Thursday, 3 March 2016

Guest Blog: Recent case law on moving people lacking capacity from home to other accommodation

This week, I am posting a guest blog. An AMHP has written an interesting analysis of recent case law (Re AG 2015) posing questions relating to the legality or otherwise of moving incapacitous adults.

I am a believer in an independent judiciary and the “rule of law” (ideally providing the laws are to do with creating a fair and just society and protecting individuals though in a democracy I suppose we cannot pick and choose).  I also am aware of (indeed witnessed as a newly qualified social worker prior to the NHS and Community Care Act) past poor practice / abuses where individuals with a variety of disabilities and frail / confused older people were placed in care on the signature of a doctor without the service user’s agreement (or even involvement) and often, or so it seemed,  for the benefit of others (family and professionals) when with a bit of thought and planning people could have been supported at home with home help (remember them?) and other services available at the time.  I would like to think we would not tolerate this now.

However, at our latest AMHP Forum I was made aware of yet another legal ruling (Re AG[2015] EWCOP 78) which will build in the need for further oversight of social work practice where it is stated that “Local Authorities must seek and obtain appropriate judicial authority before moving an incapacitous adult from their home into other accommodation”.

This particular case concerned a 30 year old woman (AG) with a moderate learning disability and autistic spectrum disorder.  There appears to have been a lot going on in this woman’s life from 2007 – 2011.  AG took her own tenancy in 2007 but lived between this and her mother’s home.  In 2011 both made allegations against each other (of physical abuse) and her mother reported tensions at home and difficulties caring for her daughter.  The safeguarding investigation was inconclusive but the plan following on from this was for AG to leave her mother’s home and live in her own home with 24 hour support – which commenced in August 2011.  This quickly broke down with yet more allegations that AG’s mother was physically and emotionally abusing her, her mother said the care staff were providing inadequate care and that the staff said they were being abused physically and verbally by both AG and her mother.  The care provider terminated the contract and AG moved on to a care home in November 2011.

The statement quoted in the second paragraph above is a “final observation” where Sir James Munby is “inclined to agree” with a submission by the barrister acting on behalf of the Official Solicitor (AG’s litigation friend).  He goes on to state that “Local authorities do not themselves have the power to do this (moving an incapacitous adult)”.   At our AMHP Forum it was suggested that this direction would not apply if there were immediate, serious risks which required urgent admission - to a care home for example.  Sir James does not qualify his observation by saying it would be acceptable to move someone without judicial authority if the need was urgent.  The DoLS Code of Practice appears to cover this matter in Chapter 2 where it acknowledges that taking someone to a place where they might be deprived is not covered by an authorisation but that unless the journey is long or the service user needs to be more than restrained (by which I take it to mean sedated) the provisions of the MCA cover this.  Otherwise a court order would be required.

However, I came across this matter in my practice as an AMHP some time ago (2 years at least) where I was asked to see a very confused older man who lived with his wife.  She wanted some respite but he was refusing to go.  The proposed placement was not far (not more than a mile as I recall).  I was asked to assess him with a view to admission to a mental health ward as a way of resolving the issue because under Sec.2 we would have the legal power to convey.  Otherwise I was told a court order would be required which might take time.  He did not need to be in hospital. The respite placement had been arranged and funding secured.  His sons persuaded him to go and may even have resorted to “therapeutic lying” to get him there.  I do not know if a DoLS authorisation was requested but he was home again in 2 weeks.

When I queried this and asked why we were not following the Code I was told that the Official Solicitor was of the view that anything more than the most gentle restraint should not be used.  It seems they took the opportunity of this case to raise this view with the Court of Protection.  Sir James does not – in this judgement at any rate – appear to consider this observation but simply agrees with it.

