Neutral Citation Number: [2009] EWCA Civ 1290
Case Nos: 1. C1/2009/2330
2. C1/2009/2336
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEALS FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION, ADMINISTRATIVE COURT
No 1. MR JUSTICE SALES CO/12356/2008
No 2. HH JUDGE GRENFELL CO/2069/2009
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 27/11/2009
Before :

LORD JUSTICE SEDLEY
and
LORD JUSTICE TOULSON

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Between :

	No 1. R (EMILY TURNER AND OTHERS)	Appellant	
	- and -		
	SOUTHAMPTON CITY COUNCIL

No 2. R (HILDA MILSOM)
-and-
HULL CITY COUNCIL	Respondent

Appellant

Respondent	

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Ms Yvonne Hossack (instructed by Hossacks Solicitors) for both Appellants
Mr Akhlaq Choudhury (instructed by Southampton City Council) for the first Respondent
Mr Adrian Berry (instructed by Hull City Council) for the second Respondent

Hearing date: Thursday 5 November 2009
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Judgment

Lord Justice Sedley : 

The judgment which follows is the judgment of the court.
1.	These are two applications by separate parties represented by the same solicitor, Ms Hossack.  Both applications are brought in respect of local authority decisions to close care homes; in both cases, applications to the Administrative Court for judicial review have been refused.
2.	Ms Hossack seeks permission to appeal in each case on the ground that her clients’ Article 2 rights are engaged and incipiently or potentially violated by the decisions to close the care homes.
  
The Southampton care homes
3.	Emily Turner, Leslie Proctor and Ivy May Blake are residents of two residential care homes, Whitehaven Lodge and Birch Lawn, owned and operated by Southampton City Council (“SCC”) pursuant to its functions under the National Assistance Act 1948 and the NHS & Community Care Act 1990.
4.	On 27 October 2008 a report was placed before SCC’s Cabinet recommending that the two homes be closed.  The reasons given for closure included the following:
4.1.	The proposal was in line with the reduction in demand for residential care provision by 20% between 2002 and 2008.
4.2.	The unit cost of some of the in-house provision was not favourably comparable to that available for purchase from the independent sector.
4.3.	Significant capital investment would be required to bring some of the homes up to a suitable standard.
4.4.	Research had demonstrated that independent providers would not be prepared to invest in, or run, the homes as an alternative to retaining the provision in-house.
4.5.	Reinvestment of capital achieved by releasing site values could bring the remaining homes to a standard that increases quality and improves the attractiveness of such provision to individual purchasers using individual budgets, and would make the option of outsourcing specific provision more viable.
4.6.	More economic alternatives to some of SCC’s homes were available within the independent sector.
5.	The decision was considered and ratified by SCC’s Overview and Scrutiny Panel on 14 November 2008.  Judicial review proceedings were commenced on 22 December 2008, which resulted in a further period of consultation and investigation, the proceedings being meanwhile stayed.  A further report (“the Report”) was put before the SCC Cabinet on 1 June 2009 recommending the closure of the two care homes.  On the basis of that report it was again decided to close the two care homes.
6.	The Report included the results of an audit of the health and welfare of all the residents living in the two homes, carried out by SCC, in order to identify whether there were any particularly pressing health risks that needed to be taken into account.  The audit was reviewed by a geriatrician and a physician.  No particularly pressing risks were identified and a number of practical steps which would alleviate potential risks to residents were identified (§17).
7.	The application for Judicial Review was subsequently renewed. It was refused by Sales J on 22 October 2009.

