Court today. Judicial review application in front of Mr Justice Robin Knowles. @JamieBurton29 @DrOliverLewis of @DoughtyStreet acted for AP (instructed by @BindmansLLP thru AP's litigation friend), Fenella Morris @kerbarnes of @39EssexChambers acted for @OxfordHealthNHS

1/60ish

An anonymity order means I can't report anything that cld lead to identification of AP, or his litigation friend. What I can tell you is that AP is a young autistic and learning disabled man and he has been detained under Section 3 of Mental Health Act since 30 July 2020.

2/

Mr Justice Robin Knowles (MJRK) was focused on the future, or as he put it 'where to from here'

A little background first though. AP has been detained within a seclusion area on a general mental health ward for almost 6mths, after his placement broke down in the community.

3/

AP is detained in a seclusion area usually used to conduct Mental Health Act assessments. The room would not normally be used for more than 24 hours. AP has not left the seclusion area at all, even for fresh air, since October 2020.

4/

AP is regularly subject to physical and chemical restraint, has put on significant weight due to lack of exercise, and his mental health has deteriorated.

Hon Justice Swift made an interim order preventing the Trust moving AP out of area to another ATU on 19 January.

5/

What follows comes from my notes of the hearing and the submissions that @BindmansLLP have helpfully shared with me.

I received no submissions or paperwork from the Trust.

6/

MJRK indicated he'd read paperwork to date and suggested to parties that 'honour would be reserved all round in terms of what happened to get to this point and what rights and wrongs are' by not getting into the detail.

It was 'where to from here' that most interested him.

7/

MJRK invited @JamieBurton29 'to start at the end' and tell him 'where he was aiming'.

JB 'Decisions under challenge as currently pleaded relate to the in principle decision to transfer the claimant out of county to another hospital where he'll continue to be detained...'

8/

JB explained that the proposed move would jeopardise discharge planning that had been in place for a long time.

AP has a care team locally, and a home which is subject to renovations which 'took a long time to acquire'.

9/

JB explained the second challenge relates to the suspension of AP's Section 17 leave.

S17 leave allows escorted visits in the grounds of the hospital and more importantly the community, and eventually back home.

AP's Section 17 leave has been suspended since Sept20

10/

JB raised concerns re 'prohibition of AP's parents visiting him in the current position in hospital... his parents haven't seen him since Christmas Day'

JB: Current obstacle is the claimant is in seclusion since 19 Jan following alleged escalation of incidents of violence

11/

JB: This has arisen since the claim and doesn't feature in the pleaded case but it is of very significant concern to the claimant's parents, not least because thus far no information has been given to them about the criteria that will be applied to bring seclusion to an end

12/

JB explained a further consequence of the Trust's approach was that AP's community carers have not been able to spend time with him, and build relationships, which in turn will prevent him being able to return to the community.

13/

JB explained the Trust had insisted the community carers undertake PEACE restraint training, before they could meet with AP in his current location.

This despite the community carer team being clear that they do not use restraint techniques.

14/

In previous 24hrs AP's team had learned the Trust believed he required a further 3-6mths inpatient hospital treatment before he wld be ready to be discharged

JB: 'Has come as significant shock to the claimant's parents'

They'd believed he would be discharged in February

15/

JB went on to explain this change in Trust's position impacted on his ability 'to persuade a court that the in principle decision is unlawful'

'However my Lord that is not to say the claimant might not have good reason to challenge the decision to transfer the claimant'

16/

JB: I don't seek an extension of interim relief but I do seek an adjournment of part of that claim, or a stay with a long stop attached to it with liberty to restore, so in the event the defendant does make a decision to transfer, that can be looked at at the time it's made

17/

JB: The day before yesterday the defendant indicated they would be prepared to engage in mediation... everyone wants to work to plan when AP can be relieved from seclusion, his parents can visit, in due course he can have S17 leave in the community

18/

JB invited a stay of proceedings for 12wks to enable parties to enter into mediation, subject to number of caveats, inc issues of disclosure

JB 'a number of parties involved in discharge here, we were keen they should participate in mediation in order it be productive'

19/

In a discussion that followed it became clear that the Trust had served 'summary grounds of resistance' last night. This had been expected by AP's team the following week.

Sounds like it contained a few surprises to say the least.

20/

JB: 'We're grateful for it but it meant we had to take stock. The extent to which the claimant's mother has been responsible for continued detention at the hospital has caused some consternation, along with the decision that the claimant need detained for a further 3-6mths'

21/

It appears documents received from the Trust yesterday included a suggestion AP's mother was somehow responsible for him spending longer in detention. Something @JamieBurton29 was keen to point out was 'absurd and offensive'

[No wonder MJRK didn't want to get into detail]

22/

A discussion then developed about timings of the 48hrs notice that AP would be moved, and whether that applied to the decision to move him, or to him being transferred.

MJRK ruled on this later, but at this point I should share some of what Ms Morris argued for the Trust.

