Holiday reading

I'm drowning under a mountain of introductory chapter drafts, but if you're looking for a good read you couldn't go far wrong with the latest issue of the European Human Rights Law Review.  I do hate recommending paywalled journal articles on this blog, as the frustrations of not being able to read academic papers when I was working in care aren't long behind me, but if you can get your mits on Issue 6 of 2011 there's a lot of interesting reading from a legal capacity and disability rights perspective:

Monitoring detention under the MHA and the MCA

Today the CQC published their latest annual report on the Mental Health Act (MHA). As with their last report, it gives a detailed whole-system analysis of the functioning of the MHA, with particular attention to the experiences of detained patients, and how effectively their rights are being protected. In my (admittedly quite idiosyncratic) view, the CQC’s monitoring of the MHA is one of its greatest strengths. It is no exaggeration to say that its work in the field of detention monitoring for mental health is world leading, and reflects the considerable experience, knowledge and independence of the MHA commissioners at the CQC. I wanted to use this post to explore what exactly makes the CQC so strong in this field, and what we could usefully learn from this to apply to how the deprivation of liberty safeguards (DoLS) under the Mental Capacity Act 2005 (MCA) are monitored. One thing that will, I hope, become clear in this piece is that the CQC face a considerably greater challenge in monitoring the DoLS than the MHA. A lot of the infrastructure that CQC rely upon in their monitoring role simply isn’t there (yet) for DoLS to enable a whole-system analysis. To put this in perspective, the MHA is in its third decade, the DoLS are tottering into their third year, and so things may well change in the future. 

Has the CQC over-promised?

Just a quick post... I've been musing on the late evidence submitted to the Mid Staffordshire Inquiry by CQC whistleblowers Amanda Pollard (a compliance inspector) and Kay Sheldon (a member of CQC's board).  I think Pollard and Sheldon both have to be commended for their bravery; it is not easy speaking out about an organisation you are still involved in.

DoLS: Back to the drawing board?

Is it time to go back to the drawing board with DoLS?  This week the Mental Health Alliance (MHA) published a draft report on the DoLS (pdf) in which they declared 'The DoLS scheme  is not fit for purpose in its present form'.  The report release coincided with an excellent program by BBC Radio 4 on the DoLS, The Report, which interviewed several key players in the DoLS - including Charles J, the Official Solicitor and Roger Hargreaves who authored the MHA report.  Taken together with conflicting reactions to the Cheshire ruling, there seems to be real confusion about what the DoLS are for, and how they should be applied.  I sense a real appetite for reform, but less consensus of what those reforms should consist in.

Carl Gardner: Is it useful to hitch safeguards to human rights?

In response to my piece on why the Mental Capacity Act couldn't be 'policed' by a regulator  Carl Gardner from the Head of Legal blog offered some very insightful and interesting comments.  He's kindly allowed me to reproduce them here (and see also this post from his blog).  They've given me much food for thought and I've written a separate post raising questions generated by the comments of Carl and others: perhaps it's not useful for human rights safeguards to be linked a 'human rights' instrument at all.

Thanks for responding in such detail, Lucy. I think this is a really interesting discussion. I can't reply to everything you've said, but I do want to say what I think the difference between us is (I'm not sure we're disagreeing as much as it might appear on the surface) and why I worry about an instinctive reaction "against" the Cheshire judgment.

Loopholes in human rights protection - let's get it right this time

After two posts yesterday I had promised myself no more blogging until next week, but I wanted to offer a couple of comments on today's report on the inquity into home care (also known as domiciliary care) by the Equality and Human Rights Commission (EHRC).  I'm really glad the EHRC conducted this inquiry, and they've done a really thorough job of it.

Why doesn't the Human Rights Act 1998 apply to home care?

Post-Neary spike in deprivation of liberty cases in the Court of Protection

The Court of Protection have just sent me some updated figures on deprivation of liberty cases.  The figures are quarterly data showing the number of appeals against detention mounted under s21a Mental Capacity Act  - so that's appeals against detentions authorised under the deprivation of liberty safeguards - and also deprivation of liberty cases arriving in the Court of Protection by other means.  Some of these cases will involve people detained under the deprivation of liberty safeguards, perhaps where the supervisory body has sought a best interests declaration from the court under s15 MCA, and others will be cases where authorisation to detain has to be sought directly from the court because the DoLS don't apply.

