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Ms Jemimah Hendrick (instructed by Legal Services) for the applicant Mr Ian Brownhill (instructed by Duncan Lewis) for the respondent Mr Adam Fullwood (instructed by Ward Hadaway) for South East London CCG Hearing dates: 25-28 January 2021 ____________________
HTML VERSION OF JUDGMENT APPROVED ____________________
Crown Copyright ©
Williams J:
Introduction
The Court is concerned with EOA. EOA was born on 5 August 2001 and is therefore 19 years old. EOA and his twin brother D were removed from the care of their parents in December 2015 and were made the subject of full care orders on 21 June 2016, together with their two other siblings. They were removed from their parents' care as a result of ongoing concerns about the parents' treatment of the children, which included keeping them isolated from the rest of society, not allowing them to attend school or receive any medical treatment and subjecting them to extreme religious and anti-social indoctrination as well as emotional and physical abuse. Their parents played no part in the care proceedings and did not seek to have any contact with them; effectively they abandoned them.
EOA and D were both placed together in a Local Authority foster placement. During the care proceedings psychological assessments of the brothers were undertaken and concluded that EOA might have a learning disability, autistic spectrum disorder and that he was very much under the influence of DOA. The assessments were tentative because EOA declined to engage to any great extent and that has remained a feature of his presentation ever since. On reaching his 18 th birthday DOA who was assessed to have capacity, unlike EOA left the foster placement on 5 August 2019 at 6.30am without EOA and his whereabouts are still currently unknown, although there has periodically been reports of sightings of him in the Bromley area.
In anticipation of EOA reaching the age of 18 on the 5 August 2019 on 23 July 2019 the Royal Borough of Greenwich ("the Local Authority") applied to the Family Division under the inherent Jurisdiction and to the Court of Protection for a personal welfare order in respect of EOA. The Local Authority initially sought the following declarations; (a) That EOA lacks capacity to litigate; (b) That EOA lacks capacity to make decisions about his care and treatment (c) That EOA lacks capacity to decide where he should live; (d) That it is in EOA's best interests for him to reside at a supported living placement identified by the Local Authority; (e) That the placement and care plan proposed by the Local Authority are lawful and in EOA's best interests.
Following the commencement of proceedings various Judges made interim orders in respect of EOA including interim declarations as to capacity. EOA case first came before me on 16 October 2019. He attended and spoke of his very strong desire to be free of court proceedings and his wish to make his own choices in relation to where he lived and with whom he spent his time, in particular his brother but also his wider family. On that occasion I decided that EOA should move to live from his foster placement in a residential placement. The nature of EOA's life at that placement was such that it would amount to a deprivation of his liberty and I made further interim declarations and a deprivation of liberty order.
On the 16.12.20 I heard the case again. Both EOA and his brother POA attended that hearing and I considered issues to do with EOA's contact with his family. I made final declarations in relation to EOA's lack of capacity:
I made provision for the obtaining of expert evidence in order to determine further issues in relation to EOA's capacity in relation to contact, foreign travel and use of the internet and social media and Dr Layton was instructed to prepare an assessment of EOA. An assessment early in 2020 concluded that EOA was unlikely to meet the diagnostic criteria for an autistic spectrum disorder rather than having a complex attachment history and learning difficulties which led to his local ASD service not agreeing to provide treatment.
At that stage there were some concerns about EOA's placement and in particular there was considerable uncertainty as to the nature of the care and treatment that would best this meet EOA's welfare needs given the complex interweaving of issues relating to the impact of his upbringing, his possible learning disability and his possible autism. Although the issue of EOA's capacity to make decisions about his care and support and where he should live had been made, the determination of what was in his best interests and in particular whether a deprivation of liberty order should be authorised made remained very much alive. There has been some debate in the course of these proceedings as to how one should characterise or describe EOA's experience of life in his family up until his removal into care. Neglect, radicalisation, coercion and control, undue influence and duress have all featured, but it seems to me that the phrase proposed by Dr Layton and adopted most recently by Dr Dubrow- Marshall, namely indoctrination seems the best fit for the totality of EOA's experience in the family environment provided by mother and father.
The Local Authority and the Official Solicitor had resolved many issues in this complex case prior to the commencement of the hearing. It is agreed that EOA lacks capacity to;
At this final hearing, the Local Authority are seeking final declarations that EOA lacks capacity to make decisions in relation to;
The following additional issues also emerged;
In advance of the hearing the Local Authority represented by Ms Hendrick, the official Solicitor represented by Mr Brownhill and the CCG represented by Mr Fullwood submitted written position statements. I formally Joined the CCG at the commencement of the hearing. I'm grateful to the advocates for their assistance in their written and oral submissions.