23/

FM: We're extremely grateful to hear the application of interim relief is no longer pursued, we think that is sensible. We’re very happy to hear the claimant and his litigation friend are looking towards working together with my clients...

24/

FM: because I would suggest the key point in commonality in this case is that everyone wants the best for the claimant, for AP. Turning to how we might achieve that, Mr Burton has fairly accepted the offer of mediation offered by my clients a couple of days ago

25/

FM explained what medical mediation was and that the Medical Mediation Association [I wonder if she meant @medmediation] had ‘reassured those who instruct me that they have people with skills in this extremely tough situation’

26/

FM then discussed the caveats to mediation that AP’s side had suggested:

while certainly we’re sympathetic to the fact often decisions need to be multidisciplinary, what needs to be born in mind is my client can not compel anyone to participate in mediation…

27/

FM: so we can invite them but not compel them.

I want to bring that element of reality into it.

Everyone agrees where A is currently isn’t the right place for him, he ought not to be there longer than he ought to be.

28/

FM: Involving all these other bodies, with onerous responsibilities in the context of a pandemic, means we won’t be able to get on with mediation quickly. We say healing this relationship to do best for A is urgent...

29/

FM: ...and we suggest mediation embarked upon between defendant and claimant, with others invited, but there shouldn’t be a delay if they have other commitments because the core relationship is between the defendant and the claimant’

30/

FM then objected to the timescale of 12wk stay proposed ‘You’ll have seen from the defendant’s document that requests have been made to the highest level in the NHS for assistance with this case… no stone is unturned’

31/

Ms Morris for Oxford Health NHS Trust went on to describe a meeting held yesterday between clinical directors five Trusts:

‘all putting their heads together to try and find what’s best for A’

32/

FM: Given the level of commitment there is on side of NHS, we say one can’t take this rather languorous timescale being proposed by Mr Burton

[Forgive me offering a personal reflection but the timescale for assessment and treatment of AP seems pretty languorous]

33/

FM continued ‘a stay should be of shorter duration and would give important encouragement to the claimant’s family to engage earnestly with that mediation and not to stand on ceremony’

FM then said the defendant would make disclosure without the need for a court order.

34/

FM urged the court continue with case and reject the stay:

‘we would invite the court to let these proceedings proceed as they ordinarily would in court, although we put on summary grounds, they’d then be a period to consider grounds and decide whether to grant permission’

35/

Mr Justice Robin Knowles acknowledged he’d not appreciated Ms Morris’s junior was on the call and apologised for not introducing her at the start.

MJRK: I don’t at the moment think I need to ask you anything more.

36/

MJRK then checked whether Ms Morris had anything more to say, her junior checked whatsapp and Ms M confirmed they didn’t.

MJRK: Mr Burton as concisely as you can, any stand out observations in response?

37/

JB: the suggestion that the judicial review should be allowed to take its natural course, is strongly disputed, the offer to engage in mediation is made on the premise that the claimants' rights are reserved

38/

JB nothing in weekly meetings re requirement further 3-6 mths treatment:

‘from the defendant’s claims we’ve seen no disclosure in support of that, no evidence, it’s just an assertion, I’m doing my best to respond appropriately to that while maintain my client’s rights’

39/

JB explains that is why they recommended a stay.

Mr Burton was clear they did not wish to proceed along the lines Ms Morris suggested and if that were the path chosen their offer to enter mediation would be in doubt.

40/

JB explained why there was a need for other parties to be involved with mediation [to ensure property repairs happened, to know what was happening in relation to community carers]

41/

JB then turned to disclosure:

‘we’re not given any timeline but obviously we’d need time to consider it before any mediation take place otherwise wouldn’t be able to mediate effectively’

‘A moment of realism, the claimant has been on this ward since 20 July last year...

42/

JB: AP’s parents have been taking every step to try and ensure he can be discharged into the community…. They have no interest in keeping him there… they have to balance the risk of him being taken out of pan and into fire… Trying to balance discharge with being prepared’

43/

MJRK outlined his framework for progress:

‘The proposal for mediation, for independent facilitated discussion, of a matter that has so many dimensions and complexities, and also involves an emotional aspect, is one that I welcome...

44/

MJRK: ...and intend that the court should fully support as an opportunity at this point.

It will be important that the parties can within days take the first step in that direction, which is to agree on the identity of the mediator

45/

MJRK suggested that parties may like to leave the choice of mediator to one or other professional association:

‘parties are completely encouraged to consider leaving the choice to the association if that commends itself as an independent way of making an early decision’

46/

MJRK: Mediation process in a case like this is going to almost inevitably have a course that will require different things at different points. I would wish as the court, to commend to the parties the very real role that a mediator, him or herself can be expected to take..

47/

MJRK: …to guide the questions of what participation other than the direct parties, what participation is needed at what point, and for that matter what information or disclosure is needed and at what point.

48/

MJRK: I would expect parties to a mediation to be very much guided by the mediator in that regard.