The Hull care home
8.	Hilda Milsom is one of nine residents at Rokeby House in Hull, a care home for elderly people owned and managed by Hull City Council (“HCC”).
9.	A decision was made on 22 October 2007 by HCC’s Cabinet to cease to provide residential care at Rokeby House.  Judicial review proceedings were issued on 29 November 2007 but were settled by a consent order dated 14 April 2008.  That order declared that the decision was lawful. It also recited assurances given by HCC that individual assessments of need would be carried out before moving any individual resident and that the Head of Community Care at HCC would report to the Cabinet before the closure of Rokeby House was implemented “summarising the assessment process and highlighting any significant risks”.
10.	The decision was re-visited and confirmed on two subsequent occasions, 22 September 2008 and 30 July 2009.  On 22 September 2008 HCC had before it the report of Ms Angela Dunn, the Head of Community Care, as anticipated by the consent order.  In her report, Ms Dunn commented:
“There are always risks to the mental and physical health of older people (especially those with dementia) when they move from one form of accommodation to another; indeed these risks have been well evidenced.  There is evidence that poorly handled transfers can result in distress, injury and also a significant increase in deaths.  There is also evidence that well managed transfers, even of highly vulnerable residents, can be successful, so that there is little or no distress or injury and no increase in deaths at all: however, it is always possible that despite a careful assessment a transferred resident will in the event fare badly.  As an authority we have researched the evidence and developed a best practice risk management process that is designed to ensure that any risks in particular to the health or life of every individual are very carefully assessed and that mitigates against any identified risks and promotes a seamless transition of care, including careful monitoring and evaluation in the period after a transfer has taken place.”
11.	Proceedings were issued for a second time on 3 March 2009. Permission to apply for judicial review refused by HH Judge Grenfell sitting as a judge of the Administrative Court on 6 October 2009.

Grounds of Appeal
12.	Ms Hossack has submitted skeleton arguments in both cases, developing the arguments advanced on the applications for permission to apply for judicial review.  In her oral application to this court, she concentrated on the Article 2 argument, submitting that the decisions of both HCC and SCC amounted to violations of the Claimants’ Article 2 rights.  
13.	Strasbourg jurisprudence has established that Article 2 not only creates a negative obligation not to take the life of another person but imposes on contracting states a positive obligation to take appropriate steps towards the prevention of loss of life: Osman v UK (1998) 29 EHRR 245, at §115.  The test to be applied by the courts is put in this way at §116:
“Where there is an allegation that the authorities have violated their positive obligation to protect the right to life … it must be established to [the court’s] satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual … and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.  The court does not accept the Government’s view that the failure to perceive the risk to life in the circumstances known at the time or to take preventive measures to avoid that risk must be tantamount to gross negligence or wilful disregard of the duty to protect life.  Such a rigid standard must be considered to be incompatible with the requirements of Article 1 of the Convention and the obligations of contracting states under that article to secure the practical and effective protection of the rights and freedoms laid down therein, including Article 2.  For the court, and having regard to the nature of the right protected by Article 2, a right fundamental in the scheme of the Convention, it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge.”
14.	In Savage v South Essex Partnership NHS Foundation Trust [2007] EWCA Civ 1375 (upheld on appeal, [2008] UKHL 74) this Court had to consider whether the test as formulated in Osman applied to a case in which a patient detained in a hospital pursuant to s.3 of the Mental Health Act 1983 had left the hospital and committed suicide.  It was held that the principles in Osman did apply, so that it was not necessary for the appellant to establish either gross negligence or anything more serious (§29). 
15.	Ms Hossack accepted that both local authorities would take all reasonable steps to obviate or reduce the potential detrimental effects of the relocation on the residents’ health.  However, she submitted, there remained a risk that her clients’ deaths would be accelerated by reason of the relocation. This, she submitted, was sufficient to put the state in incipient breach of Art. 2 and to oblige or permit the court to intervene to prevent it.

