Putting the cart before the horse: Resource Allocation Systems and community care

The Journal of Social Welfare and Family Law has published a paper on Resource Allocation Systems (RASs) by Luke Clements and myself.  A pre-publication version can be downloaded from here (doc).  The paper is based on a series of requests made under the Freedom of Information Act about how local authorities developed their RASs, and how they worked.  We consider issues of transparency, which I have discussed before on this blog, but also look at issues like how RASs were developed, how they take into account informal support, whether RAS questionnaires might miss some eligible needs, whether RASs will lead to a more equitable distribution of resources for different groups, and the accuracy of RASs.  Here are the seven conclusions we drew from this research:

1. Obtaining information about the inner workings of RASs can be challenging, with some local authorities even refusing to disclose details following requests under the FOIA;

2. Once obtained, information about the inner workings of RASs can be extremely complex, reflecting their increasing degree of sophistication, but making it hard to extract any clear criteria for resource allocation in order to understand underpinning assumptions;

3. Many local authorities are no longer using points-based RASs and report problems with accuracy and complexity – some have resorted to ‘ready reckoners’ instead;

4. RASs differ in how they take into account informal sources of support, with a small number of local authorities appearing not to take this into account at all or doing so in ways which could penalise individuals living with informal carers;

5. There is uncertainty, from an equalities perspective, as to whether RASs should allocate resources differently according to an individuals’ user group, with some local authorities believing that use of a universal RAS is mandated by ‘equalities legislation’ and others taking into account local variations in the unit costs of care for different groups;

6. Even those local authorities using universal RASs may apply it differently for different user groups, with some groups receiving personal budgets of much lower value than that indicated by the RAS;

7. Overall RASs do not accurately predict the value of personal budgets as applied in contemporary local authority social care delivery.

ANOTHER inquiry into legal capacity legislation (this time from Oz...)

Another week, another inquiry into legal capacity legislation...  This month, the UK House of Lords and the Equality and Human Rights Commission have both announced forthcoming inquiries or post-legislative scrutiny into the Mental Capacity Act 2005 and the deprivation of liberty safeguards.  Now the Australian government's Attorney-General Mark Dreyfus QC has announced a 'Consultation on draft terms of reference for ALRC inquiry into equal recognition before the law and legal capacity for people with disability'.    Hat tip to Piers Gooding for flagging this up.  The Australian inquiry will consider:

• Commonwealth laws and legal frameworks that deny or diminish the rights of people with disability to make their own decisions and act on their own behalf, and
• what, if any, changes could be made.

The press release states:

“I want to make sure that existing Commonwealth laws and legal frameworks do not create barriers to people with disability exercising their rights and legal capacity,” Mr Dreyfus said.

“Most of us take for granted the independent decisions we make about our lives. People with disability deserve the same opportunity.

“This inquiry is about maximising choice and autonomy for Australians with disability.”
Minister for Disability Reform Jenny Macklin said that people with disability are entitled to the dignity that comes from being able to make choices over their own lives.

“Ensuring that people with disability have access to the same rights and opportunities as Australians without disability is a hallmark of a just society,” Ms Macklin said.

“As we celebrate the twentieth anniversary of the Disability Discrimination Act, it is fitting that we consider whether our laws are adequately supporting people with disability.

“The announcement of this inquiry coincides with the upcoming launch of DisabilityCare Australia, the national disability insurance scheme, a significant reform that will transform the way people with disability are supported and put choice and control in the hands of people with disability.”

The phrasing of the inquiry suggests that it will look into both legal capacity and access to justice issues, and could potentially be very interesting.

Throw into the mix that the Scottish Law Reform Commission will be publishing their report on the 'Adults with Incapacity' work program next year, the legislative changes afoot in Canada (sorry, no links, but will post when I have some), Ireland and India, and there do seem to be a lot of questions being asked about legal capacity and disability rights at present.  I think that Article 12 of the UN Convention on the Rights of Persons with Disabilities has a significant catalysing role to play in this.  Certainly the discourses of fulfilling people's rights to equal recognition before the law have influenced the ways in which the Australian inquiry and the Indian and Canadian law reforms are being framed (it certainly hasn't influenced the Scottish work program though - which uncritically takes the title 'adults with incapacity', thus accepting at the outset the category of 'incapacity' contested by the UN CRPD).  Since the ruling in Shtukaturov v Russia there have been a steady stream of legal capacity cases before the ECtHR, which although more conservative than the CRPD approach are still pretty challenging for the way we do legal capacity under the Mental Capacity Act 2005 in terms of procedural safeguards and court processes.

