In Somerset v MK (Deprivation of Liberty: Best Interests Decisions: Conduct of a Local Authority)  EWCOP B25, HHJ Marston has ordered that P, a 19 year old woman who was being accommodated as a respite for her mother, who cared for her, should be returned to her family after the local authority had sought to have her retained in the placement. The judge said that there had been a ‘blatant disregard of the process of the MCA and a failure to respect the rights of both P and her family under the ECHR’.
P had severe learning disabilities and autism spectrum disorder. She lacked verbal capacity and communication was through gestures and pictures. She lived within her family and attended a specialist school.
In May 2013, she presented at school with extremely challenging behaviour and distress to such an extent that she was returned home. The next day, the mother noticed bruising on P’s chest – she informed the school and contacted her GP. Later that week, P’s mother went on a holiday abroad for two weeks and arranged for P to be in a respite placement. She informed the staff of the bruising; however, when further bruising was observed, P was examined by a consultant paediatrician. The paediatrician was not informed about P’s presentation at school (including that P had been observed hitting herself in the chest, she had taken staff to the ground, and been restrained) and concluded that the bruises were unlikely to be self-inflicted. As a result of the medical report it was decided that P would not be returned home.
Various capacity assessments made it clear that P did not have the capacity to make decisions about where she should live. Despite the dispute about what was in P’s best interests (the mother made it clear she wanted P home), the local authority did not make an application to the Court of Protection or consult with other family members about whether P could live with them in the short-term.
P remained in the respite placement until November. She became increasingly agitated and was prescribed an anti-psychotic with a sedative effect – the family were not consulted about medication. The judge found that this placement, which was intended for respite care and included up to 10 occupants all with learning difficulties, was clearly inappropriate for P and concluded this should have been “stunningly obvious” to social workers.