviour support, managing his transition, recording, training and staffing issues and, very importantly, helping to ensure that C’s seclusion accords with paragraphs 15.43 to 15.67 of the MHA Code of Practice. That accords with this court’s view that the evidence of Ms Paley as highlighted in this Judgment provides for the best interests of C.

[120]The court also approves of the agreement between the parties that in future: i) a senior member of the management staff at the school is to be informed that C is secluded ii) a senior member of the management staff is to come to C’s accommodation when he is very distressed or the seclusion has gone on for other than a short period of time iii) regular internal reviews of his seclusion should be undertaken iv) regular independent reviews should be undertaken by a multi disciplinary team which is to include, for example, Ms Sharon Paley.

[121]As a consequence of the findings, decisions and approvals made by the court detailed orders and declarations under the MCA 2005 have been made providing for C’s interim placement at the school but under very clearly defined procedures and constraints, in particular, concerning his seclusion. His liberty may be deprived in very limited circumstances and only with the authority of this court. The identity of the parties, including C, his family, the school, the organisation and the public and health sector bodies have been anonymised to protect C. That anonymisation is protected by an order of the court.

[122]It would not be right to leave this tragic case without noting that there are many very dedicated people, professionals and trained carers alike who are involved in the care of those with complex needs like C: they deserve the court’s and society’s sincere thanks. Despite this and despite the plethora of Government guidance and regulation, the court is left with a worrying impression that urban myth and so called ‘common sense’ rather than expert advice and multi-disciplinary working practices continues to be influential in some residential settings. Inquiries long ago established the need for specialist, qualified care and treatment for pupils and patients with special needs and likewise in the management of the establishments which provide that care and treatment: whether they are schools, children homes, care homes or hospitals. Until this court’s intervention, that multi-disciplinary environment with access to high quality inter-disciplinary advice did not exist for C. That was unacceptable. Judgment Ends. Afternote: at a subsequent hearing the court approved the new healthcare placement for C. Therafter, and without reference to the court or to any expert who knew anything of C’s circumstances, he was removed from the school by an authorisation made under section 2 MHA 1983 in circumstances which are not yet clear. As a consequence, proceedings continue.

C v A Local Authority [2011] EWHC 1539 (Admin)

Chapter 8: Care leavers aged 18-21

Appendix 5

Physical management

The context

The statutory schemes

Article 8

The local authority’s concessions and certain settled facts

The Court of Protection jurisdiction

Experts Consensus

Seclusion at school – best practice

The judicial review claims

Best Interests Formulations

Cited in 3 later judgments