Vulnerability, medical evidence & Now Medical

Thomas v Lambeth LBC, County Court at Central London, 16 March 2017

This is a s.204 appeal in the County Court of a vulnerability decision by Lambeth. A copy of the transcript of judgment is here. Of particular interest is that the judgment concerns and indeed turns on Now Medical reports on the homeless applicant and the use made of them by LB Lambeth on s.184 decision and on s.202 review.

Ms T had a history ‘of depression which had on occasion manifested itself in suicidal thoughts and deliberate self-harm who at the material time was on an anti-depressant Sertraline. The Appellant was under the care of her GP regarding her condition.’

In support of her homeless application, her GP wrote:

It is clear that she is a vulnerable young woman, who has been a victim of personalised aggression, which has inevitably exacerbated likely predispositions to depression and anxiety. She has attended our Surgery this week with suicidal thoughts and a ramping up of her anxiety. There are prominent problems for her in getting out into any social context, with signs of hyper alertness, hyper arousal and exaggerated fear of people, whether strange or familiar. As a consequence, her coping strategies are significantly compromised at present and she will not cope with being homeless. There is a very high likelihood of a further deterioration in her mental health due to homelessness.

And then in bold:

Events in her history inevitably mean that both housing quality and a specific location are more than usually relevant in her symptoms and also please note her risk of harm.

Lambeth requested a report from Now Medical, the first of a number of (very similar) ‘brief letter type reports’.

Now Medical said:

The issues are DEPRESSION. The Applicant has a history of depression and I note has a history of suicidal thoughts and acts in deliberate self-harm. She has been treated with Sertraline 50mg, the standard anti-depressant in low dose, and has been referred for counselling which would be considered standard treatment. There is nothing to suggest that she has required urgent psychiatric intervention and there is no evidence in this case of a severe or enduring underlying mental illness such that would significantly affect her cognition or rational thought. Whilst I note that she has had suicidal thoughts, there is no evidence of significant concerns regarding intent in this case. There are no other relevant medical issues.”

And then in summary:

“For the reasons given above, I do not think the medical issue rendered the Applicant significantly more vulnerable than an ordinary person and I make no grounds for recommendations on specific medical grounds.”

This is language and a way of expressing a conclusion that will not surprise anyone who has encountered Now Medical reports.

The court was not impressed by this, making two immediate points.

First, it was not for Now Medical to reach any conclusion about whether Ms T was more vulnerable than the ordinary person. That was a matter for the council decision maker.

Second, it was not helpful for Now Medical to identify problems that Ms T was not asserted to be suffering from (here a condition requiring urgent psychiatric intervention, and/or a condition which would impair her capacity) and then to reach a conclusion based on the absence of those conditions.

There is a sliding scale as to the ways in which potential depression might impact a person. Obviously, at one end of that scale are circumstances where a person will be significantly impaired in terms of their cognition or rational thought or have psychotic episodes. But just because somebody is not at the most serious end of the scale, does not mean that they may not be vulnerable as a result of how their particular condition impacts on them in particular circumstances.

Now Medical’s approach to reaching a conclusion was flawed as a means of providing information that would help the decision maker.

None of these reports from Now Medical address the particularity of the Appellant’s circumstances. Their logic is (a) to refer to what the Appellant’s doctors say about her depression and suicidal ideation; (b) to say that what the Appellant is suffering from is not serious psychotic episodes or inability to have rational or cogent thought; (c) to conclude that because the Appellant is not within (b) that she is not more vulnerable than an ordinary person.

It is unfortunate and I think made the job of the Reviewing Officer much more difficult, that the Reviewing Officer was not given the benefit of a medical opinion which actually addressed the particular circumstances and particular consequences to the Appellant of her condition. It might have helped had someone from Now Medical taken the time to see the Appellant or indeed considered her medical records.

All of the Now Medical reports in this matter suffered from the same flaws and faults. There was no medical evidence – apart from from Ms T’s doctors – which addressed her actual circumstances to provide helpful information.

The faults of the Now Medical reports were reflected in the review decision.

The gist of the reasoning for upholding the decision is that the information provided by the Appellant’s own doctors do not show that she is suffering from substantial cognitive impairment or a psychotic condition and that accordingly, she is not vulnerable. I consider that that approach, which is formed directly from the Now Medical opinions, is fundamentally flawed. And it is flawed because it fails to address directly the Appellant’s medical evidence which was specifically, that (a) she had depression, (b) the consequences of that depression would be exacerbated by the threat of homelessness and (c) those consequences were likely to include an increased risk of suicide and/or self-harm.

The review decision was accordingly set aside.

Comment

This is a county court appeal, and so not a precedent, but the logic of the decision is clear. The approach and conclusions of Now Medical reports are, shall we say, familiar in form and wording, suggesting that the criticisms leveled in this judgment at both the reports and their inadequacy for aiding a council decision maker in reaching a post-Hotak decision on the specific vulnerability of the applicant will have wider purchase.

It is long been a complaint of applicants’ representatives that Now Medical have presumed to made decisions on vulnerability that it was never their place to make. It is good to see at least some judicial agreement with that view.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Homeless, Housing law - All.

9 Comments

  1. I’ve always thought that the Hotak ‘test’ for vulnerability actually raises the threshold of what’s in the Act. S189 refers merely to being vulnerable. I’m not sure why that’s been ramped up to significantly more vulnerable than ordinarily vulnerable.

    • That was the argument we advanced as intervenor – that no comparator was needed. (Though the Act refers to ‘vulnerable by reason of…’).

      The discussion now – and being heard by the court of appeal – is the meaning of ‘significantly’ – See Baroness Hale’s judgment in Hotak for a differently worded view.

      However, Hotak did not raise the threshold at all. The Pereira test, as developed in case law, was a far higher threshold, as the comparator was ‘an ordinary homeless person’. Hotak makes clear that the ‘ordinary person’ is healthy and robust.

  2. A lot of local authorities I speak to say that they no longer use Now Medical, certainly as a matter of course. No doubt this is because of the issues highlighted in this case about the content and usefulness of the reports, in the context of the person-centred approach required post-Hotak.

    I’m surprised NM haven’t sought to move away from their ‘desktop review’ approach.

    Incidentally, isn’t the Court of Appeal case on vulnerability due to be heard around now?

  3. Mark, the Court of Appeal are considering the definition of ‘significantly’ on Monday and Tuesday next week – so watch this space. Interesting view from the bench here.

  4. I agree with the point on the Pereira test but the point I was making was that I’m now having arguments in s202 reviews with local LAs about whether a homeless applicant is significantly more vulnerable than ordinarily vulnerable when they quote that passage from Hotak. The discussion used to be is an applicant vulnerable or not? not how vulnerable?

    • It was always previously are they ‘more vulnerable than an ordinary homeless person’ – with the ordinary homeless person usually taken as being a depressed drug user…

  5. I know (probably unnecessarily) I’m splitting hairs but although Hotak helpfully cleared up the issue of the correct comparator from ‘ an ordinary homeless person’ to ‘ an ordinary person if made homeless’ I still feel that the degree of measure of vulnerability against the revised comparator has been increased over and above what has been legislated in s189.

    • There is a perfectly valid argument to say that it is not how the legislation should be interpreted. We made that argument.

      However, it is not the case that it is ‘ an ‘increase’, as the legislation has never been interpreted in the way you suggest.

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