|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales Family Court Decisions (other Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> Y (Autism -Care Proceedings- Deprivation of Liberty), Re  EWHC B63 (23 April 2018)
Cite as:  EWHC B63
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
B e f o r e :
|London Borough of Barking and Dagenham
Mr and Mrs X
|Y (by his guardian)
Ms Prolingheuer for Mr and Mrs X
Mr Hussein for Y by his Guardian
Hearing dates: 19-23 March and 10-11 April 2018
Crown Copyright ©
Her Honour Judge Purkiss sitting a Deputy High Court Judge:
- What is the relevant date for the purposes of s31;
- If I determine it is the date of this application, whether or not the LA has proved on the balance of probabilities that threshold criteria in relation to Y is established;
(a) that the child concerned is suffering, or is likely to suffer, significant harm; and
(b) that the harm, or likelihood of harm, is attributable to—
(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him;
(ii) or the child's being beyond parental control.
FINDINGS ON BACKGROUND AND CHRONOLOGY
a) Y was allowed to be unobserved for longer than was reasonable, enabling him to defecate on the floor;
b) Y had a listening device used by staff when he was asleep in his room. This was left in the office and the allocated 1:1 worker did not have it with him as he should have done;
c) Y's defecating on the floor and his subsequent distress was avoidable had there not been poor practice;
d) The response of staff members including saying "he's done a shit" was unreasonable because it caused Y distress in the tone used towards him and the requirement that he assist in cleaning up by making him dispose of the stool.
e) As a result of the above handling of the incident Y was unable to attend an opticians appointment late that same day
f) Proper recording procedures were not followed.
(i) Failing to identify that Island Lodge was inappropriate for a child with Y's disabilities before it advised the parents to agree to Y being placed there;
ii) Failing to identify it was inappropriate for a child with Y's difficulties after he was placed;
iii) Accepting assurances from Island Lodge (for example in relation to the May and August incident) without adequate further investigation;
iv) Failing to challenge other aspects of Y's care which had been poor (for example the failure to organise speech and language therapy);
v) Failing to realise that Island Lodge had not organised any education for Y for 2 years and that when it started providing some education the allocated teacher could not utilise PECS;
vi) Failing to realise that Y was unable to communicate with anyone at the unit other than through his behaviour because PECS was not utilised;
vii) Dismissing the parents' criticisms without sufficient enquiry
viii) Failing to challenge the level of restraint;
iv) Failing to draw together all of the information which was available which supported an analysis that contrary to the social worker's evidence, Y was in fact unhappy at Island Lodge and not being cared for well in that environment.
FINDINGS IN RELATION TO Y's CARE AT ISLAND LODGE
i) There have been "worryingly high" incidents of restraint of Y [E57;]
ii) Members of staff who had been involved in the May 2017 and August 2017 incidents were allowed to have continued contact with Y causing him distress and likely increasing his challenging behaviour. Dr Sinclair noted that one of the members of staff involved in the August incident had been involved in the two recorded restraints in February 2018.
iii) Some of the records indicate that de-escalation techniques were not applied before physical restraint was deployed.
iv) Record keeping in relation to restraint was "poor". Two incidents of restraint by staff were reported to Dr Sinclair in February 2018 but had not been included in the restraint log, nor had an incident which occurred during contact and at Ocean Lodge in the week of 19.2.18. This supports a finding that the level of restraint deployed in relation to Y has likely been higher than the records at Island Lodge indicate.
v) Dr M Khraishi, Associate Specialist/Acting Consultant Child & Adolescent Psychiatrist, at the Emotional Wellbeing and Mental Health Service reviewed Y on a 3-4 monthly basis after his placement at Island Lodge. He saw Y on 7.3.17 and recorded in a letter to his GP (F76) that he was pleased to have been informed by the Island Lodge staff accompanying Y to the appointment that Y's behaviour at Island Lodge was manageable and had not required any physical restraints since our last appointment in November 2016. He was said to be communicating more and his concentration had improved so he was able to complete various tasks at college and read up to 20 minutes. Dr Khraishi was provided with false information by staff at Island Lodge. Within this period there were physical restraints of Y and Y was unable to read for 20 minutes.
