How Paula Jones, Associate Community Care Law Solicitor based in our Brighton office, challenged Social Services in order to allow a young woman who had been detained under Section 3 of the Mental Health Act (1983) to be discharged from hospital to a specialist care home, to ensure that she received a fully funded package of support to meet her complex needs.
Jessica is a young woman with Korsakoff’s dementia, who had been detained under Section 3 of the Mental Health Act (1983) The involuntary hospital admission followed the breakdown of Jessica’s care home placement: Social Services had placed her in a standard care home where staff had no expertise in Korsakoff’s dementia and with a cohort of elderly residents. As a result of the inappropriate placement, Jessica’s mental health deteriorated significantly, she became abusive towards staff and Jessica eventually absconded.
After a lengthy stay in hospital, Jessica was deemed fit for discharge from section 3. She was assessed as lacking mental capacity to make decisions about her future residence, care and support. Social Services assessed Jessica as needing minimal support and made a decision, without following the correct best interest process, that Jessica should return to the flat that she owned in South West England.
Social Services said that Jessica only needed two care visits a day. Jessica’s family disagreed with Social Services: Jessica had lost many of her skills of independence due to her lengthy detention and the time spent in the unsuitable care home.
Jessica’s family argued that she required a “step-down” placement that specialised in Korsakoff’s dementia that could work with her to regain her skills of independence. Jessica agreed with her family and expressed a wish to go to the placement, with the long term aim of returning to her flat.
Social Services refused to agree to the specialist placement due to its cost. Jessica’s care in whatever environment would be fully funded by Health and Social Services under section 117 aftercare duties, because she had been detained under section 3 MHA 1983. Social Services argued that if care at home was not agreed, then a cheaper, standard care home could meet Jessica’s needs.
Paula presented arguments and evidence to Social Services that their current assessment of needs for Jessica was inadequate; and that their proposal for her to be discharged home with two care calls a day, or to a general care home, would not meet her needs. Paula argued that an inadequate care package would place Jessica at significant risk of harm and at risk of being re-sectioned under the Mental Health Act.
As Jessica lacked mental capacity to make decisions about where she should live and be cared for, Paula challenged Social Services’ failure to make a lawful best interest decision.
Paula argued that Social Services were making a decision based purely on financial grounds; without a best interest analysis, and that forcing Jessica to move to a placement that could not meet her specific needs was a breach of its section 117 aftercare duties to her. In addition, as Jessica did not want to go to the “general” care home, being placed there could amount to an unlawful deprivation of her liberty in breach of Article 5 Human Rights Act 1998.
Paula’s challenge was successful, and Social Services agreed that it was in Jessica’s best interest to be discharged to the specialist placement with support to help Jessica to develop her skills of independent living, with the aim to return home with an adequate package of care.
The dispute with Social Services took several months to resolve, but Paula ensured that Jessica’s human rights, quality of life and well-being were respected by Social Services.
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