I was provided with a bundle on Caselines and I heard evidence from;
The Parties Submission
The Local Authority's position in respect of the remaining issues is as follows;
At the conclusion of the evidence and in submissions the Official Solicitor submitted as set out below.
Having heard the evidence of Dr Layton the official solicitor accepted that the causal nexus between EOA's autism and his inability to make decisions in the relevant domains (primarily arising out of his inability to use or weigh the information due to the rigid thinking associated with autism)was established and any need to consider whether he was a vulnerable adult requiring protection under the inherent jurisdiction had abated. The OS also accepts that the indoctrination continues to play a role and that after the psychological intervention to address issues of indoctrination and autism have had some time to impact on EOA's functioning that a further assessment of his capacity will be required. The MCA is therefore the correct framework as opposed to the inherent jurisdiction.
However, Mr Brownhill submitted that when the psychological treatment has been carried out it will still remain necessary to unpick what the effect of the indoctrination was, and care will need to be taken to ensure that he is not regarded as incapacitous indefinitely either because of the diagnosis of autism or because of the undiagnosed consequences of indoctrination
She accepts that on the evidence the Court is able to declare, pursuant to Section 15, that, EOA lacks capacity to;
One of the principal submissions of The Official Solicitor at the commencement of the case was that the lack of a clear treatment plan should cause the court to pause long and hard before making any long-term orders. However, the late provision of evidence from the CCG, from DR Thomson and from DR Dubrow- Marshall together with the oral evidence of Dr Layton and Ms Meehan satisfied The Official Solicitor that an embryonic but satisfactory treatment plan had now emerged. It now required to be reduced to writing in or following the professionals meeting. On the basis that this judgement would set out my conclusions in relation to what was required and that this should then via the prism of the professionals meeting find its way into a concrete treatment plan The Official Solicitor was satisfied that the overall package proposed both in terms of care and support and treatment was in EOA's best interests. The Official Solicitor will propose that the public bodies have a month to hold the necessary meetings to formulate a plan informed by today's evidence and the court's judgment.
The Official Solicitor submitted that the restrictions in the care plan are necessary, save that the permission in respect of physical restraint is no longer necessary and should be removed. I was invited to reflect in its judgment that ABA and PBS ought not be used and instead that the bespoke "management" or "dynamic PBS" should be developed and put before the court. The Official Solicitor proposes that a separate care plan is devised in respect of EOA's contact with JOA, with the input of those providing the tripartite treatment plan.
The Official Solicitor submitted that the court should continue to authorise the deprivation of liberty in the next month, under section 48 as an interim order. Then, once the overall plan is choate, the court could determine the length of the authorisation and who acts as r.1.2 representative for that authorisation period. The Official Solicitor initially pressed for a six-month deprivation of liberty order on the basis that the care and treatment plan was so inchoate and its implementation so uncertain that the court should be in a position to review progress but also that the prospect of a further hearing would provide a stimulus to ensure that good intentions were acted upon. However my indication that I would not finally approve an order until after the professionals meeting proposed by Ms Meehan my confirmation that I would reserve all further applications relating to EOA to myself satisfied the official solicitor that there was a sufficient mechanism in place to ensure both that the plan became choate and that stumbles in the implementation could be addressed in a swift resort to the court satisfied The Official Solicitor that period free of litigation justified the making of a deprivation of liberty order for 12 months.
The Official Solicitor's position remains that through 2020, EOA was not given the support he was entitled as a care leaver and this ought to be reflected in a declaration. The OS accepted that the principal responsibility for a failure to progress EOA's education might lie with children services rather than with the current team but still maintained that the issue had been these proceedings and had not been adequately addressed.
The clinical commissioning group were joined as parties and provided the court and the parties with assistance in the form of information and evidence. Mr Fulwood on behalf of the CCG did not advocate for any particular outcome but emphasised the framework within which the CCG operated and emphasised that whilst it could commission services it could not determine precisely how they were delivered. Those were clinical judgements not commissioning decisions. The CCG accepted that an appropriate order should not emerge until the professionals meeting had been undertaken and produced a plan. One of Miss Meehan's colleagues would be delegated the task of coordinating the meeting and the provision of services.
The Legal Framework
The Mental Capacity Act 2005 sets out the statutory scheme in respect of individuals aged over 16 who lack capacity. Section 15 gives the court the power to make Declarations as to whether a person lacks capacity to make a specified decision and the lawfulness or otherwise of any act done or to be done in relation to that person. Section 16 gives the court the power to make an order and make the decision on a person's behalf. Section 48 gives the court discretion to make an order on an interim basis and in particular if it is in the person's best interests to make the order without delay.
