The final curtain falls at the Hillingdon âDOLâ House
By Gildas The Monk
The case of the unlawful detention of Steven Neary by Hillingdon Council in 2010 is a topic upon which our learned editor Anna Raccoon has campaigned and blogged about before. The case has now reached another stage with the decision about the costs of the case handed down on 29th December 2011.
Hillingdon has rightly been ordered to pay a significant amount towards the costs of the case. This is unusual in a case before the Court of Protection, which is where this case was heard.
Before I explain what has happened about the costs and why, let me explain as best as I can what the case was about, and why it was tragic, significant and ultimately a victory for freedom and the rule of law. I propose to do this in chunks over the next few days, because there is a lot to get through.
The Mental Capacity Act 2005 was intended to recast the law which governed mental capacity, the role of the Court of Protection and the treatment of mentally incapacitated persons. One of the aims of the new system was to make sure that even though they lacked capacity to manage their affairs in the way the fully functioning person might have it, their wishes and desires were still to be an important factor which had to be taken on board in dealing with their care and decisions which affect their lives.
One such person was Steven Neary. Steven was about 20 at the time of the affair. He was and is a big, hefty sort of chap, generally affable, but he suffers from an extreme form of autism and learning difficulties. For Steven the world can be a confusing and frightening place. To quote from the judgment of Mr Justice Peter Jackson handed down in June 2011:
ââ¦He needs things to be predictable and becomes highly anxious if he is not carefully prepared for change of any kind. His life is structured around his home, with reassuring daily routines and rituals and a weekly diary of outings to swimming pools, the gym or a day centre.
3. Steven is usually fun to be with, with a good sense of humour and a good memory. However, he can become moody and anxious, particularly when faced with unexpected change, or made to do things that he dislikes. He can lash out, not in malice but rather in the manner of a small child. As a result, he needs to be closely supervised when he is out in the community to ensure his own safety and that of others. He needs one other adult present at all times, and two adults when he is out of the house. He needs things to be predictable and becomes highly anxious if he is not carefully prepared for change of any kind. His life is structured around his home, with reassuring daily routines and rituals and a weekly diary of outings to swimming pools, the gym or a day centre.â
All which I might say the same, albeit on a different part of the spectrum, could be said of me!
Readers with the disposition to look at it can find a link to full text of the substantive judgement here: http://www.bailii.org/ew/cases/EWHC/COP/2011/1377.html
In fact, it is unusual to be able to read a case like this which sets out the facts in such detail. Court of Protection hearings are normally confidential and, if reported at all, are reported only in terms which deal with the law and do not set out the facts to a great degree with the aim of protecting anonymity. However, in this case it was ultimately decided by the judge that the significance of the case merited the presence of the press in the form of a select group of newspapers, acting under very modest restrictions, and full publication of the final judgement.
The judgement is a comprehensive review of the facts and an analysis of a very complicated area of law, as one would expect from the vast and clinical mind of a High Court Judge of the Chancery Division (the senior and some would argue most rigorous Division of the High Court). It is a long judgement, some 202 paragraphs. I will try to summarise and explain it and the subsequent costs award over the coming week.
In a nutshell, in 2009 Steven was in the main being cared for by his devoted father Mark, a single parent divorcee. He did so, it has to be said, with a great deal of help (or at least finance) from Hillingdon Councilâs Adult Social Care Department. As the judge explained, probably no parents could cope on their own, and certainly not a single parent who is holding down a full time job, as Mark did. Looking at the judgement as a whole it seems that in fairness in this respect the Council provided good levels of funding to Mark Neary which allowed him to engage a team of support workers. These regular support workers knew and understood Steven very well and did a very good job, 5-6 days a week. The judge noted they got to know and understand Steven so they could âhead offâ problems.
Christmas is a difficult time for Steven (as for so many of us?) because his routine changes; the TV Schedule are moved about and the day care centre and gym activities are shut down and disrupted. This disturbs him. Up to and over Christmas 2009 there had been several incidents in which Steven had become very difficult for his father Mark to cope with. By the end of December Mark Neary was exhausted and also ill (I think he had âfluâ). It is common ground that it was agreed between Mark and social services that Steven would be placed in a residential support unit for a period of âa couple of weeksâ to allow Mark to recuperate.