vi) Y has engaged in self-harming behaviour at Island Lodge but this had not been observed when Y was at home E58;
vii) Y's challenging behaviour has deteriorated in the period he has been accommodated at Island Lodge. Such behaviour is now part of his behavioural repertoire. The absence of effective communication between Y and his carers may have contributed to these escalating behaviours.
viii) Island Lodge is described in its 2014 Ofsted report as a unit for children with learning disabilities but not autism. At the time Dr Sinclair visited Island Lodge, Y was the only non-verbal child on site. I accept Dr Sinclair's evidence on this point.
ix) Staff did not have appropriate skills to support or develop Y's communication. PECS should have been utilised to enable Y to initiate communication with caregivers but was not deployed. Instead a similar tool was used as a visual timetable when workers wanted to communicate with him.
x) Y's keyworker thought he "could understand" and that he communicated through Makaton. Dr Sinclair saw no evidence of Y using Makaton.
xi) Y's keyworker was taken by surprise when asked by Dr Sinclair for a description of autism. He told her it was "a medical condition the young person has. It makes them act "abnormal" sorry for using that word. What I mean by abnormal is you can't expect them to think or feel the same as you do. They struggle with anxiety. I know it is a broad condition". When pressed by her about what else he knew he said "mainly anxiety and they need time to process information" but said he was unable to add anything else as he had not been prepared for the question.
xii) There has been no evaluation of Y's communication needs at Island Lodge. He was seen by a Speech and Language Therapist in December 2016 but nothing happened after that. A further referral was made in October and Speech and Language Therapy only commenced in February 2018.
xiii) Members of staff have not learned PECS from an accredited course. Instead as Dr Sinclair was told, they have watched a YouTube video. Dr Sinclair searched for a training video for PECS on YouTube but could not find one. She found a video of a review by the co-developer of PECS which explicitly cautioned that it was an overview and not a training seminar and she also found a few training videos which are not training courses.
xiv) Y did not have access to the PECS cards which were only brought out when staff wanted to prompt him to make choices. Consequently, Y could only respond to but not initiate communication exchange.
xv) Y has been denied the opportunity to have contact at home because it will be confusing for him but there is no evidence of this as it has not been tried;
xvi) Y received no education at Island Lodge from December 2015 – October 2017.
xvii) In October 2017 a class teacher at Ocean Lodge was engaged to teach Y two days per week but had no previous experience in teaching children with severe autism and severe learning disability.
xviii) Ocean Lodge is a school for children with emotional and behavioural difficulties. The Ofsted report was poor, one example being that teaching assistants at Ocean Lodge had a lack of understanding of how to meet pupils' academic needs. When Dr Sinclair visited she was alarmed to be informed that provision was undertaken by care staff who have no teaching qualifications.
xix) When Dr Sinclair visited, Y was being "educated" away from the main school in what she described as a "little hut in the garden" which was "tiny and made the risk of injury to others high if there were an aggressive outburst" .
xx) Y did not commence full-time education until December 2017 some two years after he had been placed. The education provided by Ocean Lodge was pitched at the wrong level and did not utilise visual support. The physical environment was inappropriate. Although the independent social worker had criticised the parents for their "unspecific plans for education", Dr Sinclair observes that he made no criticism of Island Lodge/the LA for their manifest failures in this regard.
xxi) During her visit, Dr Sinclair noticed a change in Y that was very suggestive of a seizure. The care staff thought that the change in Y was suggestive of "aggression". She recommended a re-referral to neurology.
xxii) Staff appeared to be hyper-vigilant for outbursts, making numerous predictions of imminent outbursts from Y which did not materialise and when Dr Sinclair did not detect any signs of likely outbursts. Dr Sinclair was concerned that this hyper-vigilance might influence how staff reacted to Y.
xxiii) Y needed care and education provided by staff who have expertise in severe learning disability and autism. Island Lodge and Ocean Lodge have no such expertise. The provision was and is completely inappropriate for Y.
Conclusion re Island Lodge
PLACEMENT of Y – Has the LA proved that it is in Y's welfare interests to be placed at M or should he be placed at home?