The medical evidence  
16.	The Appellants relied on the evidence of Professor Cornelius Katona, a well-known consultant in the psychiatry of old age.  In a report dated 20 March 2009, Professor Katona gave this prognosis for Mrs Milsom in the event of relocation:
“Despite extensive research in the area there is no conclusive evidence that, overall, mortality is increased if people in residential care are transferred (Castle 2001).  There is however evidence that some people are at particular risk (Castle 2001) and that mortality is significantly increased in such individuals.  Risk factors cited by Castle (2001) which are positive in Mrs Milsom’s case include
Confusion (though in her case this is only mild)		
Depression (though this is not a currently active problem)
Age (she is old even in the context of care home residents)
Immobility (though she has been able largely to regain her mobility since moving to Rokeby)	
In the light of this I would conclude that on the balance of probabilities Mrs Milsom’s already short expectancy is likely to be reduced to a significant degree if she were forced to move from Rokeby.”
17.	A similar prognosis was given in respect of Emily Turner, again in a report by Professor Katona:
“… on the balance of probabilities Mrs Turner’s already short life expectancy is likely to be reduced slightly but significantly if she is moved from Birch Lawn.  The research summarised by Castle (2001) suggests that this risk is likely to be mitigated somewhat by preparation and if she were moved together with some of the staff members who have become familiar to her.  Such preparation is regarded as good practice by most Councils (Williams and Netten 2003).”
18.	On the level of risk for Leslie Proctor, Professor Katona wrote that in the light of his potential depression, age and impaired mobility Mr Proctor’s short life expectancy was likely to be reduced significantly on relocation.
19.	Like most experts, Professor Katona has been reliant in all his reports on research conducted by others. His single cited source for the present reports is the research published by Nicholas G Castle in 2001 in an article entitled “Relocation of the Elderly: Medical Care Research and Review”.  The article is itself a review of 78 studies of aspects of the relocation of the elderly. It arrives at the following conclusion:
“In summary, we show that trends in the current health care marketplace may be precipitating relocation of the elderly.  The potential negative and positive outcomes of relocation investigated include changes in mortality rates, morbidity, and psychological and social changes.  In this review, we found few consistent negative or positive outcomes resulting from relocation; indeed, the majority of studies we reviewed did not identify any significant resident outcomes as a result of relocation.  However, it should also be noted that we also show that many relocation studies have analytic limitations.  By combining this prior literature in an analytic model, we help show some opportunities for future research in the relocation of the elderly.”
More immediately, the section on “Mortality” concludes:
“Only two empirical studies have investigated whether residential relocation is associated with an increase in mortality. No increase in mortality post-relocation was observed in either of these studies, but clearly we should be cautious in drawing any conclusions from only two studies.”
20.	In a field of research in which it is not possible to conduct experiments, such indeterminacy is unsurprising. Castle’s data do of course include studies which suggest that poorly handled relocations can cause stress and anxiety, which in turn can adversely affect the life expectancy of the more vulnerable. Both local authorities have throughout been well aware of this – one wonders indeed whether it requires research to establish it - and have been advised by specialists about ways of preventing it.
21.	Professor Katona having identified the research on which he founds his professional opinion, he has fulfilled his obligation to the court. It is then for the court to consider whether his sources justify his conclusions. These are guardedly and in large part speculatively expressed. Thus, while Professor Katona concludes that on the balance of probabilities Mrs Milsom’s life expectancy will be reduced by relocation “to a significant degree”, the Castle survey on which he relies confirms only that relocation may have that effect and (at pp.325-327) that further research is desirable. 
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.
23.	In the Hull case, the court also had before it the evidence of two other medical consultants.  Dr T Hussain, a local consultant psychiatrist specialising in the care of the elderly and responsible for the care of a number of the Rokeby House residents, commented in a report dated 17 November 2008:
“In my opinion, any environmental change and alteration of routine for an elderly, mentally ill person, which the proposed transfer will inevitably cause, is likely to result in short-term disorientation and confusion but longer term effects on death or survival are difficult to comment upon or quantify in percentage terms.  This is because there are other operative factors such as the individual’s physical health, psychological state, premorbid personality and ability to cope with change.
[…]
I have noted that the care plan includes arrangements for appropriate (to the resident’s needs) accommodation, environment, personal care, nutrition, mobility, continence / incontinence, skin and sensory care and family contact.  These should minimise, but not eliminate, all likely risks.”
24.	An independent expert, Dr Lennon, provided a report, dated 11 August 2009, in which he advised that Mrs Milsom could safely be moved from Rokeby House provided that the local procedures were strictly followed, that she received at least as good care in her new home and that the other support available to her continued.  In relation to each of residents reviewed by him, he advised that relocation could successfully take place, as long as precautionary measures were followed.

