A residential placement, commissioned by the LA and/or local clinical commissioning group is invariably in an ‘incapacitated’ person’s ‘best interests’.
The Court of Protection is not given a choice it is forced to rubber stamp the executive’s decision.
It doesn’t need to be proved a placement is in a particular individual’s best interests.
The Court of Protection does not explore a placements previous outcomes nor insist on a trial period.
Thomas Rawnsley’s ‘best interests’ were served by living in the newly built Kingdom House, 80 miles from his family were he died at 20, with no evidence of how his provider intended to cope with his state created trauma , autism and Downs Syndrome .
The court his family nor Thomas were given any other alternatives.
And the Court of Protection will not interfere with a care provider’s provision as shown in N v ACCG and Others [ 2017] UKSC 22
Where a mother’s simple requests to assist in her 23 year old disabled son’s personal care and have him visit his family at home were refused by his provider supported by the Clinical Commissioning Group, Official Solicitor and Local Authority .
It took 4 QCs and their barristers and solicitors and 2,029 pages, of which 1,289 were expert evidence, for the Supreme Court via Lady Hale to decide;
‘ It was a case in which the court did not have power to order the Clinical Care Group to fund what the parents wanted’.
So if the Supreme Court of the Land does not have the power who does ?
It would appear for profit monopoly care providers are above the law.
And, surely, the hundreds of thousands spent on this action, would have gone a long way to providing this extra funding, which was more than available from the £8,000 + per week paid for the washing, dressing, feeding, drugging and wheeling out of this young man by basic wage shift staff.
This judgment is a very disturbing precedent from the highest court in the land allowing ever more commercially aware providers to assert ‘cost implications’ as an excuse to avoid what is clearly in a person’s best interests .
At 8, MN had been taken into care and placed in a childrens home despite Bracewell J stating in the care proceedings;
‘‘The closeness of the family is striking. The physical care and attention to safety has been exemplary. All the family have been involved with every aspect of minute by minute care and supervision. There is no doubt that love and commitment have been shown to these children to the highest degree.”
We can only guess at the devastating effect on a vulnerable autistic child of being torn from his five siblings and parents love and all he knew, and placed in an institution with strangers.
We can only guess at the effect of his continued maximum profit‘care’ and unchecked enforced poly pharmacy medication.
We are told at 18 after 10 years of such ‘care’, on the LA applying to the Court of Protection MN now had
“severe learning and physical disabilities together with autism and an uncommon epileptic condition resulting in frequent seizures and risk of sudden death.
( a known side effect of long term neurological medication)
And a nurse had to be available at all times to administer emergency drugs to MN if needed
MN had poor muscle tone and uses a wheelchair.
( Autistics in institutions are often confined to wheelchairs as unable to walk safely due to the effects of medication, long term anti psychotics causing complete suppression of the neurological system and painful muscle spasms )
He was doubly incontinent.
(The possible side effect of Risperidol and faecal impaction? As with my daughter)
MN has the cognitive ability of a child aged less than 1 year.
( How could this be properly assessed, in view of his autism and medication, anti psychotics causing brain shrinkage and learning deterioration )
He has no speech ( there are many mute autistics, and trauma causes loss of speak, as does the inability to move due to medication ) but can express his feelings by facial expression, sounds and gestures.
MN needs help with feeding as he is vulnerable to choking; ( Medication causes the suppression of all muscle use )he requires 2:1 care with his personal care and accessing the community. Overall MN has to have his carers nearby at all times and during the night MN has one sleeping member of staff and one member of staff who stays awake to look after him.”
Since his 18th birthday MN had lived in a care home which we are told by an independent social worker provides, “a safe, settled and supportive environment”.
And parents have “for the time being” accepted that this is where he should stay, although it is clear that their ultimate aim is for him to come and live with them.
The parents wished for MN to come and visit them in their home six miles away .
An occupational therapist had assessed the home and concluded it could accommodate MN and his wheelchair for a short visit.
But trained carers would have to go with him, be allowed into the home to settle him down, and wait outside while he was there. One of the carers would have to be trained to administer emergency medication if required.
Only the care home manager and her deputy were willing to do this, “the rest of her staff fearing that the parents would not co-operate, would interfere with the care they provided for MN and would be aggressive and intimidating towards them”.
This, seems improbable, as these staff are effectively itinerant and powerless and do what they are told. That is if these never proved allegations were true.
Hence, the care home was unwilling to facilitate MN’s visits to the family home, which would require alternative carers to be trained and paid for.
MN’s mother also wished to be allowed to assist the care home staff with his intimate care when she was visiting him.
And an independent social worker thought that MN’s interaction with his mother in this way could form an important element in his quality of life, provided that she was able to work with the staff.
But the care home was unwilling to allow this, partly to fears as to the mother’s co-operation, but also because the parents had declined an offer of the necessary training in manual handling
The CCG’s position was that it was not in MN’s best interests for his mother to be involved in his personal care or for him to have visits to the family home.
The staff were unwilling to facilitate this and the CCG was not prepared to fund alternatives.
The Official Solicitor for MN supported the CCG’s position.
The parents disputed this position and the reasons for it.
In particular, they claimed that the care home’s fears about lack of co-operation were unwarranted and the mother was now prepared to undergo the necessary training
At 11.32 pm the day before the CA hearing , counsel for the local authority emailed the other parties to give notice of her intention to argue that the Court of Protection had “no jurisdiction” to decide the issues.
The matters the parents wanted were “not on the table” given that the CCG had said that it was not willing to provide.
The CA agreed, as did the Supreme Court, the later holding that the matters were not ‘jurisdictional’ but intended by the MCA.
So at 8 MN left his home and family forever .
His fate, the fate of many autistics, learning disabled and behaviourally challenged
And these numbers with the multi billion pound bounty on their heads can only increase.
And whilst COP will not order a mother helping with care, or home visits, it came to light via an investigation into the COP by the HL Select Committee in 2013, that autistic’s healthy teeth were being removed on COP order in secret to avoid self-harm.