From my perspective as a practitioner it is potentially even more of an issue than Cheshire West.  Why is judicial authority required in cases where there is no objection from anyone (other than the possibly the service user – which is not to be ignored and I am not aware of people doing so), where the matter is clear cut, where the move may only be a couple of miles and take a few minutes, where a DoLS authorisation will be applied for when the person gets to the home (or may even have been done in advance) and there will be the safeguards from that?

I do understand the probable trauma of moving to and then living in an unfamiliar place for a very confused person.  However, I think we have moved on from the sort of decision making that took place in the early 1990s where moves were agreed quickly and with apparently less thought and assessment than there is now.  Funding will not be agreed – particularly in these times of restricted budgets – unless the move is necessary.

I do accept that there are sometimes situations where supporting someone at home may be more expensive than moving people into care and am aware of cases where, had substantial packages of care been agreed, the service user could have stayed at home.  Getting these packages for older people (65 yrs plus) has been very difficult for some time (not that any local authorities have “policies” about allowing a maximum of 4 visits a day to older people).  However, for straightforward cases why introduce another barrier (as I see it – safeguard as the courts perhaps see it)?

The AG case strikes me as being complex, with a family member objecting to aspects of AG’s care plan (though not the actual conveyance as far as I can see).  However, it also seems that when AG did move into care there was some urgency as otherwise (short of moving home to her mother) she would have been unsupported.  How quickly can judicial authorisation be arranged?  How is it done?   

What about when the out of hours service get a phone call at 3.00am on a Sunday morning from the local A & E because the husband and carer of a very confused and frail 80 year old woman has been admitted in an emergency and she is home alone, there are no family to care for her and we cannot get a care package in place for 48 hours?

Are social workers and other professionals who might be involved in such cases not to be trusted to act reasonably and responsibly at least in urgent situations and where there will have to be a DoLS authorisation (or at least assessment) in due course?

Our local advice is that we have the common law power of necessity if urgent.  If non-resisting (whether urgent or not) we still have the powers noted in the DoLS Code and under Sec.4 Mental Capacity Act if in the person’s best interest and we can evidence that we have complied with Sec.4 as best we can (if urgent).

I would love to hear the reflections of other social workers.  Am I just being over-sensitive?   I am not saying that there should not be judicial authorisation where there are contentious issues with a range of people objecting or where the service user has enough awareness to know what is happening and to benefit from the opportunity to have their voice heard (though I do think social workers listen to and take on board what people say) but where a service user is extremely confused and may well not even be aware of or remember any judicial intervention I find it hard to see the need to introduce yet another hurdle for us to jump over.  


  1. Thank you for this post. As an Admiral Nurse, I've always been deeply interested in the MCA and the powers this may / may not grant when it comes to older adults (with dementia, in my experience) and particularly with reference to respite care. From what is written here, I am still unclear as to what powers the local authority would have in the following scenario:

    Person with dementia (PWD) is severely affected as a result of their dementia symptoms.

    Package of care is in place e.g. 2 x 30 min visits daily, but support at these visits this is often declined

    Carer A requests and is granted respite (2-3 weeks, for which funding has been agreed and a place found) for a specific reason e.g. in order to recover after an operation

    PWD declines to go and they cannot be persuaded by family, friends or professionals. They also decline a more comprehensive package of care.

    In this scenario, my exclusive experience so far is that "the person said no, there's nothing we can do" is the end of the matter.

    As a caveat, please appreciate that I am a great advocate for personal choice (i.e. the right to say "no") even in the face of significant cognitive impairment. However, from the experience of others, is it true that a carer must suffer (with significant impact on their own wellbeing) in such a scenario as the one I describe above?

  2. You have to be careful using s4 MCA though - it can only be used to provide life sustaining treatment or do a "vital act" - necessary to prevent a serious deterioration.

    Whatever you do must also be the minimally restrictive option. I'm unconvinced that service failure - such as being able to provide a particular service (social, health etc) outside of office hours - is enough reason to act under s4. Views?

  3. Interesting blog. Thanks. It also struck that Munby's observation was almost an afterthought, albeit one that has been seized upon and more widely publicised by people who are concerned about this issue.