Why no care regulator could ‘police’ the Mental Capacity Act 2005

Last week, in my commentary on the Court of Appeal ruling in Cheshire West and Chester Council v P, I expressed my disappointment that the deprivation of liberty safeguards would no longer apply to many thousands of adults like P, who as a result of an ‘impairment of the mind or brain’ are subject to very restrictive forms of care.  One of the responses my commentary received was from Carl Gardner, a very talented legal blogger and experienced barrister and government lawyer in his own right.  Carl wrote:

Applications for permission to the Court of Protection - A statistical analysis

In response to a question about the typical work of a Court of Protection judge, the Senior Judge at the Court of Protection (Judge Denzil Lush) has very kindly shared with me some information he has collated about his workload since 2008.  He has also permitted me to reproduce a statistical analysis I conducted on it here for others who may be interested in the work of the court to look at.

The statistics relate to applications for permission to the Court of Protection.  Except in certain specified circumstances, the Court of Protection requires applicants to seek the Court’s permission before hearing a case.  In general, cases requiring applications for permission are not ordinary property and affairs matters, but relate to deputyships and care and welfare issues.  Certain groups do not require permission to apply, but in general people who are not deputies or LPA’s will need to seek permission (see the Court of Protection rules for more information on when permission is needed).

Commentary: Cheshire West and Chester Council v P

This is an extended version of a guest commentary kindly invited by the 39 Essex Street Newsletter editors on the Court of Appeal's recent ruling in Cheshire West and Chester Council v P.  The shorter version will be in their published newsletter, which I will post a copy of here as soon as it is released.  Meanwhile, you can read a summary of the judgment I wrote for the newsletter here, and backcopies of the 39 Essex Street Newsletter are available here.  As with the summary, all mistakes and views are my own. 

Summary: Cheshire West and Chester Council v P

I was delighted to be asked by the barristers at 39 Essex Street to write a summary of the Court of Appeal's ruling in Cheshire West and Chester Council v P for their Court of Protection newsletter (backcopies available here).  They have very kindly said I can post the summary here.  In a subsequent post, I will give an extended version of my guest commentary.  All mistakes and views in this summary are my own.

Summary of the Court of Appeal's ruling in Cheshire West and Chester Council v P

This case was an appeal by Cheshire West and Chester Council against a ruling that P, a man with cerebral palsy and Down’s syndrome who lacked capacity to make decisions about care and residence, was deprived of his liberty.  P lived in a small group home that was not a care home, and hence not subject to the deprivation of liberty safeguards (DoLS) authorisation regime.  Consequently, any deprivation of liberty found to be occurring by the court would have required authorisation directly from the Court of Protection itself, and annual reviews by the court (see Salford City Council v BJ).  The case was heard by Munby LJ, Lloyd LJ and Pill LJ, who considered under what circumstances the care of an incapacitated adult might satisfy the ‘objective element’ (JE v DE, [77]) of deprivation of liberty under Article 5 ECHR.

Book Review: Community Care and the Law

Authors: Luke Clements and Pauline Thompson

Contributors: Carolyn Goodall; Jean Gould; Edward Mitchell; Camilla Parker; Alison Pickup.

Price: £60 (£57 on Amazon, and £39 for the Kindle edition)

Publisher: Legal Action Group, their page on the book is here

Sample chapter available here.

DoLS: Good news day, bad news day

DoLS have been in the news again, one good story and one less good...

Community Care magazine have written a great article on the DoLS, and also produced a guide to the deprivation of liberty safeguards for care homes produced by Community Care magazine, with some help from John Leighton at SCIE.  Roger Hargreaves of the Mental Health Alliance, interviewed for the piece, makes the point that care home managers can't really be expected to operate without a proper definition of deprivation of liberty - hopefully the Cheshire ruling will offer some more clarity.  But I wonder how many care home managers will read it?!  The key task in the longer term and once the case law has settle down a bit, will have to be a revision of the DoLS code of practice.

A few thoughts on the Guardian's Court of Protection piece

The Court of Protection hears cases about some of the most excluded and silenced people in our society.  It is surely a good sign that the media, that MP's and campaigners are sufficiently concerned about their plight that they take such an interest in this court's new jurisdiction under the Mental Capacity Act 2005.  As Amelia HIll has written in the Guardian today, the new Court of Protection came into being in 2007; the primary difference between this Court of Protection and the 'old' Court of Protection is a jurisdiction to hear matters of care and welfare.  According to the most recent Court of Protection report, the vast majority of the court's workload is taken up with property and affairs matters; fewer than 2000 of the 23,000 cases the court heard last year concerned welfare and care matters.  Nevertheless, it is these cases that capture the imagination of the public and the media.  Rightly so.  Amelia Hill is right to draw attention to the types of sensitive and controversial issues that fall within the court's jurisdiction: whether a person should continue to live with their family, or be removed from their care; levels of contact with family members in the presence of allegations of abuse; matters relating to sexuality like whether a person should be allowed to have sex, whether a person should be given contraception or be sterilised, whether a person should have an abortion; matters relating to medical treatments, including the power to coerce medical treatments and surgeries against a person's resistance, etc etc.  This court deals in the most intimate and personal matters in a person's life.  The question the Guardian has taken up, as other media outlets have before, is whether the court should be more open to ensure the decisions it makes are subject to proper levels of scrutiny and debate.

