AA v GA and An NHS Clinical Commissioning Group

Summary

In this case, HHJ Pemberton considered a s.21A challenge to a standard authorisation of GA's deprivation of liberty at 'Placement A'. AA is GA's mother, and GA's care was provided by the CCG. GA was 22 years old, and had diagnoses of a severe learning disability, Autism Spectrum Disorder, ADHD, epilepsy and severe communication difficulties. The parties were in agreement that GA lacked capacity to make decisions as to her residence and care.

All parties appeared to be in agreement that it was in GA's best interests to move from Placement A, and the decision before the court was whether it would be in her best interests:

1. To move to an alternative specialist residential placement, 'Placement B'; or
2. To return to live with AA and GA's brother at the family home with no professional input from the CCG.

The standard authorisation was granted in January 2020 initially for a five-month period, but was extended by the court until the date of its judgment (approximately six months after the initial expiration date).

GA had lived in the family home with her mother and siblings until November 2019. The CCG had made an application in autumn 2019 to remove GA from the family home and accommodate her in a residential unit, arguing that "significant concerns had arisen over the past 12 months that GA's needs were not being met in the family home. In addition, some child protection concerns in respect of the younger siblings had arisen which had caused children's services to become involved with the family and for the children to be recorded as being at risk of significant harm due to physical outbursts from GA including physical assaults towards staff, her mother and siblings (I accept that GA did not intend to hurt anyone)'" (paragraph 11). The CCG had provided carers in the home, but one agency withdrew in July 2019; GA also attended day services during the week. The court approved the application to move to Placement A in December 2019, and it was planned that "a full functional, sensory and communication assessment was to be undertaken" (paragraph 15) while GA was there. This application was supported by GA's litigation friend.

In February 2020, concerns were being raised that GA was being overmedication at the placement; GA's family and IMCA were also raising other concerns about the placement.

The assessment completed in June 2021, "and the recommendation of the multidisciplinary team was that GA should move to a small residential home for adults with similar needs or to a supported living placement with support from staff with expertise in working with adults with learning disabilities, autism and complex needs" (paragraph 17). AA opposed this recommendation, and "maintained that her daughter should return to the family home and put forward an alternative care plan for the family to care for GA with some domiciliary support" (paragraph 18). However, "[t]he CCG confirmed that it did not propose to commission any domiciliary care or support in the event that GA was cared for by her family as they did not consider that the entire package of care met her assessed needs" (paragraph 19).

The court noted its position in considering these proceedings under s.21A Mental Capacity Act:

22. These are section 21A proceedings. The court's primary task is to determine whether or not GA meets the qualifying requirements in Schedule A1 to the Mental Capacity Act 2005: DP v London Borough of Hillingdon [2020] EWCOP 45. However, once an application is made pursuant to section 21A of the 2005 Act the court has broad powers to make declarations pursuant to section 15 as to whether P lacks capacity to make any decisions, and once such a declaration is made, the court has wide powers pursuant to sections 16 and 17 of the 2005 Act to make decisions on P's behalf concerning their personal welfare (CC v KK [2012] EWHC 2136 (COP); PH v A Local Authority [2011] EWHC (Fam)).

The court accepted '"that an indication of GA's wishes and feelings is that when GA is with her family, she has on occasions indicated wanting to leave the placement with them at the end of their visits. Her relationship with her family and the mutual love they have for each other is a significant factor which would support GA returning home" (paragraph 31). The court further accepted at paragraph 33 that "GA's family are able to provide her with love and commitment, with familiarity, with a cultural and religious lifestyle in accordance with her background. I have no doubt at all that if she were returned to the care of her mother with the support of MA and other family members that they would love her and care for her to the very best of their ability."  However, the court found at paragraph 31 that "there is no objective evidence to support the family's submission that separation from her family has had a significantly detrimental impact on GA's emotional well-being."