The ascertainable wishes and feelings of the Y in light of his age and understanding
Y's physical emotional and educational needs and Y's age, sex and any relevant characteristics of the children which the court
The likely effect on Y of any change in his circumstances
How capable each of Y's parents and any other person in relation to whom the court considers the question to be relevant is of meeting his needs and any harm Y has suffered or is likely to suffer
ORDER OR NO ORDER
DEPRIVATION OF LIBERTY
"Liberty means the state or condition of being free from external constraint. It is predominantly an objective state. It does not depend on one's disposition to exploit one's freedom. Nor is it diminished by one's lack of capacity."
i) The objective element of a person's confinement to a certain limited place for a not negligible length of time;
ii) A lack of valid subjective consent to the confinement in question
iii) Confinement imputable to the state.
37. The second question, therefore, is what is the essential character of a deprivation of liberty? It is common ground that three components can be derived from Storck, paras 74 and 89, confirmed in Stanev, paras 117 and 120, as follows:
i. the objective component of confinement in a particular restricted place for a not negligible length of time;
ii. the subjective component of lack of valid consent; and
iii. the attribution of responsibility to the state. Components (b) and (c) are not in issue here, but component (a) is.
48. So is there an acid test for the deprivation of liberty in these cases? … So what are the particular features of their "concrete situation" on which we need to focus?
49. The answer, as it seems to me, lies in those features which have consistently been regarded as "key" in the jurisprudence which started with HL v United Kingdom 40 EHRR 761: that the person concerned "was under continuous supervision and control and was not free to leave" (para 91).
51. In the case of P, the Court of Appeal should not have set aside the decision of the judge for the reasons they gave. Does it follow that the decision of the judge should be restored? In my view it does. In paragraph 46 of his judgment, he correctly directed himself as to the three components of a deprivation of liberty derived from Storck; he reminded himself that the distinction between a deprivation of and a restriction of liberty is one of degree or intensity rather than nature or substance; and he held that "a key factor is whether the person is, or is not, free to leave. This may be tested by determining whether those treating and managing the patient exercise complete and effective control of the person's care and movements" (para 46(5)). It is true that, in paragraph 48, he summarised the further guidance given by the Court of Appeal in P and Q, including the relevance of an absence of objection and the relative normality of the person's life, which in my view are not relevant factors. But when he considered the circumstances of P's life at the Z house, he remarked (para 58) upon the very great care taken by the local authority and the staff of Z House to ensure that P's life was as normal as possible, but continued (para 59):
"On the other hand, his life is completely under the control of members of staff at Z House. He cannot go anywhere or do anything without their support and assistance. More specifically, his occasionally aggressive behaviour, and his worrying habit of touching and eating his continence pads, require a range of measures, including at time physical restraint, and, when necessary, the intrusive procedure of inserting fingers into his mouth whilst he is being restrained."
In my view, in substance the judge was applying the right test, derived from HL v United Kingdom, and his conclusion that "looked at overall, P is being deprived of his liberty" (para 60) should be restored.
a) the result which the applicant sought to achieve could not be effected by the making of any other kind of order to which subsection (5) applies; and
b) there is reasonable cause to believe that if the court's inherent jurisdiction is not exercised with respect to the child he is likely to suffer significant harm.
a) made otherwise than in the exercise of the court's inherent jurisdiction; and
b) which the local authority is entitled to apply for (assuming, in the case of any application which may only be made with leave, that leave is granted).
Application to this case
Leave to invoked the Inherent Jurisdiction: are the criteria in s100(4) Children Act 1989 established?
Is what is proposed for Y accurately described as deprivation of liberty: Are the Storck criteria satisfied?
The objective component of confinement in a particular restricted place for a not negligible length of time;
- The staff will need to know Y's whereabouts at all times.
- Y requires full supervision both within M and when out in the local community by virtue of his lack of awareness of his own safety and the safety of others.
- Y demonstrates aggression and there may be a need to de-escalate any situation in which he is aroused to anger including by the use of time-limited proportionate restraint.
The subjective component of lack of valid consent;
The attribution of responsibility to the state.
Is it in Y's welfare interests to authorise any continuing deprivation of his liberty.