What then happened was that Steven was ultimately detained by social services against his will and the will of his caring father for nearly a year, until the matter finally came before the Court of Protection in the doubtless rather rigorous and stern form of Mr Justice Mostyn on 23rd December 2010, This judge promptly ordered Stevenâs release from this detention.
In a subsequent case aspect of the case (the citation above) Mr Justice Peter Jackson ruled that the Hillingdon Council acted unlawfully by detaining Steven and depriving him of his liberty and his right to family life in breach of Articles 5 and 8 of the European Convention of Human Rights. The actual judgement is more detailed than that, but more of that later.
With my apologies to Mark and Steven if I do not do justice to the detail, this is what seems to have happenedâ¦.
When Steven was taken into the residential unit social services found him particularly âchallengingâ, especially about food issues. Steven liked food and it may be his father had been a bit too soft in allowing him treats in return for good behaviour. That is not a crime.
As Mr Justice Jackson was to note, Steven had been disturbed by the disruption of Christmas and no doubt this was compounded by further disruption to his routine by being placed in the residential unit. Reading between the lines, it seems that the social workers managing Stevenâs case formed the view pretty quickly that he was for whatever reason not fit or safe to be out in the community, or that his father was not the best person to look after him, or both. They did not really know or understand Stevenâs âlittle waysâ the way his regular day to day care team did.
It is also quite plain that a social worker in conjunction with the staff at the residential unit formed the view that not only did he want Steven to stay at the unit for a much longer stay so that his needs could be âassessedâ on 15th January, but that the social worker âfor some reasonâ (I quote from the judge) decided to try to keep this plan secret from Stevenâs father, Mark. It seems that Mark must have detected something âin the windâ and picked up on an intention to keep Steven in for potentially a much longer, or even an indefinite period. When Mark met with a social worker on 6th January 2010 and voiced his concerns about what he felt was going on he was met with the thoroughly nasty little suggestion that if Steven did not remain there then social services might âreviewâ the funding for his home support package, thus making it impossible for Steven ever to return home. Nice oneâ¦
To cut a long story short, social services also seemed to have formed the view that Mark Neary was a nuisance and a busy body who did not know what was best for his son. There was no real grasp of what was wrong with Steven, what his condition was and what he wanted â which was to go home. There seems to have been no proper assessment or understanding of Stevenâs condition at all.
Also reading the judgement as a whole, it is clear that the focus of Hillingdonâs social services unit was not Stevenâs needs and wishes as such, but rather having formed the view that they knew best rather to âmanage his [fatherâs] opposition.â I quote there from paragraph 54 of the judgement. In short, rather than respecting his wishes, or even getting to know Steven, an institutional default position on âwe know bestâ had kicked in. His father was a nuisance, questioning âthe systemâ. He had to be stopped.
The net result was as predictable as it was horrible. The longer Steven was kept at the unit the more agitated at his detention he became. He just wanted to go home. So the number of âincidentsâ of his bad behaviour grew. Of course, this justified the social servicesâ view that he had to be detained. Welcome to the Kafka-esque worldâ¦
All the while his father Mark was trying to get him back, complaining, writing, badgering. He must have felt very alone.
In early April 2010 Steven escaped from the residential unit. He got out and in an agitated state he snatched the glasses off a passer-by. The passer-by was not physically hurt, though the glasses were smashed.
Hillingdonâs response was to summarily invoke a process under the Mental Capacity Act 2005 known as the Deprivation of Liberty (âDoLâ) order or procedure. Under this process â properly carried out â Hillingdon could lawfully deprive Steven of his liberty against his will. It seems that they did not acknowledge that they had done so before this date. Indeed at the later trial they maintained that until then Mark Neary had âacquiescedâ in his detention. A rolling series of âDoLâ authorisations followed through the year as Mark Neary and supporters launched a campaign to get his son out of the hands of social services and back home. I hope to explain all of this in more detail in a later post.
In addition, Stevenâs external activities were curtailed pending ârisk assessmentsâ about the venues he went to. Once again, Stevenâs beloved routine was interfered with. With predictable resultsâ¦.
Throughout the summer Mark Neary campaigned and lobbied social services to have his son returned to his care. The matter was taken up in the local paper, The Uxbridge Gazette, and then picked up by Private Eye. A Facebook campaign took off. However, Hillingdon were pretty entrenched in its view that Steven should remain in residential care. They were not to be moved.
