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.