Section 2(1) of the Act provides that a person lacks capacity if;
Section 3 provides that a person is unable to make a decision for himself if he is unable;
Thus, the act provides a diagnostic threshold where the court must identify and impairment of or disturbance in the functioning of the mind or brain and this must be the cause of the functional criteria namely the inability to make a decision. In NCC v PB (By her litigation friend the Official Solicitor), TB (By his litigation friend the Official Solicitor) [2014] EWCOP 14 Parker J considered the issue of combined causes of decision-making inability and concluded:
Mr Brownhill referred me to two decisions of Cobb J in the linked Judgments of A (Capacity: Social Media and Internet Use: Best Interests) [2019] EWCOP 2 and B (Capacity: Social Media: Care and Contact) [2019] EWCOP in which he set out an approach to the assessment of capacity in relation to social media and internet use and contact. These were endorsed by the Court of Appeal in B v A Local Authority [2019] EWCA Civ 913 . That approach was reflected in Dr Layton's approach.
Section 1 of the Act sets out the principles applicable under the Act. The section provides that
Section 4 of the Act deals with 'Best interests'
The courts have emphasised in a variety of contexts that 'best interests' (or welfare) can be a very broad concept.
The weight to be attributed to P's wishes and feelings will differ depending on such matters as how frequently they are expressed, how consistent the views are, the complexity of the decision and how close to the borderline of capacity the person is. (See [35] RM, ITW v Z [2009] EWHC 2525(COP) [2011] 1WLR 344 ). In Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67 the Supreme Court made it clear that the court below had been wrong to focus on what "the reasonable patient" would decide, and emphasised that the patient's own wishes and feeling must be properly considered: "the things which were important to him… should be taken into account because they are a component in making the choice which is right for him as an individual human being."
Deprivation of liberty is addressed in section 4A MCA 2005. That provides that P may be deprived of his liberty if by doing so the person is giving effect to a relevant decision of the court. A decision by an order under section 16 thus authorises a person's deprivation of liberty. There is a distinction between a deprivation of liberty and a restriction of liberty. In the case of Storck v Germany , the court said that there are three broad elements to consider when determining whether or not a person is deprived of their liberty.
Therefore, a host of matters must all go into the balance when the Judge seeks to arrive at his objective assessment of P's best interests
Care Proceedings
In his Judgement delivered on 21 June 2016 District Judge Alderson said as follows:
Dr Sophia Jansen an educational psychologist saw EOA and DOA in April 2016. She noted that he appeared to be very vulnerable and easily influenced by his brother. She found it difficult to interact with him or to engage him. She thought he was very dependent upon his brother and vulnerable to influence by him. She was unable to reach a clear view on his level of learning disability. Dr Halari, a chartered consultant clinical psychologist provided a detailed report on the sibling group in May 2016. In relation to DOA she concluded that his ' experiences of being parented, the negative influences of his parents in relation to education, religion, professionals and society in general, his lack of engagement in education and socialisation is likely to have had a significant detrimental impact on his psychological cognitive, behavioural, social and emotional development. I refer to DOA because she goes on to say in respect of EOA that he was quite strongly influenced by DOA's presents his views and opinions and that he had a tendency to copy and mimic his brother's views and beliefs. EOA refused to engage in the cognitive assessment. She was of the view that EOA ' suffers from neurodevelopmental difficulties such as learning difficulties, social and emotional communication/developmental difficulties' and that ' the lack of adequate educational/social emotional behavioural support, the parenting that he has received in particular teachings relating to people, systems and society is likely to have had a negative impact on EOA.
Dr Layton's Evidence
Dr Layton is a consultant psychiatrist with particular specialisation in autism. The questions he was asked and the substance of his report and evidence in respect of them is as follows;
Dr Dobrow-Marshall is a consultant psychologist with particular interest and expertise in issues relating to involvement with new religious movements and cult membership. She offered to work as a consultant to the practitioner psychologist, an expert in autism., In her communications she expresses her views as
The way she formulated the approach would be;
Following further consultation between DR Dubrow- Marshall, Dr Layton, Collette Meehan of the CCG and DR Graham Thomson of the Oxleas NHS Foundation Trust a more detailed treatment plan was formulated which would bring together components including.