Once a DoL order is invoked there are strict procedures which have to be followed â or rather should be followed â to ensure that it is justified. These include psychiatric assessment and independent advocacy on behalf of the subject. But note this passage from the judgement:
â113. The case conference on 10 August consisted of a long discussion, the only outcome being a resolution that court proceedings would be instigated by Hillingdon. It was said that papers would be prepared within the week. There was a protest outside the Civic Centre during this meeting.
114. On 16 August, the psychologist reported, highlighting the lack of independent advocacy for Steven or Mr Neary, and commenting that Stevenâs autistic spectrum disorder had received minimal attention at the support unit. It is deplorable, and a clear sign of the adversarial approach being taken by Hillingdon, that this report was deliberately withheld from Mr Neary for at least six weeks.â
In short, the assessments that had taken place had not taken on board either Mark Nearyâs views, or perhaps even more importantly, Stevenâs. Just because a person has a lack of capacity does not mean they have no worthwhile point of view. As I have mentioned above, one of the aims of the 2005 Act was to stress that these have to be taken into account. Neither social services really got to grips with or understood Stevenâs condition. They were in institutional lock down mode. They were not caring; they were litigating.
It is necessary to bear in mind that Mark Neary did not have the resources to take legal proceedings. Hillingdon, however, did and indeed should have been doing so. In a case where there is controversy as the to use of DoL order the relevant local authority ought to be putting the matter before the Court of Protection as soon as humanly practicable. But to quote again from the judgement dealing with the position in the autumn of 2010:
â120. By this stage, Steven was becoming increasingly agitated at the support unit. His behaviour included kicking one of his carers. On 24 October he absconded through the front door, barefoot and in pyjamas, crying and asking to go back to his fatherâs house.
121. On 28 October, after Steven had been at the support unit for 10 months, Hillingdon finally issued proceedings in the Court of Protection. I asked the team manager why it had taken over two months since the decision on 10 August, and was told that Hillingdonâs legal advice was that it should get its own case ready before issuing the application. [My emphasis]
122. The application issued by Hillingdon was extraordinarily wide ranging. It asked for the following orders:
A declaration that Steven Neary lacks the mental capacity to decide where he should live and what contact he should have with his family.
A declaration that it is lawful for Hillingdon Council to place Steven Neary in appropriate residential accommodation identified by the council.
A declaration that it is in the best interests of Steven for contact between Steven and his parents Mr and Mrs Neary to be supervised and at the discretion of Hillingdon Council.
A declaration that it is lawful for Hillingdon Council to make arrangements for the supervision and restraint of Steven when he is in the community and this will include when Steven visits the homes of Mr or Mrs Neary.
- Permission to Hillingdon Council to commission experts to assess Steven regarding the identification of the triggers and assaulting others. (sic)
- A declaration that it is lawful for Hillingdon Council to make long-term welfare decisions regarding the future care and residence of Steven Neary.
- Orders regarding the disclosure of information and images relating to Steven and others particularly on social network sites.â
I do not think I need to express a view on how totalitarian that is.
The last part I take to be a reference to the Facebook campaign to get Steven free.
Pausing there, whilst this is largely a narrative rather than a polemic, that reference to a delay of two months is in the writerâs view significant. It rather suggests a mindset that would be appropriate in private commercial litigation, where one side with resources sets out to crush the other side, which does not. Rather like before a battle, the legal artillery is slowly trundled into place ready to unleash a bombardment which will hammer the other side into submission. If that was the intention it was about to spectacularly back fireâ¦
There is an general perception that the judiciary are all fuddy duddies who know nothing of real life and care not a jot for people like Steven. I can faithfully promise you that in the Chancery Division of the High Court of Justice â and the Court of Protection is really a sub species of that â that nothing is further from the truth. And from the same personal experience, that nothing will attract the rigorous and sometimes extremely stern attention of such a judge than three topics: care of infants when it crosses their desk, care of the elderly infirm and incapacitated, and the liberty of the subject.
I am taking a guess but I should imagine that at this stage Mark Neary must have been feeling battered and worn down by the legal and social services machine of Hillingdon, with all its resources.
As it happens, Hillingdon had seriously misjudged the matterâ¦.