I have written quite a bit on this before (collected under the tag Open Justice), and my primary contention has been that the general rule that identities should be protected and information in the public domain should be subject to court imposed restrictions is appropriate and promotes justice.  I echo the words of Fenella Morris quoted in the Guardian: 'It seems to me there's an unfairness in saying that if you lack capacity, you don't have the right to the same level of privacy and dignity as the rest of us.'  However, I believe there should also be a general rule that written judgments are published for every case (particularly care and welfare cases), and that unless there is a very good reason (given in the judgment) any public authorities involved should be identified.  On the question of media attendance of hearings, I would be interested to know how many hearings the media have actually been refused access to.  From the sounds of what journalists tell me, the process for applying to attend a hearing is costly and involved; I'm sure improvements could be made and I'd like to see what recommendations they propose.  But I'm not sure a general rule of an open court would promote justice.  The media have tended to be involved in cases where families have sought them out and desired that they attend; I doubt that the majority of families involved in Court of Protection proceedings would want this.  The biggest concern would be that a full media gallery would have a chilling effect upon applications applications to the Court of Protection, and drive these decisions further underground away from even the scrutiny of the courtroom.

What I feel many in the media and family justice movement have failed to understand, is that before the Mental Capacity Act 2005 created the Court of Protection these kinds of decisions - around sexuality, medical treatments, family life - were still being taken, but without any kind of judicial oversight.  They were taking place in staffrooms, far from the eyes of either the law or the media, and only rarely did anybody seek judicial authorisation for controversial decisions like removing somebody from their family or forcing medical treatments upon them.  Only rarely would a family manage to challenge a decision they disagreed with.  The Mental Capacity Act 2005 hasn't just magicked up a whole range of new practices that interfere with liberty and family life; it has attempted to impose the rule of law on coercive practices that were already occurring, and offer families an appropriate route to challenge them.

The deprivation of liberty safeguards are another example of where the court's new powers to detain a person in their best interests impose the rule of law on practices that were already - are already - occurring throughout the country on an unscrutinised, unmonitored, and unchallengeable basis.  In the limited amount the deprivation of liberty safeguards have been reported upon, the media have tended towards the view that "more deprivation of liberty authorisations = bad".  This couldn't be further from the truth.  In all seriousness, what did they think the DoLS have changed?  Do they think the care homes and hospitals have suddenly started detaining a whole population that they didn't before?  The truth is that these people were already detained, and they were detained without any legal framework to reduce its arbitrariness and guarantee them a right to appeal.  The issue the media should be concerning themselves with is not that the courts have new legal powers to deprive people of their liberty; but that people up and down the country are currently deprived of their liberty without any legal powers at all.

I was interested that in a separate interview with the Guardian Sir Nicholas Wall:

...used the interview to discuss the court's controversial deprivation of liberty safeguards, which allow council or NHS officials to restrain someone in a hospital, care home or retraining facility for as long as the state deems it to be "in their best interests".

At present, these powers are only available to judges sitting in the high court in London. Wall, however, revealed his support for broadening the remit to include circuit and district judges, with a consultation launched in the next month.

"If we are at the stage where case law has been established, then we can gradually work our way towards having people outside London who are competent in the work of the court of protection, acting as judges," he said.

Care and welfare proceedings in general, and the deprivation of liberty safeguards in particular, are said to be causing significant problems within the Family Division of the High Court, through diverting judicial resources away from their normal business of family cases without any increase in resources.  It is no wonder that Sir Nicholas Wall, then, would want these cases to be heard by circuit and district judges.  I would be interested to see what the consultation finds though, as the case law seems to me to be far from 'established' - in the DoLS at least.  Only a few weeks ago a high court judge refused to rule on whether a person was deprived of their liberty or not, because the case law was so unclear.  Perhaps that will change when the Cheshire ruling comes out though.

I just wanted to take issue with a few comments made by John Hemming on the Court of Protection, reported in the Guardian.

First, he says, the "secrecy" of the process – which can extend to families being ordered not to complain to their MPs about cases in progress – undermines the fundamental principle of British law that justice must be both done and seen to be done.