Ms Colette Meehan is the assistant director, integrated adults commissioning (Greenwich) south-east London clinical commissioning group. The CCG is responsible for commissioning support for both autism and psychological therapy and she confirmed that they would deal with EOA on the basis that there was a confirmed diagnosis of autism and that the issues relating to indoctrination or de-radicalisation (which would not fall within the CCG's responsibility) were subsidiary. She confirmed that although the Local Authority would retain overall control for the case management of EOA the CCG would have responsibility for commissioning psychological therapies which would be delivered by OXLEAS, through the learning disability and autism program (formerly the transforming care programme which would deal with ASD issues and through the adapt team. The CCG would fund
She said that she would convene a professionals meeting including Dr Layton, Dr Centonze, Dr Dubrow-Marshall, Dr Thomson, the social worker and a staff member from T to draw up a detailed plan. I adopt the expression care and treatment plan for this. I was impressed by Ms Meehan and although she was not in a position to provide guarantees in relation to the precise level of funding or the precise treatment that would be provided, I'm satisfied that she was committed to ensuring that the best care and treatment plan was commissioned for EOA.
Precisely how the care and treatment plan is constructed from the elements set out at paragraph 25 above and the commitment offered by Ms Meehan set out at paragraph 16 of her statement and recorded at paragraph 26 above will need to be subject to detailed discussion at the professionals meeting. What all seem to be agreed upon though is that it must comprise the three essential elements of training and support for the staff of T provided by Dr Dubrow-Marshall and Dr Centonze to equip the staff with the necessary skills in the field of indoctrination and ASD to deliver the period of stabilisation; the element of treatment for ASD delivered by the ASD service and the element of treatment for indoctrination delivered by adapt. The lead psychologist is identified to be Dr Centonze but it will be a truly multidisciplinary team comprising not only the psychologists but also the care team, other specialists within the ASD and adapt teams, the social worker and others.
Ms Aroyewun filed the Care and Support Plan which sets out the detailed provisions proposed for EOA's continuing care at T. It is a detailed document. In short it proposes that EOA continues to reside at his current placement which he currently shares with two other individuals and the staff. He has his own room and his access to and from the house is controlled. Trips to the community are supervised. This will continue. The change to the arrangement centres around the extra training and support that the staff will be given in dealing with EOA's autism and the consequences of his indoctrination. EOA does not generally engage with his social worker but has developed relationships with the staff at the placement. It is his engagement with those staff that reflects the progress that he is making.
Helen Cummings has filed a number of statements on behalf of the Official Solicitor. EOA generally declined to speak to her and so the information she gains is via the staff at his placement. That records that EOA is generally content in the placement, engages with the other resident and speaks with and speaks with staff. He has daily routine, he helps with cooking, cleaned his room looks after his personal hygiene and goes out shopping or for a walk twice a week he listens to music and watches You-tube. The star's view was that his ability to live independently was limited as he needed support with cooking and shopping. He would like his own laptop rather than using that of the placement. He won't see the GP although complains of back pain which limits his walking. He doesn't talk about his family much although looks forward to contact with JOA. He was asked if he wanted to attend the hearing but did not wish to do so.
Discussion and Determinations
The Applicant and the Official Solicitor have agreed many of the issues although that does not absolve the court of undertaking its own evaluation and reaching its own conclusions on agreed matters. In this case I have already reached final conclusions on important aspects of EOA's capacity to;
Nothing that has emerged in the evidence which has been produced since those decisions were reached undermines the validity of those decisions but rather Dr Layton's oral evidence reinforces them.
Despite the difficulties in carrying out a comprehensive assessment of EOA that Dr Layton, (as experienced by almost every other health professional) experienced as a result of the difficulties in securing EOA's engagement I am satisfied on the balance of probabilities that the diagnosis of autism is an accurate one. Dr Layton surveyed a broad landscape encompassing historic assessments of EOA, the views of his current carer's and EOA himself and given his degree of expertise in the area I accept his opinion. The particular feature of that condition which bears upon EOA's ability to make decisions is his fixed thinking which prevents him using or weighing information which is different to his preconceived and fixed ideas. This at the moment dominates his thinking in relation to very many important decisions that have to be made. That is not to say that there are not areas where he does show an ability to weigh and use information and where is thinking is not rigid but for the purposes of the decisions which have been put before me for adjudication it is this aspect of his condition which also in some contexts renders EOA unable to understand relevant information but most importantly prevents him using or weighing it as part of the decision-making process. I am therefore satisfied that EOA has an impairment of, or a disturbance in the functioning of the mind or brain within section 2 (1) MCA.