MJRK was supportive of the Trust’s offer of disclosure and perhaps keen not to have to be further involved in that matter himself:

49/

MJRK: ‘It is important that its forthcoming in a timely way but I would expect parties to be able to agree what that means in days, if there’s any argument about it I would expect the mediator to be able to speak to the parties to resolve it’

50/

MJRK was not keen on the suggestion that proceedings continue:

I’m firmly against that course for the time being, it isn’t a good use of court time for this matter to proceed through stages at court when the mediation is trying to resolve it...

51/

MJRK: ...and indeed as some of the points that Mr Burton B has understandably raised indicate.

MJRK was not persuaded a 12wk stay was required:

‘I propose that the stay be one that is not for a finite period, its subject to liberty to apply...

52/

MJRK: ...allows reference back to the court where that is suitable, but will have a point at which the court if it hasn’t had contact in the meantime does receive contact, so the court itself can bring the stay to an end or make any other order it sees fit.

53/

MJRK: At the moment that date, which is not the date a stay expires but is a long stop date… 22 March, which is about 8wks from now

MJRK was clear that the question of transfer would need to be looked at in mediation.

54/

MJRK: I understand the need for a safeguard, I commend the defendant for continuing to offer, without order, a 48hr notice period, but I would like to suggest that there’s a little more precision over that.

55/

MJRK: Stepping back from the tension thus far, and the exchanges of correspondence, I can’t on my part see why the period of advance notice of a decision being made and before it being implemented should be any less than 7 days.

56/

MJRK: And I say that targeting not the prospect of decision, but the prospect of transfer on the back of a decision.

I admit here to having in mind the fact it is completely undesirable that if 48hrs notice is given the parties charge back in front of court...

57/

MJRK: without actually enough time for full preparation, rather than that being done on a more dignified path, and remembering also one doesn’t want to encourage a process that leaves the mediator out of being able to resolve difficulty

58/

MJRK: In the event that the mediation is not successful, and the matter has to be pressed forward before the court, there will be no doubt a number of revisions to be made to the documentation, not least but that’s not the priority and that can be turned to in due course.

59/

MJRK: The reason I really commend the parties for having, despite the way in which this matter slipped into an adversarial chapter, having recognised that mediation has a lot to offer, is because this is one of those matters which in the end a court process of decision...

60/

MJRK: ...after a battle between parties that are concerned about the same thing, is really a last resort, and does not offer the flexibility and the ability to embrace solutions of wide compass that mediation allows

61/

We then adjourned for 15 minutes for counsel to speak with their clients.

On return Ms Morris wished to clarify a point about transfer timescales:

‘am I right in understanding it’s 7 days notice of implementation of a decision, is that correct my Lord?’

62/

MJRK: Yes, there would be no transfer without 7 days notice unless the court orders otherwise.

Ms Morris then sought clarification that transfer meant moving from one hospital to another, and not moving within the hospital

63/

FM: My Lord will have learned from reading the papers, there are occasions when the claimant’s needs are quite intense, if I can put it that way. It is possible his presentation may alter so significantly that he requires admission to the Psychiatric Intensive Care Unit

64/

FM: The PICU where he is currently is essentially next door physically to where he is, so I want to ensure all parties on the call are aware moving from one part of hospital to another, isn’t part of this… so if he required admission to PICU it wouldn’t require 7 day notice

65/

MJRK clarified: when I say transfer I mean from the one full site or interconnected site to another, if hospital is the right description for that so be it.

66/

MJRK was also keen to make it clear if for some unfortunate reason AP were to become very seriously ill and required taking to hospital he obviously didn’t want to exclude that happening

67/

JB: While we’re in agreement to mediation, we have to get approval from Legal Aid agency to contribute to costs; we’ll do that as soon as we can. I’m conscious we don’t have a date for that disclosure so perhaps that could be put into the order.

68/

Ms Morris interjected to confirm that they ‘anticipate giving disclosure on Wednesday next week’

JB asked whether MJRK would wish to preserve the case himself ‘having regard to the amount of reading already done and the setting of the roadmap'

69/

MJRK agreed that the case should be referred to him if he was at all available; he also offered it be made clear to the Legal Aid Agency that he fully supported the use of legal aid in relation to mediation rather than the court at this point

70/

There was a short discussion about costs, they’re reserved (meaning judge will decide later).

Next steps is @JamieBurton29 will draft an order asap, then Ms Morris offers her edits, and they send an agreed order to Mr Justice Robin Knowles later today or tomorrow morning.

71/

MJRK ended with what I can only describe as a grandfatherly banging of metaphorical heads together. He said:

‘Let me just emphasise, if I may, how given the experience of both the solicitors firms in this case, how much I believe they can contribute to...

72/

MJRK: ...a collaborative approach in the weeks ahead. They’ve shown their ability to engage in a way that is vigorous in challenge and counter challenge, and I understand that, but they’ve got the experience and skillset to be able to shift to collaboration.

73/

That’s it for now.

I’ll try to keep up with future developments and keep you all posted

#OpenJustice #learningdisability #autism