It strikes me that Hemming is seeking to conflate issues he regularly campaigns on in family justice matters with the Court of Protection.  Indeed, that may be why the article cites the case of Rachel Pullen as a Court of Protection case, when - although it did concern issues of mental capacity - it was surely primarily a family court case concerning her children.  I've never really known what evidence Hemming bases his contention that the family courts are ordering families not to complain to their MP upon, but I would absolutely astonished if this was occurring in the Court of Protection.  I challenge him - and media outlets that reproduce this claim - to provide evidence that a Court of Protection judge has even once ordered a family not to complain to their MP.  [Edit 07/11/2011: John Hemming has been in touch to say that he knows of specific examples where a Court of Protection judge has made such an order. However, he says he can't provide more information without getting his constituents into trouble, which is fair enough.  It was apparently discussed on 17 March 2011, I think in this debate, although I'm not clear which of these cases he is referring to.]

Second point:

The second problem, [Hemming] says, is the use the court makes of single experts to sum up all the evidence presented, instead of a range of experts giving varied opinions.

Instead, Hemming wants disputes dealt with under a tribunal system, where people who are detained may appear in person instead of having decisions taken on their behalf by the official solicitor, on the advice of a single expert.

I have to say I find this argument absolutely laughable.  One of the key differences between the Court of Protection and tribunal systems is surely that such a range of experts and other witnesses are called upon.  That is precisely why Court of Protection cases are lengthy, costly and involved, and why it would be hard to deal with them under a tribunal framework.  It is my contention that the 'best interests' framework under the Mental Capacity Act 2005 has significantly shifted the balance of power away from 'single expert' justice, because it covers such a range of issues.  Unlike many other areas of law, the Court of Protection judges absolutely do not defer to the authority of medical experts, or single experts.  In fact one of the things that is striking about cases like W v M (the case of the minimally conscious woman whose family sought to allow her to die) is the range of voices heard that would normally be ignored in the courts.  Baker J heard evidence not only from medical authorities, but also Occupational Therapists, Physiotherapists, care home managers and even ordinary care staff - not to mention family.  And all their views were accorded respect and considered in hist judgment.  Take another case on litigation capacity, V v R [2011], the court heard evidence from a psychiatrist, a neuropsychiatrist, two neuropsychologists and the claimant's mother.  This is a far cry from the 'single expert' view that Hemming paints, and I'm not really sure what kinds of cases he is referring to.

As for the idea a tribunal system would be better - does Hemming mean a tribunal system like the one used in mental health?  The one so 'secretive' that the media and 'transparency' campaigners have all but forgotten to campaign about it?  The one where Albert Haines had to fight to have his case heard in public, and where - even so - the hospital sent their PR officer to sit in on his interview with the Independent (I'm sure it was his best interests they were looking out for there...).  Talk about secret justice - where are the published judgments for those cases then?  And this system covers far, far more people.  It's true that tribunals are more 'accessible' in certain respects than the Court of Protection, but that doesn't mean they offer a better guarantee of justice. There is research that suggests that the mental health tribunals do not treat patients particularly fairly, that they discredit the views of patients, and that they defer excessively to medical opinion.  They have to do this, in my view, to get through so many cases so quickly; the difficulty with not having a rigid hierarchy of expertise is that you have to listen carefully to everybody's view - and that takes time.  

I agree with Hemming that there are issues in the way litigation capacity is managed in England and Wales; I'd like to be more convinced that the mechanisms for restoring legal capacity are robust.  I'd like to see the people at the heart of these cases more involved in the court proceedings.  But I'm really not sure on what grounds he thinks a tribunal system will help.  Court of Protection cases are lengthy and involved mainly for the reason I've just pointed out: they don't just defer to the opinion of a single expert, they do take the views of family and P themselves seriously, and they balance a whole range of factors beyond the medical.  The single biggest threat to justice in my view is the lack of resources to enable the court to continue to do that.

Abuse of vulnerable adults statistics

The NHS Information Centre has just produced some annual statistics on safeguarding referrals received by Councils with Adult Social Services Responsibilities (CASSRs) in England.  The NHS IC of course have produced a report, and it's been picked up on in quite a few media outlets (Telegraph, the Mirror, Community Care, Financial Times).  Apparently another, more detailed, report will be produced next March, but I couldn't wait that long for a piece of work I'm doing at the moment so I had a play with the raw data.  In my research into the Mental Capacity Act 2005, I'm particularly interested in issues for adults with learning disabilities and adults with dementia, so I tried to unpick the NHS IC data to look at the picture of abuse for these groups.  Unfortunately 'dementia' isn't a category in it's own right for a lot of it, so I often just had to make do with looking at older people instead.  Before I go on to present what I found, there are some issues with the data that are worth raising.  Mithran Samuel at Community Care has summed them up well, so I hope he doesn't mind if I quote him:

And while we wait for the Cheshire ruling...

*Drums fingers on the desk*.  Everybody's waiting for the Court of Appeal ruling in Cheshire West and Chester Council v P.  The Cheshire case of course was the one where the naughty local authority rewrote care records after a hearing to disguise the degree of physical intervention (ie. restraint) that was occurring in P's care.  It was this deceit by the local authority that was picked up on in news reports, but at the time I wrote that one of the most interesting things about the case was that it threw yet another spanner in the works as to the meaning of deprivation of liberty.  Specifically I wrote:

The inspection frequency pendulum swings again?

