Deprivation of liberty and a few observations on NHS Continuing Healthcare packages

The decision in AA v GA and An NHS Clinical Commissioning Group concerns a section 21A challenge to a standard authorisation of GA’s deprivation of liberty at her existing placement – an issue that is often argued in the Court of Protection. The hearing took place in December 2020 but we noted this case recently in the very helpful 39 Essex Mental Capacity Act newsletter and thought it was worth sharing further with our CCG clients.

Summary

The case concerns GA, a 22 year old who suffers from severe learning disability, Autism Spectrum Disorder, ADHD, epilepsy, and severe communication difficulties. The parties were in agreement that GA lacked capacity to conduct proceedings and make decisions about her residence and care and support. AA is GA’s mother and GA’s care is funded by the CCG.

The parties agreed the issue for the court’s determination was whether it was in the GA’s best interests to :

  1. move to reside and receive a package of care and support at Placement B (a specialist residential placement) or
  2. for her to return to live with her mother, and brother, MA, at the family home with no professional input from the CCG

Background

Briefly, up until November 2019 GA was cared for in her family home, primarily by her mother. In September 2019, the CCG informed all parties of its proposal for GA to be placed in a residential unit. The CCG's case was that: “significant concerns had arisen over the past 12 months that GA's needs were not being met in the family home. In addition, some child protection concerns in respect of the younger siblings had arisen which had caused children's services to become involved with the family and for the children to be recorded as being at risk of significant harm due to physical outbursts from GA including physical assaults towards staff, her mother and siblings”.

At a hearing in December 2019, the court decided that it was in GA's best interests to move to a specialist residential facility. A full functional, sensory and communication assessment was to be undertaken. The period of assessment was supported by all parties at the time other than AA.

While GA was at the residential placement, the case returned to the court in February 2020 on an urgent basis as it became apparent that GA had been overmedicated on her prescribed Risperidone. Other concerns were raised by the family and by GA's IMCA. The court directed various investigations but that the period of assessment at the placement should continue.

At a hearing on 30 June 2020, the period of assessment had completed and the recommendation of the multidisciplinary team was that GA should move to a small residential home for adults with similar needs or to a supported living placement with support from staff with expertise in working with adults with learning disabilities, autism and complex needs.

AA maintained that GA should return to the family home and put forward an alternative care plan for the family to care for GA with some domiciliary support.

At a pre-trial review in November 2020 the CCG confirmed its position that its plan was for GA to transition to a small residential unit (Placement B). It is worth noting that at this point, the CCG confirmed that it did not propose to commission any domiciliary care or support in the event that GA was cared for by her family as they did not consider that the entire package of care met her assessed needs.

In reaching its final decision on GA’s placement, the court concluded that it was in her best interests to move to the CCG funded placement. The court recognised that this was an interference with Article 8 rights of GA and her family but was satisfied that such an interference was both necessary and proportionate.

CCGs, residential placements, community care packages and NHS CHC

The CCG in this case confirmed that it would not provide a care package in the event that GA went to live with her mother – the point was not elaborated on by the court but it is a position frequently adopted by CCGs providing care packages under the NHS Continuing Healthcare framework: that an individual must choose between a residential placement or no community care package.

These cases are always tricky. It is important to bear in mind the Supreme Court decision in N v ACCG 2017 so do get in touch if you require support on a Court of Protection matter or NHS CHC – we have a friendly and expert team.

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