CCGs face a difficult task when addressing the legal and
practical considerations in re-housing individuals with challenging
behaviour who fall under the NHS Continuing Healthcare framework in
the community. These considerations include the complex interchange
between numerous legal frameworks along with considering how best
to meet the therapeutic needs of the individual. These
circumstances will become increasingly widespread following a
number of high profile care home closures requiring individuals to
be relocated; often into supported living accommodation.
This article sets the legal aspects for CCGs to reflect on in
Does the individual's challenging behaviour amount to a
"statutory nuisance" under the Environmental Protection Act
- A typical example of this is the level of noise being emitted
from the individual's property and how this may impact on other
residents in the local community. What amounts to a statutory
nuisance may depend on an assessment by the Local Authority's
Environmental Health Officer.
- Factors relevant to the assessment will include – the location;
the time of day; the frequency; the duration; the intensity; and
the number of people affected.
- If it is found that the individual's behaviour amounts to a
statutory nuisance then an abatement notice can be served on the
individual. Failure to comply with the notice is a criminal
- If a complaint is made to the Local Authority the CCG should
liaise closely with the Local Authority to ascertain whether
reasonable steps can be taken to prevent or reduce the noise or
impact of the individual's behaviour. This may include greater
support for the individual such as counselling or sound proofing
the individual's home by the landlord or Local Authority.
Capacity and Best Interests
Does the individual have capacity to make decisions in relation
to where they live, the care and treatment that they receive and
regarding their finances and affairs?
- If there are concerns that an individual may lack capacity,
then a formal capacity assessment should be conducted in accordance
with the Mental Capacity Act 2005 framework.
- If the individual is assessed to lack capacity, then any
decision regarding these aspects must be taken in his/her best
- The CCG must follow the best interests framework set out in the
Mental Capacity Act taking into account all the circumstances in
making the decision as to whether or not the individual should
remain in their current placement or be placed elsewhere.
- Key considerations will include – the risk of harassment from
discontented neighbours if he / she remains or is moved to a new
locality; financial / practical implications by ending the tenancy;
the risk of the individual 's health deteriorating; and the
likelihood that a similar property can be identified and adapted
appropriately to meet the individual 's needs.
- If there is a dispute as to what is in the individual's best
interests, then an application may need to be made to the Court of
Protection to resolve the dispute.
Court of Protection Guidance on Tenancy Agreements
- Although the Mental Capacity Act 2005 enables the making of
certain decisions without the need to obtain any formal authority
to act, it does not extend to signing legal documents, such as
- Someone can only sign a tenancy agreement on behalf of the
person who lacks capacity if they are: an Attorney under a
registered Lasting Power of Attorney (LPA) or Enduring Power of
Attorney (EPA); a Deputy appointed by the Court of Protection; or
someone else authorised to sign by the Court of Protection.
- If the individual has a Deputy or Attorney authorised to make
these decisions on their behalf, then they can terminate or enter
into a tenancy agreement without further authorisation from the
court. However, any such decision to terminate and/or enter into a
new tenancy agreement must be in that person's best interests.
- As above, if there is a dispute regarding what is in the
patient's best interests then an application to the Court of
Protection may need to be made.
- The CCG is responsible for commissioning a safe and viable
placement for the individual that meets their assessed needs.
Therefore, the CCG must be satisfied that the impact of any dispute
about the individual's behaviour is not prejudicial to the
placement. If the CCG is not satisfied it must give detailed
consideration to whether it would be in the individual's best
interests to be moved to an alternative placement.
Data Protection Act
- CCGs must also exercise extreme caution when considering
whether information about the individual and his/her medical
condition can be shared with other stakeholders or third
- Such information should only be processed in accordance with
the strict legal framework set out in the Data Protection Act 1998.
Failure to do so is an offence.
- The CCG should be investigating why the individual is
exhibiting this challenging behaviour. For example, is this related
to pain, anxiety, frustration or general behavioural issues?
Perhaps the behaviour denotes a problem that the individual is not
able to communicate in other ways.
- Can anything be done to assist the individual therapeutically
in managing/reducing their behaviour? For example, what
de-escalation techniques are being used and to what success?
CCGs have a number of difficult considerations to take into
account when deciding on the safety and viability of a community
placement. The complexity is enhanced when considering the
placement of individuals with challenging behaviour as often their
behaviour may prejudice the placement. The CCG must consider each
individual on their own merits and execute a plan centred around
that individual's needs.
Please contact Will Pickles or Jane Bennett for further