As regular readers of this blog will know, I am interested in how human rights can be protected through social care regulation.  A while ago I wrote a piece which discussed how over the last decade the approach to regulation of social care had changed from a methodology that relied upon high levels of inspection to a methodology that used risk-based proportionate inspections.  I wanted to follow up on a couple of things from that piece.

Transparency... Coming to a "secret" court near you?

A few weeks ago I wrote about the Family Courts Information Pilot, a project trialled by the Ministry of Justice and some participating courts whereby written judgments were produced for certain types of cases.  The point of the project was to enable a) children to have access to written judgments in cases that were about them in later life, and b) the public to have access to anonymised versions of these judgments via the website Bailii.

At the time of writing I felt pretty despondent about the likelihood the government would roll out the scheme nationally because of the resources required to produce the anonymised judgments, in a family court system under high pressure.  But on Thursday a comment in the government's response to the House of Commons Justice Committee report on the Operation of the Family Courts made my heart lift:

Article 8 and tea without sugar

The Care Quality Commission and the Equality and Human Rights Commission  have a Memorandum of Understanding to facilitate them working together to promote a human rights approach to social care regulation.  They have issued some new guidance for CQC inspectors to help them understand and promote equality and human rights compliance in care settings.  I've just had a quick look through the guidance, and I am really impressed by the approach they are taking.  Not so long ago I was bemoaning the untapped potential of Article 8 in social care on the UK Human Rights blog.  The CQC and EHRC guidance makes clear that even the "small things" have potential human rights implications, as this example from this document (pdf) shows:

Mental Capacity Act and Tenancy: An open question

[This piece is cross-posted from the brilliant Nearly Legal blog, who I approached with a question about contracts and tenancies. Readers interested in capacity and housing issues might also be interested in a paper by the National Development Team for Inclusion called 'The Real Tenancy Test'. Over to Nearly Legal - answers on a postcard please...]

I have had a question from the editor of the Small Places blog, which is a very fine blog on human rights and community care, with attention to Court of Protection matters. I think it is a question which might benefit from the assembled housing law mavens who read NL from time to time.

The question concerns the position of someone lacking capacity under the Mental Capacity Act 1985 when an independent tenancy is sought. There is conflicting guidance and threatening case law to deal with.

Cooperation and coercion

In 1948 we abolished the Poor Law, requiring people to support their relatives on their own or face “indoor relief”, but you wouldn’t realise it talking to many carers. I have lost count of the number of times I have met – or heard of – carers who believe they have a stark choice: either continue to provide care that is draining your own health and reserves, or your loved one will be removed from the home and placed in residential care. I have met carers who provide support virtually round the clock who just need a little more support to keep going – perhaps a few more hours a week, perhaps a holiday once a year – who have been given the impression that if they ask for more help, if they make a fuss, they will be recorded as “unable to cope” and their loved one will be removed. Or, even sadder still, carers who have given up begging for vital support and who feel the only option available to them now is to give up their caring role altogether and concede that they cannot cope.

Bits and bobs

Today I was preparing a 2 hour workshop for carers on community care law.  To accompany the workshop I produced a short booklet for people to take away.  I've tried to word it in plain English - well, as plain as you can get with community care law...  I've put it up here (pdf) in case anyone might find it useful.  Please feel free to point out any errors or omissions, or make any suggestions!

Also, as you may have seen, the Court of Protection delivered its judgment about the case W v M yesterday. The case concerned a request by the family of a severely brain-damaged woman in a minimally conscious state to withdraw her feeding tube and allow her to die. Yesterday the court decided that the principle of preservation of life was decisive in this case. I wrote about the ruling for The Guardian here, and I've previously written a bit about the background to the case here.  Counsel for M's family acted pro bono, and Mr Justice Baker expressed his appreciation of their efforts to support the family, saying 'the family could not have had better representation'.  He commented that:

It's all about Bailii

I was very interested to see The Guardian picking up on the issue of published and publically accessible judgments at the weekend in an editorial.  The Guardian discusses the oft-bemoaned issue of the judgments not being indexed by Google or other web indexing facilities, and consequently the limited use we can make of powerful Google search engines and added features (like alerts, or deeper functionality of Google Scholar – here’s an example with US case Brown v Board of Education).  In response to the Guardian piece, Adam Wagner at the UK Human Rights Blog makes an important point – and one which I have not been as quick to point out in the past as I should have been.  Yes, it can be frustrating when judgments don't make their way onto Bailii, when Bailii’s functionality is limited – but Bailii is the wrong target for our frustrations.  In fact, without Bailii, the open justice agenda would be absolutely stuffed. 