Although I do not need to decide the issue as I am satisfied that EOA has an autistic spectrum disorder and that he lacks capacity in the relevant domains as a consequence of the fixed thinking associated with his autism and his consequent inability to weigh information it does seem to me that there is an issue which may at some stage need determining as to the role that other features of EOA's psychological condition may be playing in relation to questions of capacity and jurisdiction. Both Dr Jansen and Dr Halari identified that EOAs experiences had impacted on his psychological functioning or development. The definition of harm in the Children Act 1989 means ill-treatment or the impairment of health or development. Development means physical, intellectual, emotional, social or behavioural development and health means physical or mental health. District Judge Alderson accepted that EOA had suffered significant harm as a result of the abusive parenting he had experienced, and in particular the indoctrination into a way of life and belief system well beyond any norms in society; even giving due allowance for the very wide margins acceptable in a modern liberal society. It is well established that emotional abuse and neglect can have both physiological/neurological consequences in terms of brain development and psychological consequences. The absence of any specific diagnosis in relation to EOA of the effects of his neglectful and abusive childhood does not mean that they may not still be present and playing a part in his current functioning. In theory at least it seems to me possible that even if it were not possible to fit those consequences into any known diagnostic category that they would be capable of having caused an impairment of or a disturbance in the functioning of the mind or brain which would potentially bring them within the ambit of section 2(1) of the Mental Capacity Act. Of course, EOA's case is as a I have said far beyond any broad societal norms and within the spectrum where it can properly be characterised as indoctrination. Thus, even where the causes of incapacity caused by autism resolved that might still leave issues to be determined as to whether the consequences of his abusive indoctrination had consequences in terms of his capacity. Self-evidently it might also engage the protective Jurisdiction of the court in relation to vulnerable adults even if the consequences did not sound in capacity issues. However, given the evidence of Dr Layton that the autism itself is either substantially or entirely the source of EOA's inability to use or weigh information those are questions I do not need to resolve today. As Dr Layton said in evidence it is not possible to disentangle the effect of autism and the effects of the indoctrination in any way so as to quantify them but the fixed thinking which is a well-recognised aspect of autism, (but would also be consistent with indoctrination) establishes the causal nexus required by section 2(1) MCA.
In relation to foreign travel and possession of his passport I am satisfied that EOA lacks capacity to make decisions as to his foreign travel given his lack of understanding of various issues relating to the practicalities of arranging foreign travel including managing the funds and the risks associated with foreign travel and his inability to use and weigh relevant information.
In relation to the question of contact with others it seems to me that this issue does have to be broken down into separate compartments. First of all, there are issues of capacity relating to family members; those who maintain the doctrine including the mother, father, DOA and JOA and those who have left the doctrine behind covering POA and TOA. Secondly there are issues of capacity relating to third parties or strangers. I agree with the Local Authority and with the Official Solicitor that it is appropriate to apply a different approach to questions of contact with family members to that which should apply to the generic issue of capacity to have contact with strangers or third parties. In relation to his capacity to make decisions about contact with family members who remain within the doctrine the evidence establishes that EOA understands the contact with family he does not understand the risk they pose to him and is unable to weigh that in any decisions about contact with him. This rigidity of thinking arises from his autism although may also be impacted by indoctrination. He thus lacks capacity to make decisions in relation to those family members. In relation to family members who are outside the doctrine EOA expresses no interest in seeing them. This may be because to do so he sees them in large groups which she does not like because of his autism but it may also be because they call into question his beliefs about the family. When POA attended court with EOA, he expressed his reluctance to see EOA because EOA's view of the family tended to undermine POA's separation from them. It seems to me that EOA lacks capacity in relation to these family members principally because he does not understand the benefits of seeing those who are outside the doctrine and he might be able to help him to understand the harm is indoctrination has done to him. As Mr Brownhill put it, he would need to understand something about the family dynamics and the differences that exist in order to make a capacitor's decision. Achieving this is part and parcel of the long-term three-pronged care and treatment plan. Thus, I am satisfied that EOA lacks capacity to make decisions in relation to contact with his family members. I'm satisfied that it is appropriate to make a separate declaration in respect of this aspect of contact with others because it is a fact specific decision which arises in this case and which has to be addressed. I will make declarations in this regard and am satisfied that they should address the issue of social media and Internet usage for the reasons set out below.
