R (on the application of Goldsmith) v. London Borough of Wandsworth

[2004] EWCA Div 1170
Download Judgment: English
Country: United Kingdom
Region: Europe
Year: 2004
Court: Court of Appeal, Civil Division
Health Topics: Aging, Hospitals
Human Rights: Right to privacy
Tags: Aged persons, Elderly, Health facilities, Home care, Long-term care, Nursing home, Older persons, Senior citizens

A local authority decided that an elderly woman, G, who had lived happily in residential care accommodation since 1996, should be moved to a nursing home. G applied to get the decision quashed, but this was refused. This case concerned her appeal of the refusal to quash the local authority’s decision.

When G was moved to Mary Court in 1996, she was assured that it would be her home for life unless her health deteriorated to such an extent that specialist nursing care was required. When G had a serious fall, the local authority referred the case to the Local Continuing Care Panel (LCCP), a joint health and social services panel, for its consideration. L, G’s daughter, was not allowed to attend the panel’s meeting as it claimed to be only considering “clinical evidence”. The panel recommended G be moved to a nursing home. L challenged this decision. Later, a social work team manager from the local authority undertook a separate assessment which concluded that G was well enough to stay at her residential care home.  The local authority then instructed a doctor, who confirmed without seeing her or any more recent reports suggesting otherwise, that G needed nursing care and should be moved. L was not informed of the referral to the doctor or involved in his decision making. A few weeks later a meeting was convened involving L, the doctor and the local authority, which reconfirmed its decision. G contended that the local authority’s decision making process was defective and involved a failure to apply its own policy.

The court held that when deciding whether a resident in its care needed to be placed in a nursing home, a local authority was under a duty to take a rounded decision, which took into account all relevant factors, rather than treat a doctor's views on the resident's nursing needs as determinative. The local authority had not done this, and the judge therefore held that its decision making process was sufficiently defective to invalidate its decision. The local authority had based its decision that G should be put in a nursing home on the determination of the panel to which it had referred the case and the apparent confirmation of that assessment by a doctor. But the panel's recommendation was flawed because, in breach of the local guidance, it kept no written record of its discussions or conclusions. Moreover, it had made its decision without having before it the community care assessment, which was carried out afterwards and contradicted its view – this was a key failing in the judge’s eyes as it was a very important report which assessed the G’s health and risks in full partnership with G, her caretakers and her relatives. The court held that the panel should have allowed L to attend the meeting, at which not just "clinical" issues were discussed.

The Court found that the panel had received defective advice because the doctor had not been asked to provide an independent second opinion, but had instead been asked to confirm the panel's decision. The doctor undertook a very limited role of reviewing the panel's assessment. According to the court, the doctor's decision could only be one factor in, and not determinative of, the local authority's decision. The local authority's decision was made without full and proper consideration of all the implications, and the process was held to be “seriously defective throughout.”

“… what was the membership of the LCCP? And what were its specific terms of reference…? …[W]e have no written record of its discussions or its conclusions. I have to say that, quite apart from it being a plain breach of the local guidance … I find it both unacceptable and extraordinary that such a body does not keep minutes of its meetings, or produce reasons or any other form of record of its discussions and recommendations.” Para. 68.

“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.” Para. 86.

“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.” Para. 87.

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