Is Article 12 keeping you awake at night?

Because if you are at all interested in issues around mental capacity and human rights (as I tend to assume readers of this blog are), then Article 12 of the Convention on the Rights of Persons with Disabilities (CRPD) should be giving you pause for thought.  Article 12 is the right to equal recognition before the law of persons with disabilities.  It has been described as the core of the CRPD, and also as a 'paradigm shift', a 'war of ideas' and a 'clash of creeds' (see Quinn, more on this paper below)  Article 12 stands firmly within the tradition of the social model of disability – with a view of disability as a phenomenon that arises out of social barriers, prejudice and discrimination, in contrast to individualised and medicalised accounts.  On this model, what we call ‘mental incapacity’ arises through a combination of discriminatory attitudes and a lack of supports to assist people with disabilities in decision making. Both of these, being social phenomena, are remediable if we undertake work to challenge oppressive attitudes and ensure resources to support decisions are available.  In the final analysis, the strength of Article 12 may rise and fall with the strength of the social model of disability – which, despite its very important insights, is not without its limitations (see Shakespeare, 2006).  In the meantime, however, there is much to be learned from the debates around Article 12, and I hope to explore them more fully in this blog in this post and others yet to come.

What do we need deprivation of liberty safeguards for?

A group of eminent experts on the deprivation of liberty safeguards (DoLS) published a very important piece of research this month.  Writing in The Psychiatrist they reported the results of an exercise which asked a group of lawyers, psychiatrists, best interest assessors (BIA’s) and independent mental capacity advocates (IMCA’s) to make judgments about whether situations described in 12 vignettes amounted to a deprivation of liberty or not.  Overall agreement between professionals was extremely poor (Kappa score 0.16); in descending order it was highest amongst IMCA’s, then psychiatrists, then BIA’s, and lowest amongst the lawyers.  Lawyers were the most likely to find deprivation of liberty to be occurring

Speaking truth to power

The House of Commons Health Select Committee (HSC) have published a report (also here in pdf form) on their annual accountability hearing with the Care Quality Commission (CQC).  You may recall that earlier this year the HSC gave the CQC rather a grilling over the massive drop off in inspections (which I've discussed previously on this blog).

The report heavily criticises CQC's leadership for the fall-off in inspections, recruitment of inspectors, the 'Excellence' award, their whistleblowing procedures, over-reliance on Quality and Risk Profiles etc, but the reasons it gives for doing so are quite interesting politically.  On scanning through the report the overwhelming impression is of an organisation that was given an impossible task on impossibly tight resources.  From the one-third cut in funds when the three predecessor commissions were combined, to the government-imposed freeze on recruitment of non-front line staff (apparently inspectors are 'back office'), to being required to re-register all providers and a whole bunch of new services on these limited resources, it seems as if CQC were asked to achieve the impossible by parliament and the government.  The report acknowledges that, and yet it still slams the CQC's leadership for failings.  Why?  Because:

The Family Courts Information Pilot

Last month the Ministry of Justice published a report of a pilot project that ran last year whereby participating family courts (Cardiff and Wolverhampton County and Magistrates’ Courts and Leeds Magistates’ Court) produced – and published written judgments of certain kinds of Children Act 1989 cases. The project had three main aims:

• to increase transparency and improve public understanding of the family justice system by publishing anonymised judgments in all serious children cases; 
• to help parties by providing written judgments in all cases, even where a matter was not contested; 
• to provide judgments which the children involved could access in later life. 

The Family Courts Information Pilot (FCIP) is of great interest to me, as many similar issues pertain in the Court of Protection around transparency, producing and publication of written judgments and considerations of privacy. I’m sure the family lawyers will blog on the particular issues pertaining to cases under the Children Act (I’m hoping Lucy Reed will soon!), so I’ll stick to some general comments about the project’s findings, and what the implications might be for the Court of Protection if it were to take up the scheme. I won’t rehearse in any great detail the issues around transparency/privacy, as I’ve blogged about them so many times (under the tag ‘Open Justice’), and because in any case Lord Justice Munby has put the arguments for greater transparency in the family courts far more eloquently than I could hope to do in this speech. 

Round up: Personalisation, Disability Hate Crime, the role of CQC and the future of services after Winterbourne View

It's been a busy week in adult social care, and I'm struggling to keep up - so I've selected a few issues that have caught my eye and offered links and comments.