In relation to contact with strangers or third parties it is appropriate to consider the established formulation of the relevant information. Dr Layton identified EOA's lack of understanding of his own vulnerability arising from his lack of social awareness, social naïveté and autism which make him vulnerable to exploitation and abuse. His fixed thinking and unwillingness to consider these issues prevent him weighing issues relating to his vulnerability and he thus lacks capacity to make decisions about contact with strangers. There is an argument that in relation to contact with strangers that EOA might with the provision of information and support capacity to make decisions about contact with strangers in the way that he might with support regain be able to make capacitors decisions in relation to general social media and Internet use. However, I think there is a distinction. The issues of lack of understanding of his vulnerability and his susceptibility to exploitation by strangers in relation to contact our more profound than those which bear upon social media and Internet usage. There is some link in that one can lead to the other but the progress that EOA would need to make in understanding his vulnerability in face-to-face relationships with third parties or strangers are far more deep rooted and are likely only to be addressed through the three-pronged, long-term care and treatment plan. I am therefore satisfied that EOA lacks capacity in relation to making decisions about contact with strangers and that the final declaration should be made in this regard. I do not consider that an interim declaration is appropriate in this regard.
I'm satisfied that in relation to general issues of access to the Internet and social media that decisions such as Re A (Capacity: Social media an Internet use: best interests) [2019] EWCOP 2 provide a proper route map to a decision in relation to this issue. The evidence establishes that EOA's capacity to use social media and the Internet is currently hampered by his lack of awareness of the possibility of deception and exploitation by third parties with interests adverse to his own. This in Dr Layton's view amounted to a lack of understanding which meant he lacked capacity. Dr Layton's thought he might gain capacity relatively easily with appropriate support and information in this area.
However, I am satisfied that this approach does not assist in relation to the particular decision which arises in relation to use of the Internet and social media for the purposes of searching for his family or contacting them. In this regard the issue is far more closely aligned with the approach to contact with other named individuals where the courts evaluation should be decision specific. The use of the Internet or social media is merely one vehicle by which EOA might seek or have contact with family members who pose a risk to him and in respect of whom he lacks capacity to make decisions as to contact. Social media and the Internet today are the modern equivalent of a telephone directory or a letter of a previous era; they are simply a means of gathering information or communicating and in this case where there are clearly identified individuals whom EOA lacks capacity to make decisions in relation to contact seems to me that this should be recognised. The danger of not dividing these domains into more specific identifiable decisions would be to either apply an approach which was too restrictive in that it would apply a high bar in relation to strangers which in fact was only relevant to family members or alternatively it would apply too low a bar relevant to strangers to issues of contact with high risk family. I am satisfied that the statutory scheme and the jurisprudence does not require such an approach but requires a tailored and decision specific approach where that is appropriate on the facts. Thus, the order in relation to general internet and social media use should be an interim order which reflects the fact that further practicable steps to enable EOA to make capacious decisions in this regard. In relation to social media and Internet usage in the context of contact with family members that should be incorporated in the declarations addressing contact.
Although EOA's capacity in relation to his physical health has not been expressly addressed, his reluctance to engage with doctors is a long-standing issue. This was noted during the care proceedings in 2016 and has endured down the years to his recent refusals to engage with the GP. As with other aspects of EOA's behaviour it seems probable that is refusal to engage with the GP is a complex interweaving of views derived from his upbringing and an inability to weigh information arising from that and from his autism. In relation to matters such as vaccination given to this. EOA is likely to refuse the vaccination as that has been his express position in relation to all forms of immunisation. It may be concluded at the relevant time that he lacks capacity in relation to vaccination but in welfare terms the issue of forcing a vaccination upon him would raise very sensitive issues of the balance between his physical health and the psychological impact which might be profound and would almost certainly have a significant impact on his trust in those around him and their ability to engage him in the sort of normalisation and desensitisation on work as well as any autism related work.
In this highly unusual case, it is clear that the care and treatment of EOA needs to be bespoke. The complex interplay between the psychological consequences of EOA's upbringing and the impact of autism requires a bespoke approach which has now been identified. Approaches which might be well established for individuals with autism have to be re-evaluated in the light of the indoctrination elements of EOA's psychological make up. It is clear that ABA is inappropriate, and that PBS needs to be tailored specifically to EOA as an individual; dynamic PBS as suggested by the Official Solicitor. The care and support plan drafted by the Local Authority subject to the amendments outlined by Ms Hendrick provides an appropriate for EOA's medium to long term care. He has settled into that placement and has begun to develop relationships with some of the staff. It is important that the stability and security that brings EOA continues and that he is able to regard it as a home. The proposals that have been made in relation to the treatment plan with its three psychological components now provides an appropriate foundation for the treatment element of EOA's future care.
