TQ v VT
This case concerns an application to be appointed personal welfare made by VT's former professional care worker, TQ. It provides a salutary warning against poorly considered decision-making based on blanket policies.
VT was a severely disabled young man who suffered from Lennox-Gastaut syndrome, a severe form of epilepsy as well as severe global delay. He had learning disabilities and could not walk; some of his difficulties were considered likely to have arisen as a result of neonatal drug addiction.
At the time of the application, VT was 18. His mother had never been able to care for him and had died in 2015. He had never known his father. His aunt had looked after him from birth, but had died in 2013 when P was 12. He did not have relationships with any other family members, his siblings having variously been adopted or placed in special guardianship.
In 2014, the First Respondent Birmingham Children's Trust ('BCT') obtained a care order to have VT placed in a residential care home. Here he met TQ who was appointed his key worker and developed a particular attachment to him, manifested in, among other things, taking him on holiday to Disneyland Paris.
In March 2019, having turned 18, VT was moved by BCT to a new adult placement. TQ, wishing to maintain her relationship of care with him, and in light of his having effectively no other family support, made an application to be appointed is personal welfare deputy. Following this application, between April and June 2019, there was no contact between TQ and VT.
At a hearing in June 2019, the court made an interim order under s.48 MCA 2005 that VT lacked capacity to make decisions regarding contact and that it was in his best interests to have contact with TQ on notice. The court made concomitant orders against BCT and the CCG responsible for funding his care to provide statements setting out why TQ's deputyship was opposed including any evidence and reasoned best interests analysis for this and every other decision made on his behalf since his 18th birthday.
In light of what the judgment describes as 'poor quality' written evidence, oral evidence was required. Neither resisted the appointment of TQ as deputy per se but both insisted on serious restrictions to her appointment. BCT and the CCG both gave oral evidence, at the conclusion of which both withdrew their objections to the application.
BCT and the CCG's evidence was, in the submission of the OS which the court adopted in full, 'there was a need to bring the relationship between TQ and P to an end for no other reason than the pursuit of a "policy" that professional relationships are time bound.' (para 16). This 'rigid' thought process, guided entirely by the belief that it was inappropriate to blur the boundaries between a professional carer and friend resulted in what the court considered to be ill thought-through and indefensible decision making, by both the statutory bodies and the care home which rejected TQ's desire to visit as a non-relative as "a nonsense".
The Official Solicitor made an application for her costs which were awarded against both parties, HHJ Clayton observing:
- […] there was a pursuit of a flawed policy by both BCT and the management at Placement 1 and that the CCG, in failing to challenge the decisions taken acquiesced in them. The pursuit of this policy was a fundamental flaw. It infected the decision making of BCT, the CCG and Placement 1. The pursuit of the policy resulted in the requirements of section 4 of the MCA being ignored. The policy became the only factor in determining P's best interests on issues surrounding his ongoing relationship with TQ. To fail to consider the benefit to P of TQ spending time with him, helping to stimulate him, feed him, talk to him and to show her genuine care of him, when he had no other single person in his life who was willing to do that, outside of a professional relationship which had commenced in 2018 or 2019, was bewildering and shocking.'…
- The Mental Capacity Act Code of Practice sets out precisely what should be recorded by those professionals involved in the care of a person who lacks capacity when working out the best interests of that person for each relevant decision. Records should be made of how the decisions were reached, why the decisions have been taken, who participated and what particular factors were taken into account. The record should remain upon the person's file.
- The failure to comply with the MCA 2005 was not a technicality. It led to a wholesale failure of best interest decisions in respect of P as to his contact with TQ; a failure to include TQ, as a person important to P, in the decision making process; a lack of structure in any decision making as to whether TQ should be appointed as P's PWD; failure to make timely decisions as to repair of damage furniture in P's bedroom, to order a new hoist sling to replace the damaged one being used, to agree funding for his sleep system which he had been assessed to need; failure to apply for authorization of his deprivation of liberty under schedule A1 MCA 2005 prior to his move to Placement 1 so that he was unlawfully deprived of his liberty and without the protection of the Deprivation of Liberty Safeguards for a period of time.
- It was no surprise once the extent of the failings became clear that the BCT and CCG withdrew their opposition to TQ being made PWD without limit save for medical issues. The benefit to P of her being appointed PWD is obvious following the failings of the BCT and CCG as I have described. It is clear, too, that she has demonstrated an unwavering commitment to P and his right to have his voice heard. Without her application it is a voice that would continue to have been lost. I cannot praise her highly enough for her quiet, selfless and dignified determination. I have no hesitation in appointing her PWD.
- […] I cannot escape the inevitable conclusion that this application was only made by TQ as a result of P's rights being violated and her despair at the failings of the system, of which she knows a great deal, as a professional carer for P previously and a continued professional carer for other young people lacking capacity. I have considered Part 19(5) of the COP Rules and noted that I may depart from the general rule that there is usually no costs ordered in welfare decisions when taking account of certain factors. I have described in detail the failings before and during the proceedings. I have taken account of the change in position by the parties without the requirement for TQ to give evidence, with only their own evidence causing the BCT and the CCG to decide TQ's application should not be opposed. I have come to the conclusion that the costs of the OS should be born in full by the BCT and CCG in equal shares.
Unfortunately, the parties having agreed the legal framework, there is no further analysis of the law, save for a reference to Hayden J's decision in Mottram, Lawson and Hopton (Re: Appointment of Welfare Deputies) [2019] EWCOP 22 – but no further consideration on what that judgment might mean in terms of general application. It is significant that HHJ Clayton referred to the application as being unusual and having been made "as a result of [VT's] rights being violated and [TQ's] despair at the failings of the system" (para 28). VT was transferred to a new placement without a standard authorisation in place and with no formal capacity assessment on best interest decision-making. This case should not, we suggest, be viewed as setting any precedent for care workers generally taking on roles as personal welfare deputies for 'Ps' who have been in their care as minors.
What this judgment is useful for, however, is demonstrating the importance of maintaining focus on P's best interests throughout rather than being guided by blanket policies. It is also useful for demonstrating the importance of thorough and effective written evidence. Witness statements in the case were criticised for being served in bullet points, unsigned, and lacking in detail and analysis. HHJ Clayton observed that had the information required been set out appropriately in written evidence it was likely that those involved would have realised prior to the hearing that the case was unusual and that there was a real need for P to have a personal welfare deputy.
