When Mark Neary asked the London Borough of Hillingdon to look after his son for three days as he recovered from a nasty bout of 'flu he had little idea that the next 12 months of his life would be consumed by bureaucratic and legal nightmares that nearly cost him his family.
Steven, a 21-year-old autistic man with severe learning disabilities, is now living back home with his father in Uxbridge. Yet for almost a year he was held against his parent's will in a bitter dispute with care workers.
Yesterday, a judge in the Court of Protection ruled that Hillingdon Council had acted unlawfully, in a case which has far-reaching implications for local authorities.
In a north London café, a few days after the judge had adjourned the case for reserved judgment, Mr Neary is exhausted. But he becomes animated when he is asked whether he ever thought about giving up. "Never," he says. "I always knew that home was the best place for him. I know that's not objective because I'm his dad. But deep down I never wobbled and thought: 'Have they got a point here?' And I think what came out in court was, no, they didn't have a point."
The dispute broke out in December 2009. Just before New Year's Eve, Mr Neary, who has separated from Steven's mother, was struck down with 'flu and asked Hillingdon to take care of Steven for three days while he recovered. The first night in respite care did not go well and the following day Steven was moved to a council-run unit specialising in accommodating people with behavioural problems. Social workers persuaded Mr Neary to allow his son to stay on for another couple of weeks. But weeks turned into months as those looking after Steven decided his behaviour had become so challenging that he should not be in his father's care. It wasn't until December last year – when a judge finally ruled that home was indeed the best place for him – that Steven returned to his father.
"I kept trying to tell them that the reason he was acting up was because he was away from home but they seemed to have made up their minds," recalls Mr Neary.
In April 2010, Hillingdon began moves to permanently remove Steven from his father's care by applying for a Deprivation of Liberty order [DOL] – a little-known tool which primary care trusts and hospitals can use to detain a person for their own safety, without needing to seek permission from the courts.
Under the Mental Capacity Act, DOLs can be obtained to protect a vulnerable person from harm but only if the order is in that person's best interests, is proportionate and is sought once all the other less restrictive options have been exhausted. Every two months these orders have to be renewed and each time a "best interest assessor" – a technically independent specialist who is appointed by the council – is engaged to decide whether the subject would be better off in care.
In his judgment yesterday Mr Justice Peter Jackson found that Hillingdon had used the DOLs unlawfully and that their policy was "to keep [Mark Neary] in the dark". The lowest point for Mr Neary came in June when he received a letter from Hillingdon informing him that it was planning to remove Steven from his care permanently. Unsure of his rights or what to do next he turned to Facebook and began an online campaign called "Get Steven Home".
"I had no idea where it was going to go but the purpose was to find somebody who had been through this," he says. "It was a lifeline. I started it on a Saturday and by the Wednesday there were 2,500 members." A handful of bloggers who specialise in mental capacity issues and the Court of Protection also picked up on the story and began informing Mr Neary of his rights. It was the kind of information that Hillingdon had failed to provide him.
Mr Neary was entitled to non-means tested legal aid to take the case to the Court of Protection if no resolution could be found. But no one told him. Eventually a PhD student in Exeter put Mr Neary in contact with Chris Cuddihee, from Conroy's Solicitors, one of the few firms that specialise in Court of Protection issues. "Three weeks later we were in court and Steven was back home," Mr Neary says.
While many relatives of vulnerable people have complained that the Court of Protection can be insensitive, bureaucratic, slow and secretive, Mr Neary has nothing but praise for the judiciary. But he has little sympathy for Hillingdon, whom he knows he must continue to work with for Steven's sake. "I don't think they really understood Steven," he says, "And I think they saw me as a fly in the ointment. Their whole approach was needlessly insensitive and combative."
As an example he cites a briefing note that was sent out to reporters shortly before the five-day hearing at the Court of Protection began two weeks ago. The note contained private details about Steven's health and behaviour – information the media could never have published. In a damning critique, Justice Jackson described the note as "a sorry document, full of contentious and inaccurate information, [that created] a particularly unfair and negative picture of Steven and his behaviour".
Hillingdon claimed it was simply trying to present "its side of the story". But Mr Neary saw it as an attempt to spin the media coverage. "That press release from Hillingdon was vile," he says. "I was shocked by their tactics."
Since coming home Steven has settled back in well but his stay in the care home has clearly affected him.
His father says: "One of the first things he says as we run through his programme for the day is 'We're not going to [the care home] today are we?' and I have to go, 'No we're coming back to Uxbridge house. The care home is all finished.'"Reuse content