IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM

QBD CLAIM NO. HQ11X03610

IN THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

MR PITTAWAY QC, SITTING AS A DEPUTY HIGH COURT JUDGE

23 November 2011

COURT OF APPEAL REFERENCE: C1/2011/

BETWEEN:

VERA GRACE WAYLOR

(by her litigation friend, JOHN PORTER)

Claimant

-and-

KENT COUNTY COUNCIL

Defendant

___________________________________________________________________________

SKELETON ARGUMENT

___________________________________________________________________________

1. The appellant’s background is set out in the Witness Statement of her son John Porter at Tab

6. She is a 90 year old frail lady who is currently in hospital. Her physical condition and risk

are set out in the Reports of Dr Fox and Dr Smithard. Her care home Bowles Lodge will be

closed today unless this Court interferes immediately and this will place the appellant at

significantly greater risk if she is transferred to another care home from hospital rather than

her familiar Home. The risk is of death.

2. The appellant was admitted there with “breathing difficulties” on the 21st October 2010.

Although such difficulties were not discerned on assessment at the hospital she was

admitted. When she was fit for discharge the respondent refused to take her back to her

care home Bowles Lodge on the grounds (which have changed from time to time) that she is

Elderly Mentally Infirm or that she has nursing needs. The clinicians do not accept that

Bowles Lodge is unable to meet her needs. The appellant in their view has no needs that

have to be catered to by nurses, save District Nurses, and the only concern would be the

amount of input the appellant needs from carers. As Bowles Lodge has had only one

resident for some weeks, the carer ratio is high and can meet the appellant’s needs.

3. In the opinion of her own expert Dr Smithard that the appellant does not have nursing needs

is agreed by the hospital Trust. The Trust also agree that the appellant is not Elderly Mentally

Infirm.

4. The defendant should, by its duty to bring to the learned judge’s attention all relevant cases

whether for and against, have referred to the case of Goldsmith. This is on all fours relating

to considerations of whether a residential home could cater for needs when a person had

been assessed as needing nursing care. Goldsmith shows the duties on Local Authorities to

consider the risks of moving an old person when making such a potentially dangerous

decision. There is no evidence that such consideration was given until the Witness

Statement of Anne Tidmarsh was faxed and emailed minutes before the hearing. This left no

time to marshal arguments – the appellant’s counsel had not read the Witness Statement

prior to the hearing – nor, most significantly, for Ms Tidmarsh’s view on comparative

dangers to be put to those clinically trained to give a view on risk to life.

5. Whether there is a risk that a judicial decision will bring forth premature death is far too

important to leave to the best “common-sense” of laymen howsoever brilliant and

experienced they may be in their own fields. Tab 12 shows the dreadful results of a non-

clinical, subjective approach reached without expert advice from those qualified to assess

such risks.

The approach to whether the appellant could be cared for at Bowles Lodge is set out at paras 83 – 91 and 99 of Goldsmith:

83. However, even if Dr. Cottee’s determination of the Appellant as “Level 2” is acceptable, it

does not, for the reasons I have already given at length, salvage Wandsworth’s position. Dr.

Cottee was at pains to explain the limitations of his remit. The decision whether or not to

move the Appellant from Mary Court was not one for Dr. Cottee to make: he could not

consider context: he did not know what the Appellant was like at Mary Court (see the

paradigm exchange, which I have recorded at paragraph 49 above). The decision was for

Wandsworth to make. The level 2 analysis of Dr. Cottee was only one aspect of the decision.

Self-evidently, many other factors needed to be weighed in the balance.

84. I do not propose to rehearse the attitude of Mr. Kelly as demonstrated by the extracts, which I

have cited earlier in this judgment. It is manifest that the only factor which weighed in Mr.

Kelly’s mind was Dr. Cottee’s opinion that the Appellant needed nursing care. There is no

evidence, to take just one example, that on 6 October he gave any consideration to the effect

on the Appellant of a move into nursing accommodation. There is no evidence that he gave

any proper consideration to the real possibility that arrangements could be made at Mary

Court to meet the Appellant’s needs. Indeed, the evidence is to the contrary: he was plainly

deaf to Linda Goldsmith’s arguments, and made no attempt to give her any reasons for not

accepting them.

85. Of course Mr. Kelly was entitled to give weight to Dr. Cottee’s views. But as I have already

said too often, Dr. Cottee’s views, even on his own account, were limited to one aspect of the

case. Thus if 6 October is to be considered the occasion on which the decision not to allow the

Appellant to return to Mary Court was taken, and if Mr. Kelly is the decision maker, it is

manifest to me that the decision was taken without full and proper consideration of all the

implications, and that as communicated to Linda Goldsmith, it was on the basis of Dr.

Cottee’s opinion alone.

