I am surprised by how often with my job I find myself in a situation where everyone round the table has a different idea of what the court’s role is when discussing care planning. I am talking predominantly about cases where there is some kind of dispute about a care plan, for example, where there are restrictions that P does not necessarily agree with. As I am prone to do, I will explain this through a case scenario which is based on real life cases but with some details changed to preserve confidentiality. In fact, I’m going to talk about 2 scenarios on this topic. One in this post, and one in a subsequent post I’ve imaginatively titled “part 2”.
Let’s talk about Z. Z is a middle aged man with a diagnosis of autism. He needs a lot of support on a day to day basis, with his meals prepared for him, prompting about medication and personal care and a need for 1:1 support when in the community. He is currently in a care home, but he doesn’t want to be there, and other options are being explored. His care is jointly funded by the local authority and the ICB under s117 aftercare as he spent some time in hospital detained under s3 Mental Health Act 1983. The thing with Z is that he has actually been ready for a move on for at least a year. But the local authority and ICB were arguing about funding. I say this because it is a particular frustration that the authorities did have ample opportunity to decide on care arrangements without the involvement of the court or the Official Solicitor. But they didn’t.
So after being more than patient, Z’s Relevant Person’s Representative decided enough was enough and instructed solicitors to make a section 21A application. The Official Solicitor then became involved as the Relevant Person’s Representative was not able to take on the role of litigation friend for contractual reasons.
After another month or two of in-fighting, the local authority and ICB finally agreed that Z could be cared for safely in supported living. They agreed in principle funding for a supported living placement in their geographical area but said it could take some time to identify a placement with availability and that would be a good fit for Z. That isn’t unusual. What was unusual was they then collectively suggested that the section 21A proceedings needn’t continue and that they should be allowed to care plan this themselves in due course.
The Official Solicitor didn’t agree that, for a couple of reasons.
One reason was that Z had actually been in this position before but hadn’t actually moved so a “trust us, we got it” didn’t really mean a lot.
But even if he hadn’t, that still isn’t really how the court works. The court doesn’t give blanket approval. It approves specific placements and/or care arrangements. It makes the best interests decision. And no best interests decision had been made at this stage, only a public law decision. For more on the difference between these types of position see my earlier post on this topic.
Now there might be circumstances where the court would leave this matter to the public bodies. If, for example, reasonable efforts had been made to find a placement but none was currently available, the court might make a best interests decision for Z to stay in the care home at this time, in the absence of an alternative. In that situation, it might make some recordings to say that the public authorities are to regularly review this and consider a move if a place becomes available. But the authorities hadn’t really tried to look yet, so we definitely weren’t there.
So the court was going to want to see this through to a conclusion, either to a move or to an acceptance that a move isn’t possible.
Where this got particularly interesting was that when Z had been in this position before, he had become quite fixated on that placement. 12 months on he still asks if he is going to move to that particular placement. So after accepting that the court would be approving the placement, the local authority and the ICB identified a couple of options for Z. They set these out for the court in witness evidence. But this evidence also contained a plan that said these details should not be shared with Z until after the court has made a decision about which placement he is going to move to.
This created a problem for the Official Solicitor. Because one of the factors to be taken into account by the court in making a best interests decision is Z’s wishes and feelings. And it is the job of the Official Solicitor to obtain those wishes and feelings for the court. She usually does this by sending a solicitor or paralegal to go ask Z what his views are about the plan. Which means telling Z the plan.
For someone who finds change difficult and abstract concepts challenging to process, this would often include visits to proposed placements too, or meeting with staff. These steps can help someone form more informed views that can in turn help the court in making a best interests decision.
That doesn’t always happen, though. And for other individuals this is unhelpful, because the prospect of a move, without certainty as to if it’s going to occur is just going to cause distress without really adding to the quality of the evidence the court receives. The Official Solicitor, and those of us she instructs are not in the business of ignoring the concerns of people who know a person well. And if having those discussions isn’t in Z’s interests, then those discussions wouldn’t be had. But that reasoning does need to be set out following the best interests principles and looking at what is best for Z. Not what is easier for the professionals.
So a best interests assessment that says that the discussion shouldn’t be had because Z might get fixated didn’t really cut it. Because, well, so what? Asking about the placement for months might be annoying for the care home staff. Is it bothering Z though? If he is upset when he asks, or when those questions can’t be answered then that might be a reason not to give him details. Or if he is displaying behaviours that suggest distress, like aggression. This reasoning needs to be followed through, though. It’s a door that’s been pushed ajar, but not walked through.
And I should have known, given the approach taken by the authorities in the earlier stages of the proceedings, but I was surprised that when I questioned this, the response was “what do you mean? We’ve set the plan out in the evidence”. And I sat in the round table meeting feeling like I’d stepped into an alternative dimension. Or had suddenly started speaking Latin.
Five times I’ve asked for the reasoning to be clarified now.
I’ve asked in emails, over the phone and in meetings.
Five. Times.
I still do not know what the impact on Z’s wellbeing will be if I go and ask him what he thinks about each of the options on the table. So I can’t go and have that conversation. But I also can’t advise the Official Solicitor that it is in Z’s interests to proceed without taking detailed wishes and feelings either.
All progress for Z has, once again, stalled.
And that is more frustrating to me than either outcome. Because, above all, Z just wants to get out of the care home. There have been so many barriers to Z moving on that have been outside of anyone’s control. But this one could have been avoided with more understanding of the court process. Or more willingness to think things through, at least.
Hopefully I will eventually get an answer…
In case it isn’t obvious from the fact I still haven’t identified the authority I used to work for, or the organisation I now work for, the views expressed on this blog are my own opinion and not the opinion of that local authority or organisation.