Personaliation and Resource Allocation Systems

I've been bowled over by the response to last week's blog post on personalisation and Resource Allocation Systems.  Clearly it's a topic of interest to lots of people.  Fighting Monsters has written a great post about it here, in which she describes her own experiences of working with the RAS and questions whether the personalisation dream is dying.  Mithran Samuel at Community Care has got some interesting comments from various organisations on transparency and RAS's - including the councils.  And I've also been pointed to this brilliant post by Allan Norman on the Cambridgeshire judgment.  He comments:

It seems all too easy to predict a chain in which:

• first, services are provided in cash rather than in kind;
• then, the link between the value of the care and the amount of the cash payment is obscured;
• next, that link is formally severed;
• finally, it is the service user's problem that budgets and targets drive the cash payment with no reference to need whatsoever

How 'transparent' are personal budgets?

[Note: The research referred to in this post has been expanded upon since it was written and published in the Journal of Social Welfare and Family Law (Series, L. & Clements, L. (2013) 'Putting the Cart before the Horse: Resource Allocation Systems and Community Care', Journal of Social Welfare and Family Law, 35(2) 207-226).  A pre-print version of this paper can be downloaded from here]

The personalisation agenda in adult social care is a bit of a hobby of mine.  It is massively important for understanding the landscape of adult social care today.  Sometimes, when I'm bored of the Mental Capacity Act, I indulge myself by doing little research forays into personal budgets, resource allocation systems, brokerage, providers and rules and regulations (see, e.g., this post on whether personalisation is inadvertently criminalising carers).  I know, I'm a very sad person.

The thing that interests me about personalisation is that it's simultaneously such a brilliant and yet dastardly idea.  The central idea is that instead of the local authority deciding what your needs are and matching them with community care services they have chosen, under 'self directed support' or personalisation you participate in assessing your own needs, then the local authority convert this into a cash value using a Resource Allocation System (a RAS), and then you spend that money on the services you think will meet your needs.  For people who would prefer to minimise contact with social services, who would prefer to research and choose their own services, who would like to be able to threaten service providers with taking their custom elsewhere instead of being stuck with a slot in a 'block contracted' service, for people who want to go to the gym or a football match or the pub instead of a day centre, for people who would like to employ a personal assistant directly instead of dealing with the vagaries of domiciliary care agencies - it is fantastic.  Well, almost.  When people have the knowledge, support and adequate resources to meet their needs and achieve their goals, personalisation is fantastic.

Personalisation is not without its critics.  And no, David Brindle of the Guardian, it's not just paranoid social workers who think it's a challenge to their role, and it's not just the Daily Mail fantasising about spending social care money on prostitutes and lap dancing  - there are concerns about personalisation from a range of perspectives.  The organisation In Control were the pioneers of personalisation, and in 2009 they held a conference entitled 'Don't be Fooled by the Law' which explored tensions between personalisation (which is a policy, not a law) and community care law.  Concerns were voiced from a range of legal professionals around whether pure self-assessment would miss important issues, whether personal budgets attracted safeguarding issues, who was liable if a person was placed at risk, and also whether eligible needs would still be met under personalised models of care.  The issue I want to focus on today, however, is whether personalisation is as 'transparent' as it's advocates suggest, and whether it does offer opportunities for 'cuts by the back door' as its detractors say.

Transparency is central to the ideals of personalisation and may be legally important

[Edit: See Postscript 2 below for more information and a response to the issues raised in this post from In Control]

In their conference reported (Don't be Fooled by the Law) In Control stated:

In Control’s view is that FACS is not in fact “fair” and should be abolished, and that a RAS should become the single, clear and transparent way of determining the indicative resource allocation for individuals. 

They later addressed the concern that RASs are not transparent:

Q5. In reality the RAS is rarely transparent. Sometimes there are multiple versions of the Self-Assessment completed (“user,” “carer,” “care manager”), and then all the power is in the hands of the Local Authority to interpret this data and allocate resources as it wishes. 

Of course, any system is open to abuse and in a situation of budgetary pressure it would be remarkable if there were not examples of Local Authorities which found ways to make use of the reformed system to achieve short-term savings in ways which conflict with the Disability Legislation. Sometimes, individual managers who are under pressure to deliver savings targets do this, on other occasions there is little doubt that SDS is seen from on-high as a way to contain costs, and little more than this. This is extremely sad. In Control is absolutely adamant that it is unacceptable, and we are equally clear that it is not the Government’s intention in its Putting People First policy. Where we encounter such bad practice our approach is firstly to remind the Authority concerned of the Statement of Ethical Values which they agree to on joining In Control -this is the bedrock of all our work - and secondly to offer advice and guidance as part of our leadership development programme, and thirdly to advise them that they are liable to challenge under the Disability Discrimination Act 2005. If a Local Authority is challenged under this legislation, it may well be faced with Judicial Review Proceedings which will cost large sums of public money.