Taken in combination I am satisfied that the care support and treatment plans provide solid foundations on which EOA's medium to long-term future can be built. The two factors which weigh in the scales against the adoption of that care support and treatment plan as being in EOA's best interests are his own strongly held wishes to be reunited with his family and the prognosis.
EOA has consistently expressed the desire to be reunited with his parents and brother DOA. This has been a feature of his expressed wishes ever since he was removed into care. He is now 19 years old and has been consistent for some five years. He has expressed them firmly and articulately to me. The long held and firmly expressed wishes of a 19 year old young man warrant considerable attention. However those strongly held wishes remain very much a product of the indoctrination that led to EOA's removal into care and given that EOA lacks capacity to make decisions as to where he lives, his care and his contact with his family I am satisfied that those wishes must give way to the general welfare benefits that the care, support and treatment plan provide. I wonder whether EOA himself recognises or has some awareness of the benefits to him of his current living arrangements but is unable to express those because of the his indoctrination which have a firmer hold on him than they have for instance on POA or TOA. The other issue which bears upon the decision as to whether it is in EOA's best interests to approve the care support and treatment plan is whether it is likely to achieve its goals and thus whether it is necessary and proportionate for the court to make the order is sought. EOA has been in care for five years and there is only modest evidence of change. Thus, is it proportionate to keep EOA from his family against his wishes if there is only modest prospects of success. For reasons which have not been fully explored it seems that EOA has not been able to access the sort of treatment that is envisaged under the three-pronged treatment plan now proposed. It seems from reading about EOA as he was in 2016 and now that there have been modest changes in his presentation and that his experience of life with his foster carer and in his placement have had some beneficial impact. It therefore seems probable that the bespoke care support and treatment plan proposed is likely to have a beneficial impact albeit over an extended period measured in years not months. Given the length of time EOA was exposed to indoctrination and the length of time that his autism has been untreated it may be that the changes that will be affected may be hard to predict and modest in extent but it is clear that the prognosis is positive if uncertain. That being so I am satisfied that and that it is a necessary and proportionate response to his situation. No lesser measure could be put in place to achieve the same ends.
The care, support and treatment plan continue the living arrangements for EOA which plainly constitute a deprivation of liberty given the limitations which are placed on his ability to leave the placement and the levels of supervision which are put in place both within the placement and when he ventures into the community. They are imputable to the state and EOA cannot consent to them. Although the risk of EOA absconding appears to be low the consequences of him being reunited with his family are extremely serious the risks to EOA in the community given his lack of capacity relating to contact with strangers also create considerable risks for him. I am therefore satisfied that the deprivation of liberty that the care plan represents is necessary and proportionate.
I agree that it is unnecessary to make express provision in the deprivation of liberty order authorising EOA's restraint. Although he expresses a firm wish to be reunited with his family so far as anyone is aware, he has not made any attempt to leave TOA or even to search for his family. When he has left the GP surgery unaccompanied, he returned to the house and did not abscond. Nor is his behaviour in the home such as to have required the staff to use any form of restraint. Although he may be assertive in expressing himself, he is not violent and is generally compliant with the rules of the placement. It is therefore neither necessary or proportionate to authorise the use of physical restraint. Given the difficulties that have been encountered during the course of these proceedings in tracking down EOA's mother and father for the purposes of notifying them of these proceedings it seems clear that were EOA to locate them and to that if he were successful it might prove impossible to find him again. The frequency with which the family move and their ability to evade detection would mean that the consequences were EOA to abscond would be likely long term and thus serious. The placement needs to be aware of this, as I'm sure they are, and to be vigilant to any sign that EOA might be seeking to locate them or even more seriously that he might have located them and was seeking to leave to Join them. However, as Mr Brownhill submits the statutory framework would permit the staff to take steps to prevent EOA absconding even without express to restrain him.
EOA lacks capacity to make decisions in relation to contact with JOA and it is proposed that he should continue to see him. The concern in relation to JOA is that he remains aligned with the family and there is evidence that he has made comments to EOA supportive of the family position and which would therefore have a tendency to undermine EOA's ability to disentangle himself from the family position. However, the Local Authority accept that EOA looks forward to his contact with JOA and that much of the content is appropriate as between brothers. EOA shares his drawings and the boys talk about cars and other day-to-day subjects. There is concern that terminating would be perceived by EOA as punitive and confirming his negative perception of the Local Authority thus further undermining efforts to normalise and stabilise EOA. The social worker gave evidence that following communications with JOA's social worker that his foster carers had been alerted to this issue and were now monitoring the contact; albeit with a light touch and were primed to intervene if JOA said anything inappropriate. As a consequence, the contact between the brothers in recent weeks as not been tarnished by any inappropriate comments but has been innocuous. That being so provided he continues in the main to be positive it should continue. If there were a very dramatic change in JOA's approach that position would need to be revisited. I'm satisfied this contact is in EOA's best interests.