The court accepted at paragraph 32 that GA's family had raised 'legitimate concerns' "in respect of some of the errors in the care provided to GA, the most serious being in respect of the Risperidone overdose and the failure to properly supervise GA and a male resident which resulted in an inappropriate encounter. I accept that such mistakes may happen in the proposed placement at Placement B."  However, on balance, the court found that the evidence showed the family had struggled to meet GA's needs "on a 24-hour a day basis, seven days a week. It is apparent from the documents before me that they have struggled at times to fully meet GA's needs. The family's plan relies heavily on the availability of the Day Care Centre and weekend support which the CCG is not prepared to commission in the event that GA returned home. I note that whilst being cared for by her family, the family were provided with a considerable amount of additional support through the day care and domiciliary care services, which would no longer be available. Even with this level of support concerns were increasing in respect of the family's ability to properly manage GA's needs and behaviour" (paragraph 34). The court did not consider that the family had addressed the concerns which had been raised regarding GA's care in the family home, and found at paragraph 36 there was "a clear discrepancy between the professional assessments in terms of GA's needs and how best to meet these, (examples being in respect of stimulation and engagement) and the family's understanding of those needs."

The judgment also included some of the evidence presented on the nature and intensity of GA's needs, both during the daytime and at night:

41. […] GA requires a high level of support and supervision throughout the day to maintain her safety when engaging within day to day tasks. She has little danger awareness and within her current environment kitchen facilities are locked to ensure her safety. She will often throw items with little awareness of danger to self, others, or property. Throwing items does not appear to be in aggression but rather a play based, cause and effect seeking response for her. She requires support with her antiepileptic medication (potentially lifesaving) and with her complex sensory processing which in turn result in functional difficulties. She also needs support throughout the night to encourage a good sleep hygiene and monitor potential seizure activity. GA has Behavioural Dysphagia and this means that she is at risk of choking and aspiration by overfilling her mouth with food and drink, eating and drinking at a fast pace, vocalising with food and drink in her mouth and walking with food and drink in her mouth.

GA's MDT considered that GA's family would struggle to meet these needs, which

42. […] would lead to an increase in the frequency and intensity of problem behaviours. This would in turn result in increased risks to both herself and to family members, particularly children. It is very likely that her medication would be increased if her environmental and relational needs were not met appropriately at the family home. A specialist home is able to provide a highly structured environment and teams of experienced staff who can provide the level of intensive interaction she requires whereas this would be exhausting and unattainable for a family unit.'

The court accepted at paragraph 43 "that the level of care needed is such care that would only be available from a professional team (not an individual). As Dr B indicates, during her time at Placement A, GA's dosage of Risperidone has reduced significantly, with her behaviour managed through careful structure and planning rather than medication, and the plan is that this medication can be ceased entirely. In all probability, in order to manage GA's behaviour in the home, the family are likely to require Risperidone to be reintroduced or increased. This would not in my judgment be in GA's best interests."

The court was satisfied that a move to Placement B was in GA's best interests, and any interference with her Article 8 rights was necessary and proportionate; plans were to be developed to "enable[…] GA to maintain and enjoy a relationship with her family and the ability to celebrate important occasions" (paragraph 46). The court did not adjourn the matter for consideration of trial at home or at Placement B, but relisted the matter to review "following a period of settling in for GA" (paragraph 48).

Comment

The case presents a useful snapshot of the type of case often argued in the Court of Protection but relatively rarely reported: one in which the statutory bodies consider, in the absence of any allegations of abuse, neglect or bad faith, that a person's needs are beyond the ability of their family to meet. The judgment is also notable as a slight counterpoint to DP v Hillingdon: while all parties agreed that GA should not continue to live at Placement A (which, strictly, would have been the subject of the s.21A challenge), the court looked to CC v KK as authority that it had 'wide powers' to consider her broader welfare.

The case is also of note in relation to the CCG's position that it would provide no care for GA in the event that she were to live with her family. The judgment does not elaborate on this point fully, and it was noted that there had been some difficulty with the provision of care in the community, and at least one community care package had failed. Even in the absence of this important detail, we would observe two points in relation to this issue:

1. In our experience, the position that a person must choose between a residential placement or no package of community care is one regularly taken by health authorities providing care under NHS Continuing Healthcare, and very rarely taken by local authorities providing care under social care legislation; and
2. Generally, when explored vigorously with them, CCGs will not maintain the position that their Continuing Healthcare duties are met by the mere offer of residential care if the Court of Protection indicates that it considers that the person's interests will be best served by living at their home or with family members, and typically will revise this position to make some offer of a community care package. The court cannot, however, direct the CCG to provide such a package, and the Supreme Court in N v ACCG made very clear that the Court of Protection should be careful before dedicating time to considering questions what might in the person's best interests in the abstract.  The path for the parties – and the court – to tread can therefore be quite a narrow one.