86. In my judgment, therefore, Miss Richards has made out her submission that Wandsworth

treated Dr. Cottee’s opinion as determinative. Indeed, in her able submissions when

responding to the appeal, Miss Laing seemed to me, in reality, not to dissent from that

proposition. Her argument was that this was a rational stance for Wandsworth to take; that

Wandsworth was bound to be guided by Dr. Cottee, and that in the language of judicial

review, Wandsworth’s decision could not be impeached. For the reasons I have given, I

cannot, speaking for myself, accept that submission. Wandsworth were under a duty to take a

rounded decision, which took into account all relevant factors. It was under a duty to articulate

that decision clearly to those advising the Appellant. In my judgment it failed to do both, and

as a consequence its decision cannot stand.

87. I feel obliged to comment that Wandsworth has, in my judgment, brought this unhappy state

of affairs upon itself. Nothing in this judgment is intended to doubt the good faith of either

Mrs. Graham or Mr. Kelly. If the decision of the LCCP had been properly minuted, and

reasons given for its conclusion; had Mrs. Graham and Mr. Kelly properly weighed up all the

relevant considerations and communicated Wandsworth’s reasoned and balanced decision to

Linda Goldsmith it is unlikely that the decision would have been susceptible to judicial

review. I am prepared to accept that it is Wandsworth’s genuine opinion that the Appellant’s

best interests may be best served by nursing care. But that is not the issue. Judicial review is

about process, and in my judgment the process here has been manifestly defective.

Article 8 of the European Convention on Human Rights

88. This analysis, in my judgment, is sufficient to dispose of the appeal. However, the judge

accepted a submission made on Wandsworth’s behalf that whilst Article 8 was engaged in

relation to the Appellant’s right to respect for her private life, if the decision was otherwise

lawful, Article 8 added nothing to the debate. That was because Wandsworth’s interference

was both in accordance with the law and necessary in a democratic society to safeguard the

Appellant’s physical and psychological integrity. Speaking for myself, I an unable to accept

that submission when applied to the circumstances of this case.

89. It is trite law that in addition to being in accordance with the law and necessary in a

democratic society for the protection of the Appellant’s health, any interference by the State

with her right to respect for her private life must be proportionate. There is no evidence, in

my judgment, that Wandsworth gave any consideration to the principle of proportionality.

90. This is particularly marked in the meeting on 6 October. I have already set out in paragraph 52

above what can only be regarded as Linda Goldsmith’s practical, albeit emotional, expression

of the Appellant’s Article 8 rights. I have recorded Mr. Kelly’s response. It is apparent to me

that at no point in the meeting is there any evidence that either Mr. Kelly or any other

Wandsworth decision maker had addressed their minds either to Article 8 itself or to the

proportionality of Wandsworth’s response.

91. These are not academic considerations. It is not in dispute that a change to a strange

environment for a person of the Appellant’s frailty could have serious if not fatal

consequences. The proportionality of the response is, therefore, of the utmost importance. In

my judgment it is not good enough for Wandsworth, after the institution of proceedings, to

produce evidence that this was a factor in its mind when it made the decision (whenever that

was). In my judgment, the court has to look at the decision at the time it was made and at the

manner in which it was communicated to the person or persons affected by it. And in that

process, I find a complete absence of any suggestion that Wandsworth had addressed the

Appellant’s Article 8 rights.

99. As I listened to the excellent argument at the substantive hearing it became more and more clear to

me that our initial concern had been justified. Wandsworth disavowed any suggestion that

financial considerations had dictated its decision, and in those circumstances the fact that Mrs

Goldsmith chose to live in St Mary’s Court surely placed a duty on the decision-maker (whoever

that was) to balance the information contained in the community care assessment report and in her

daughter’s representations against the doctor’s assessment that she had level 2 nursing needs, and

to see whether a viable solution could be found of a reasonable kind which would enable her to

continue to live in the place where she was so happy. This is what respect for a person’s home is

all about, and Wandsworth had to show that its decision to move her was a proportionate response

in all the circumstances.

6. Finally there has been consideration as to whether these proceedings are an abuse of

process. Sedley LJ expounded the private law duty in para 22 of Turner and Milsom thus:

22. It would in our judgment require at lowest evidence of a real risk that

relocation was to be undertaken in a way injurious to the particular patient’s

health to trigger the supervisory jurisdiction of the High Court over the

conduct of local government. Neither the material relied on by Ms Hossack

nor the research relied on by Professor Katona establishes this in Mrs

Milsom’s or any other of the cases before us. Exactly the same is the case, as

this court has pointed out on an earlier occasion, if it is recognised that the

duty owed by the local authorities to these patients is not a public law duty at

all but the common law duty of care – a question of private law, but one which

introduces a standard of care entirely consonant with the Art 2 obligation.

7. This Court is not, on this extreme emergency application, being asked to take any

irrevocable steps. Merely to preserve the status quo and prevent the irrevocable closure of

Bowles Lodge and permanent redeployment of familiar staff until further consideration can

be given in open court. Anne Tidmarsh’s exhibit of the decision page 9.20 shows that the

respondent does not intend to close Bowles Lodge until January 2012 and on the basis that

there will be no closure before alternative services are in place.

Dated this 24th day of November 2011.