The Local Authority accepted that the making of a deprivation of liberty order and the necessity for a review meant that pursuant to COPR 1.2 a representative should be appointed. The Local Authority initially proposed that T's independent mental capacity Advocate be appointed on the basis that he knew the family well and was willing to act as EOA's litigation friend. The official solicitor did not take a firm position on this but remained willing to act as EOA's litigation friend. Given that T is regarded as an outsider by EOA it seems to me that appointing someone close to him, even if there is no overt conflict-of-interest, would find it difficult to engage with EOA who would be likely to reject him as tainted by association with T. Seems to me that the most appropriate litigation friend will be the continuation of the current arrangements.
The statutory scheme provides for the provision of a pathway plan to promote education and training for a care leaver. It emerged that unknown to EOA's current team that the children's team had in fact developed a pathway plan via his children social worker and they had monitored it. Although for a period of in excess of six months the pathway plan had not been reviewed as a result of the absence of the social worker seems to me that in reality this almost certainly had no impact on the ground. At present the benefit of a pathway plan is that if as a consequence of the treatment plan EOA expresses an interest in education or training that a pathway plan will mean there is a vehicle by which steps can be taken very rapidly to implement such a willingness to access education or training. Historically the evidence makes clear that EOA had almost no formal education. When he was received into care the educational psychologist suggested a special school for children with severe learning disabilities. I have not been able to unpick precisely what happened in relation to EOA's education between the making of the care order and his reaching his 18th birthday although it seems clear that home-schooling was attempted but was withdrawn when EOA did not engage. I entirely accept that for an individual in EOA's position nonengagement (as for autism itself) should not lead to the immediate conclusion that nothing can be done, and services be withdrawn. However, in EOA's case is nonengagement is not an aspect of his behaviour that is readily addressed; it permeates his whole personality and relates to far more than just education, but extends to health, engagement with almost any authority figure whether a social worker, a pathway adviser, his legal representatives or any other emanation of authority. Those who EOA engages with tend to be those he knows and has developed some trust in. A pathway plan and pathway adviser whether actively promoted or desultory promoted over the last 18 months would have gained no traction but would have represented another individual who EOA would have declined to engage with. I very much hope that the tripartite approach contained within the proposed care and treatment plan will open a window in EOA's mind to the potential benefits of education or training. Thus, the existence of a pathway plan which will allow rapid advantage to be taken of any such opening that the care and treatment plan creates in EOA's attitudes to society and normative behaviours. Although the issue has been rumbling along in the orders and position statements and it is right that the official Solicitor has identified the issue I do not think in practice in this case it is of real significance in the way it was in Re ND where Mr Justice Keehan did feel it appropriate to make a Declaration that the Local Authority had failed to fulfil their statutory duty. It is of peripheral relevance in this case and I declined to make any declaration. I accept that those involved in these proceedings and on the ground have done their best (with occasional shortcomings) to deal with a situation and individual that does not fit into any readily recognised categories and that has taxed even the minds of experts in their fields such as Dr Layton and Miss Meehan.
Conclusion
I will therefore make declarations that EOA lacks capacity to make decisions in relation to;
In relation to social media and Internet usage this will be an interim declaration. I do not consider that a declaration in relation to EOA's capacity to consent to medical treatment can properly be made at this stage albeit I have recorded my views in that regard above. The previous declarations that I have made together with those set out above should be recorded in one order. I declined to make a declaration in relation to the issues relating to the pathway plan.
I determine that it is in EOA's best interests for the care support and treatment plan to be implemented. The care and support plan needs to be amended and the treatment plan needs to be set out in black-and-white following the professionals meeting.
The final order will not be made until the amended care and support plan and the treatment plan have been finally agreed and I will allow a period of six weeks for this to be finalised.
It seems to me that once approved the plan needs a period of a year at least to bed down without the distraction of litigation pending. It can therefore be reviewed by me one year on from the final order being made. I will reserve applications relating to EOA to myself. If it is agreed in a years' time that the plan is working and that it should continue the matter can be dealt with on paper. If substantive issues need determining, then I will hear the matter at that stage.
It seems to me that the Official Solicitor should remain as EOA's litigation friend for the purposes of the review of the deprivation of liberty and the care, support and treatment plan.
I will write a short letter to EOA to explain to him why I have reached these conclusions.
That is my judgment.