Learning Disability Today
Supporting professionals working in learning disability and autism services

Woman with learning disabilities returned to family after court finds that she had been unlawfully removed by local council

autismA young woman with autism and severe learning disabilities has been returned to her family home after the Court of Protection found the local authority’s decision to keep her in residential care with restricted access to her family was a serious breach of her human rights.

In a judgement from the regional Court of Protection in Bristol his Honour Judge Nicholas R. Marston found there were a series of ‘systemic failures’ by Somerset County Council which meant the 19-year-old woman, known only as ‘P’ for legal reasons was wrongly kept away from her family for more than a year.

Law firm Irwin Mitchell, which represented P after being instructed by the Official Solicitor as her litigation friend, said the case demonstrates the importance of ensuring all staff working within local authorities are given sufficient guidance and training about the Mental Capacity Act (MCA).

P, who has autism spectrum disorder and almost no verbal communication skills, was prevented by social services from returning to her family home in Yeovil in May last year following bruises to her chest being reported.

Despite teachers witnessing P’s violent behaviour on a school trip, including hitting herself in her chest area, social services did not carry out thorough investigations, instead concluding that it was ‘highly likely that P received significant injury from someone or something other than herself’ and took the decision that she should not return home following a stay in respite care.

P was then kept in a respite facility in Yeovil for 6 months and sedated with medication despite her family’s pleas for her to be allowed home. The local authority then moved P to an assessment and treatment unit after it was accepted that the respite placement was unsuitable, where she remained against her family’s wishes until the case was heard by the Court of Protection.

During a 10-day court hearing in Bristol in May, the Judge found that a ‘competently conducted investigation by social services into the bruises would have swiftly concluded that there was not sufficient evidence to conclude P’s safety was at risk by returning her home.’

Not acting in accordance with MCA

In addition, the Court criticised the local authority for failing to act in accordance with the MCA, for failing to bring the matter to the Court of Protection for a hearing on the matter for 6 months and for failing to consult with the family and inform them that they could make an application.

P was kept in residential homes with restricted access to her family for nearly a year. Additionally, the first facility was found to be inadequate to meet her complex care needs and she was sedated with medication without consulting her parents, which was also unlawful.

Somerset County Council admitted that P had been deprived of her liberty and apologised to the family for its ‘procedurally inappropriate and unlawful’ actions.

Following the 10-day hearing, the Judge concluded that it was in P’s best interests that she was returned to the family home and that Somerset County Council had illustrated a failure to respect the human rights of P and her family.

He added that council workers “did not just disregard the process of the MCA, they did not know what the process was and no one higher up the structure seems to have advised them correctly about it”.

P finally returned home to her family in July and has settled well. Irwin Mitchell is now pursuing a claim for damages on her behalf.

A spokesman for Somerset County Council said: “We accept Judge Marston’s ruling and comments. We were completely motivated by serious concern for the young lady’s welfare. We have apologised to the family for the distress that our actions caused and are working closely with them to provide the right care and support for their daughter now and in the future. We have also taken urgent steps to ensure that all adult social care staff learn from this case and this situation never arises again.”

Devastating effect

Polly Sweeney, an expert public lawyer at Irwin Mitchell representing P, said: “This is sadly another example of local authorities believing that their safeguarding powers can override their duties under the Mental Capacity Act and the requirement that there is lawful authorisation in place for their actions, however well intended. It is deeply concerning that cases such as this are still being seen before the courts.

“Although we are pleased that the court found that it was in P’s best interests to return home, this case has had a devastating and profound impact upon this family that will continue to live with them for some time.

“The Council must now work to reassure the family and general public that it will act in accordance with the law when considering the best interests of incapacitated people within Somerset and that increased training has been given to those in social services on how to act in accordance with the MCA to prevent any other family from going through a similar ordeal.”

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