25.	In a letter to Ms Hossack dated 17 August 2009 Professor Katona wrote that “there is very little disagreement overall between Dr Lennon’s observations and my own”.  In an email to Ms Hossack dated 3 November 2009 Professor Katona clarified his position: “Optimal procedures will substantially reduce but cannot eliminate risk – some people are nonetheless likely to die prematurely  … ; [this risk] cannot always be reduced to ‘very low indeed’ though in most cases it can probably be reduced to ‘low’”. This comment was later amplified: “The main point of disagreement between us was the extent to which taking care to reduce risk would be successful”.     
26.	Counsel for the two respondent councils have submitted skeleton arguments and made brief oral submissions.  The court was reminded that HCC’s position throughout has been that it would not require any resident to leave Rokeby House if that would put him or her at a risk of death or serious injury to health that is more than very low indeed.  Likewise, counsel for SCC drew to the court’s attention SCC’s position in this respect: an individual assessment of each resident will be undertaken prior to any move to identify the particular risk faced by that resident. It was accepted that if a real and immediate risk were identified at that stage, SCC would be bound by s.6 of the Human Rights Act 1998 to act in a manner compatible with Articles 2, 3 and 8.
27.	The test of a “real and immediate risk” is “one that is not readily satisfied: in other words the threshold is high”: In re Officer L [2007] UKHL 36, per Lord Carswell at §20.  The evidence before this Court falls far short of this threshold.
28.	This is not the first time that the courts have considered whether a decision to close a care home breaches a public authority’s positive obligations under Article 2.  In R (on the application of Wilson) v Coventry City Council [2008] EWHC 2300 HHJ Pelling QC reviewed the case law in this area and assessed its application to circumstances similar to those before this Court: §31- 36.  His review and conclusions, which have not been directly challenged before us, ought to have put those advising the present claimants on clear notice that their case faced formidable difficulties of principle, and that to involve them in litigation might contribute to the stress of relocation.
29.	These are the principal reasons why permission to appeal was refused in both cases.
30.	The court wishes in addition to express its concern at the recent proliferation of publicly funded litigation designed to prevent the closure of local authority care homes or to render implementation of closure impracticable. Its continuance appears to pay no regard to the reasons why each previous attempt has failed. We asked Ms Hossack how many of these applications she had been responsible for making and how many, if any, had succeeded. Her answer did not correspond with the court’s own information, and we considered it inappropriate to pursue the matter in open court without notice. We therefore express no view, but we direct that this judgment be communicated to the Legal Services Commission.
31.	On the present applications Ms Hossack made it part of her written and oral submissions that this court, giving judgment in the recent case of R (Watts) v Wolverhampton City Council [2009] EWCA Civ 1168, had said that “if there had been a risk to life the result would have been very different”. In fact, as the transcript confirms, the court said that it would be prepared to intervene “if there were any firm evidence that moving [the resident] was going to shorten her life”. That quite different state of affairs did not obtain there and does not obtain here.
32.	Beyond this there has to be concern at the drain on public funds on both sides. It may be that the litigation, at least in its early phase, concentrated the minds of local authorities on the nature and extent of their duties towards care home residents who had to be relocated; but there has been no evidence before the courts in recent applications of which we have knowledge that these duties are being either ignored or violated. Nothing is wholly without risk, but so long as councils do the best that can professionally be done to minimise identifiable risks to frail and elderly people in their care, the law has no immediate role to play.