It will be interesting to see how far these different inquiries take up the challenge of the CRPD, and how far they are in agreement about their conclusions...  Watch this space!

Equality and Human Rights Commission announce inquiry into the deprivation of liberty safeguards

The Equality and Human Rights Commission have announced that they will be opening an inquiry into the deprivation of liberty safeguards. The announcement is contained within their Corporate Plan for 2013-14 (hat tip to Local Government Lawyer for spotting this), and states:

The Commission is developing proposals for a formal Section 16 Inquiry to examine policy and practice in care homes and hospitals on the deprivation of liberty of people who lack mental capacity, and the effectiveness of the safeguards currently in use. This issue has been explored with various organisations and individuals, including the Care Quality Commission, Court of Protection Users Groups, Mind, Liberty, barristers and leading academics. Stakeholders have identified some significant problems and flaws in the application of the current safeguard provisions. All have stressed the need for systemic change to ensure that the human rights of people in extremely vulnerable situations are effectively protected.

I haven’t seen any further detail on the specifics of this inquiry, but I will keep an eagle eye on their website.

So, now we have a House of Lords ad hoc committee conducting post-legislative scrutiny of the Mental Capacity Act 2005 because of human rights concerns, and the EHRC conducting an inquiry into the deprivation of liberty safeguards. Interesting times.

Your statistical guide to the Mental Capacity Act 2005

Well... I am please to say that I passed my viva last week.  It was rather daunting to be examined by somebody whose work I greatly admire (Prof Genevra Richardson), but a real privilege to be able to talk to her about the Mental Capacity Act 2005, the deprivation of liberty safeguards and - of course - Article 12 CRPD.

Anyway, on reflection I have decided that I probably won't try to turn my thesis into a book.  This is for several reasons - firstly, the case law is already way out of date (thanks to all you enterprising lawyers, vigorously appealing judgments), or shortly to become out of date (I'm talking about you, Cheshire).  Secondly, because I want to build upon some of the ideas and issues in further empirical work.  However, I will probably turn various themes and strands of reasoning into research papers, so watch this space...

Anyway, the long and the short of it is that my lovely statistical data, which I lovingly gathered and harvested from reports and under the Freedom of Information Act 2000, will not see the light of day in any formal publication any time soon.  Yet, I am contacted very frequently by lawyers, researchers and campaigners asking where they can find data on this, that or the other.  So I decided to turn these data into a statistical guide for your use.  Enjoy.

About the Statistical Guide to the Mental Capacity Act 2005

The Mental Capacity Act 2005 (MCA) affects the personal and workings lives of millions of people in England and Wales. The deprivation of liberty safeguards and the Court of Protection, both established by the MCA, are frequently in the news. There are many interesting developments afoot regarding the Act – not least the forthcoming hearing of two key deprivation of liberty safeguards cases by the Supreme Court (Cheshire and P & Q) and the newly announced House of Lords ad hoc committee on the MCA. The MCA is also of growing interest at an international level as Article 12 of the UN Convention on the Rights of Persons with Disabilities (CRPD) – the right to equal recognition before the law – refocuses critical attention on mechanisms which allow a person’s own decisions to be displaced by another’s on grounds of ‘incapacity’.

My doctoral research focused on the MCA in relation to adult social care, and I amassed a large amount of statistical data on the Act, on the deprivation of liberty safeguards and on the Court of protection – from official sources, by using the Freedom of Information Act 2000 (FOIA) or through the generosity of those working in the court service. In this document I have tried to bring together all the data I have, so that others can use it to inform any teaching, research, campaigning, litigation, journalism or policy work in this area. Please feel free to use the data, tables and figures contained here for these purposes, although please be careful to appropriately attribute them (both to myself, and the original source of the data). I would like to take this opportunity to acknowledge and thank the FOIA officers and their colleagues in the Ministry of Justice, the Department of Health, the Office of the Public Guardian, the Crown Prosecution Service, the Court of Protection and the local authorities I contacted, for all their help and hard work.