    What surprises me, though perhaps it shouldn't, is that this huge issue gets so little direct attention, though you will often encounter thoughtful professionals who are concerned but find it hard, as you have done, to find a hearing for those concerns. I would imagine that the issue is that in the main, this discussion is implicitly about older people with cognitive impairments. Whether it has been lawful to do so or not, in my experience as a social worker, they have historically been regarded as not having 'proper' mental health problems and therefore not having 'proper' rights that need to be respected in quite the same way as those of other service user groups. Worth remembering that Munby's statement was only able to be given because a case got to Court.

    I wonder how many older people are being taken from home to hospital (and thence to care homes) or directly from home to care home 'in their best interest' every day of the week? The Supreme Court judgment on deprivation of liberty reassuringly reminded us that people with disabilities have the same rights as other people that can't be offset against claims of necessity but my observation is that while we now have this very clear guidance, its implications are a long way from being universally accepted.

    As well as institutionalised discrimination, conscientious staff are faced with dilemmas like these and faced with the choice between unlawful action or impossible challenges about seeking legal authority with the assistance of public bodies that have made a strategic decision not to recognise this issue choose the former path. In response to the heartfelt post above, why should someone refusing to consider admission to a care home in circumstances that might avert a later breakdown be the end of the matter? My suggested answer is that this is largely because of choices made by professionals and managers. This issue has been dropped into the 'too hard' box far too often.

    1. In my team we've just emptied an entire EMI nursing home, 28 people, by way of MCA's and Best Interest decisions but with no judicial involvement at all. None.

  4. Cont:

    In terms of what to do about this, I suppose conscientious practitioners continuing to agitate locally even in the face of rebuffs and dismissal is important. I think though that legislative change would be desirable.

    I made a submission to the Law Commission consultation that mentioned this issue and made some suggestions. These were essentially that some limited powers to take and convey to care homes and hospitals be introduced into the successor scheme for DoLS. Part of my suggestion was that while staff might have the discretion and legal powers to effect a removal, the sequel would be that having used these powers largely at local instigation, there would then be an immediate referral to the Court of Protection. Though I know it is technically possible, I've never seen an emergency application to the Court having been made in such circumstances to seek the power to remove someone and have experience of LA legal departments refusing to participate and even saying that no such facility exists. The Court of Protection is jammed with work and anything relying on a quick response in a few days or hours would be unrealistic and flawed.

    Staff involved in such crises generally justify extra-legal action by pointing to the urgency of situations. I think allowing action to be taken promptly would be prudent. Making this subject to an authoritative and entirely predictable judicial review in which staff have to 'own' their decisions and be clear about their accountability might cool the ardour of the impatient and more importantly, might break the link between emergency admission and all thoughts of a future return home being ruled out from the start.

    Oversight by the Mental Health Review Tribunal is essentially is the mechanism that restrains professionals in using the Mental Health Act and the likely view of the Tribunal is probably the factor being held in mind when staff talk about that mysterious factor, as to whether someone is 'sectionable' or not.

    The Law Commission also suggested a new tribunal body, a Mental Capacity Tribunal. This would be expensive to set up, though cheap to operate in comparison to the higher Courts. I imagine this would not be a popular suggestion with the judges, whose insistence in spite of all evidence to the contrary, that the Court of Protection can be made fit to deal with the deluge of work after the SC judgment strains credibility. I think an accessible Tribunal would make referring to a higher authority in an emergency altogether more feasible and their accountability for decisions a much more significant consideration for professionals. This would be better for service users and their carers.

  5. Perhaps I'm missing something but trying to rely on the common law power of nescesity would require all other legal avenues to be exhausted which would include contacting the court of protection OOH. Also trying to rely on 4b (because you are depriving them of their liberty) could be used but still requires the CoP to be contacted so like it or not the CoP are going to get very busy, very quickly!