The overall picture painted by these data is of an Act whose primary mechanisms are informal – the vast majority of decisions are made under the general defence, and so are not picked up by data on the deprivation of liberty safeguards or the Court of Protection. The statistics show that referrals to Independent Mental Capacity Advocates (IMCA) have been lower than expected, and the number of complaints and litigation resulting from IMCA referrals is concerningly low, suggesting they are only infrequently challenging decision makers or assisting P to do so. Use of the deprivation of liberty safeguards has been underwhelming and extremely variable – it appears there is a postcode lottery in the Article 5 protections offered by the safeguards, both in terms of when they are applied, and how effectively people’s rights to advocacy and challenge are upheld. Despite fairly limited, but growing, use of the Court of Protection under the MCA for welfare decisions and the deprivation of liberty safeguards, it is clear from the comments of the judiciary and the Official Solicitor that these cases are causing a significant strain on resources.

The document is divided into three sections: data on the Mental Capacity Act, the deprivation of liberty safeguards and the Court of Protection. Very limited data is available on the use of the ‘general defence’ under the MCA. I have collated some data on the use of welfare benefit appointeeships, Lasting Powers of Attorney, deputyships, Independent Mental Capacity Advocates and prosecutions under s44 MCA. Using the official data on the deprivation of liberty safeguards and data gathered under the FOIA, I have produced tables and figures showing – for the period 2009-2012 –  the number of applications over time, variation in application rates across local authorities (including an appendix showing each local authority’s per capita application rate using population data), some data on third party referrals, Part 8 reviews and applications to the Court of Protection under s21A MCA and s16 MCA. An additional appendix shows the startling variation between local authorities’ use of s39D IMCAs under the deprivation of liberty safeguards. I have also drawn from data published in the two Court of Protection annual reports, the Official Solicitor’s annual reports and a small amount gathered under the FOIA to produce tables and figures on welfare proceedings in the Court. I reproduce some data on applications for permission, which paint a picture of who is using the welfare jurisdiction of the Court of Protection, a figure shows the growing workload of the Official Solicitor and I present some data on Court of Protection visitors.

I am afraid these data have not been peer reviewed, but if you spot any errors I would be grateful if you could bring them to my attention. If there are any data not contained here that you would find useful, please do let me know – it may be that I already hold it. I am afraid that these data focus more on the welfare side of the Mental Capacity Act, as that is what my doctoral research has focused on.

MIND call for evidence on DOLS

If you have experience of Deprivation of Liberty Safeguards, MIND would like to hear from you.

In the autumn, the Supreme Court of England and Wales will be hearing two cases about the Deprivation of Liberty Safeguards (DoLS) under the Mental Capacity Act 2005. The Court will consider what ‘deprivation of liberty’ means in the social care context.

Mind is going to provide independent evidence to the Court on how the DoLS system is working in practice and how it could be made clearer and safer for service users, their families and carers.

Mind are keen to hear from people who have experienced the DoLS system, whether as someone who is or has been under a DoLS, a family member of someone under a DoLS, an advocate working with people who lack capacity, a carer or a health and social care professional.

All the responses that we receive will feed into the evidence that Mind provides to the Supreme Court and will therefore assist the judges in making a decision that respects service users’ needs.

If you’d like to tell us about your experience with DoLS, please complete the short survey.

The survey closes on 6 June 2013.

Membership of House of Lords Ad Hoc Committee on the Mental Capacity Act published

A motion for the members of the House of Lords Ad Hoc Committee on the Mental Capacity Act 2005 has been published today.  The proposed members are:

• Lord Hardie (Chairman)
• Lord Alderdice
• Baroness Andrews
• Baroness Barker
• Baroness Browning
• Lord Faulks
• Baroness Hollins
• Baroness McIntosh of Hudnall
• Lord Patel of Bradford
• Baroness Shephard of Northwold
• Lord Swinfen
• Lord Turnberg

Some of those names will be familiar to those in the mental health world.  Lord Hardie - the Chairperson - is a very senior lawyer.  There are quite a few medical professionals and lawyers. Lord Patel, of course, was until recently the chair of the Mental Health Act Commission.  Baroness Browning was involved with the original Bournewood Case and made several interventions in parliament during the drafting of the DOLS (including asking sensible questions like 'what does deprivation of liberty mean?' and 'do you think we've allocated enough resources to this?').  She was one of the people who called for post-legislative scrutiny of the Mental Capacity Act.  It is a shame that there are no peers with a disability rights background on this Committee, such as Baroness Campbell or Baroness Grey-Thompson, but hopefully the Committee will take an interest in the disability rights debates surrounding the Mental Capacity Act.

Just as a reminder, this is why the Committee were appointed:

A post-legislative scrutiny committee on the Mental Capacity Act 2005

52. The Ministry of Justice published the post-legislative scrutiny memorandum for the Mental Capacity Act 2005 in October 2010.13 Following publication of the post-legislative memorandum the House of Commons Select Committee on Justice held an evidence session with the Public Guardian and the Director of the Royal Courts of Justice Group, and the House of Commons Health Select Committee has similarly heard a limited amount of evidence.

53. The Act provides a legal framework for making decisions on behalf of adults whose mental capacity is impaired. It was substantially amended by the Mental Health Act 2007. The Mental Capacity Bill was subject to pre- legislative scrutiny. A post-legislative review of the Act would not only provide an important opportunity to consider the issues above but it could look at how the pre-legislative scrutiny process influenced the passage of the Bill, whether issues that were raised in pre-legislative scrutiny were ignored and whether any such issues have led to problems since the Act came into force.

54. The Government’s post-legislative memorandum suggested that the legislation was working well other than in a few “small and technical” areas. This view was broadly upheld in 2010 by the Public Guardian’s evidence to the Justice Committee. Since that date concerns have been expressed that the procedural safeguards in the Act may be inadequate to satisfy the requirements of the Human Rights Act 1998. The Mental Capacity Act was amended in the light of the Bournewood judgment which found the UK in breach of Article 5 of the ECHR. The recent findings about the treatment of residents at the Winterbourne View care home, together with a recent Mencap report highlighting deficiencies in the care of mentally disordered patients, suggest that the legislative regime for mentally incapacitated adults would merit scrutiny by a House of Lords post-legislative scrutiny committee. Such scrutiny could include consideration of external oversight of the decisions made on behalf of incapacitated individuals by medical professionals and guidelines on “best interests” decisions, where social workers and others have taken over decision-making in areas such as personal welfare, type of care or financial affairs on someone else’s behalf.

55. We recommend the appointment of an ad hoc post-legislative scrutiny committee to examine the Mental Capacity Act 2005, to report before the end of the 2013–14 Session.

The Committee has powers to appoint special advisors, to send for persons, papers and records, to 'adjourn from place to place' within the UK and take and publish evidence.  It will report by 28th February.

The beauty of BAILII and RSS feeds

If you would like to set up an RSS feed for new cases mentioning particular key terms from BAILII, then check out what BAILII have been developing with this handy guide from iLegal (and ignore what I wrote below).  Using BAILII's own new RSS system, I have set up feeds for all cases from the European Court of Human Rights mentioning legal capacity and guardianship, feeds for all cases from the UK (and other jurisdictions, in case it's mentioned in passing) mentioning the Mental Capacity Act 2005 and all cases from the UK, Ireland, the ECtHR and the EU mentioning the UN Convention on the Rights of Persons with Disabilities.

Ever wished you could have all the published cases about a particular topic or mentioning a particular key term piped directly to you?  Well, wish no longer, because the answer is here!

I am, as many bloggers are, a feed-monkey.  I love RSS feeds, the way they pipe blogs I follow and other feeds directly to my RSS reader, so I don't have to visit each site in turn (I am currently mourning the impending doom of Google Reader, but having a play with Feedly as a replacement).  For some time now I've been thinking, 'wouldn't it be cool if there was a way to set up an alert on BAILII for a particular keyword.  It's really tricky to do though - you can't use Google alerts as BAILII blocks search engines (here's why), and I found having to manually re-check BAILII'S search engine every week or so for new cases rather tiresome.  I dreamed of an RSS feed for ECtHR cases on legal capacity and guardianship, or one for UK cases on the Mental Capacity Act, but the consensus on twitter was that it couldn't be done... Until today, when clever old Judith Townend (of Meeja Law) worked out that you can set up a BAILII search using BAILII's own internal search engine (sorting by date), and then turn that into an RSS feed using Feedity.  It's so easy, you could easily set one up for your key-term tipple of choice.  You could play with setting up alerts for particular citations, judges, statutes... the possibilities are endless.

So without further ado, I present to you (drum roll please) an RSS feed on legal capacity and guardianship cases from the European Court of Human Rights and an RSS feed on all UK court cases mentioning the Mental Capacity Act 2005.  Enjoy.