RAS's are touted as being more 'objective' than resource allocation done through traditional means; on a positive note this may mean that service users who are widely offered less attractive packages of support (particularly older people) may benefit.  However, it is in the nature of the RAS that some people will not benefit, because the resources are not being increased overall - they are being redistributed.  This is really clear from In Control's own chart from their guidance on creating a RAS:

The smoothed purple area reflects the new entitlements for service users calculated using the RAS, and the blue lines represent existing amounts spent on a traditional care plan.  You can see that some people have more money to purchase services, but you can see that other people's budgets have been drastically cut.  The interesting questions for lawyers is whether their eligible needs can still be met from this amount.  In the case JL v Islington (2009) the parents of a disabled child challenged a drastic reduction in his care budget following application of a sort of banded award system similar to RAS's.  The judge stated that the amount awarded at must be flexible, and if the amount arrived at by resource allocation procedures was insufficient to meet eligible needs, then it must be increased.  Imagine the cost to the system if all the people in who had their care packages cut successfully challenged it, meanwhile the people at the lower end were being awarded more...

In another important case, Savva v Kensington and Chelsea (2010), the judge stated:

The personal budget must be sufficient to purchase the services and is needs-led, and it seems to me that the only way in which a service user can be satisfied that the personal budget has been correctly assessed by the Panel is by a reasoned decision letter. [44]

and

That principle is directly applicable in the present context, and the problem of course, in this case, is that a reading of the letter from the authority, which states that the Panel has kept the allocation at the same personal budget, provides no indication whatsoever as to why the Panel arrived at this decision. [46]

The question is, if a local authority is relying on a RAS that is basically a mathematical algorithm based on multiple choice assessment responses, how 'reasoned' can this letter be?  A case that is headed to the Supreme Court will soon test this issue.  In KM v Cambridgeshire County Council the Court of Appeal described the process for arriving at an award using a RAS as 'tortuous' [2], [7], but did conclude that the council had sent an 'intelligible eventual explanation' and the decision to award that amount was rational.  The Lords of Appeal commented:

There has of course to be a rational link between the needs and the assessed direct payments, but, in our judgment, there does not need to be a finite absolute mathematical link. [22]

The Supreme Court will consider this issue further.  It will be interesting to see how far local authorities must make clear the reasoning involved in the RAS to service users to explain their awards, and whether this in itself is deemed a sufficient explanation.  It seems to me that unless the underpinnings of RAS's are made transparent, there is a real danger that the reasoning behind an award would become "computer says so".  In any case, however, it strikes me as a significant public interest issue to understand the general basis upon which community care resources are being distributed.

Why should we worry about what's in a RAS?

I would not for one minute deny that traditional systems for allocating resources in community care are highly subjective, and rife with opportunities for discrimination and unfairness.  However, I would contest the idea that RAS's themselves are either fair or objective.  They encode in their calculations certain assumptions about how much it would cost to meet a person's eligible needs.  This might include, for instance, assumptions about the cost of care services in the area, which may not take into account the cost of specialised services for meeting a person's needs, or it may inhibit purchasing from smaller or higher quality care providers that are more costly.  In a paper by one of the architects of personalisation Simon Duffy (2005) gives an example of a very primitive RAS in two tables on pages 7 and 8.  Note that people who live outside the family home get twice as much money as those who do not.  Now, clearly this is only a sketch and not a real functioning RAS, but it has clearly built in assumptions about the level of support a person will get from their family, with no consideration of how much support their family is able and willing to provide.  Some RAS's include a 'cost abatement multiplier' - which Luke Clements, in his excellent and entertaining paper on personalisation, describes thus: 

It is at this stage that any science in the process is jettisoned in favour of witchcraft. The resultant sum is then reduced. The reason for this has variously been explained as providing ‘headroom to avoid overspending’ or to avoid inducing ‘dependency’ (see L Clements, ‘Individual Budgets and irrational exuberance’ (2008) 11 CCLR 413–430). (p4)

It would be interesting to see what 'rational' explanations for cost abatement multipliers could be offered in court...

There are other reasons why it would be useful to look at RAS's.  Some people may need more help managing their personal budget, for instance through buying in brokerage services - it would be useful to know if this is factored into the award they are given.  If it is not, then we should seriously consider whether RAS's embed discriminatory practices against people who lack the mental capacity to manage their own individual budget.  It would be interesting to know whether a local authority operates the same, or different, RAS's for people who, e.g., are older, have mental health problems, have learning disabilities or physical disabilities.  It would be useful to know what kinds of questions in the assessment are linked to the RAS - are there salient issues that might affect somebody's community care needs that elude this form of 'multiple choice' assessment-by-numbers?  For all these reasons and more, I contend that it is very important we are able to explore the underpinnings of the RAS's operated by the local authorities.  But here's the problem.

[Edit: 02/03/2012 Since writing this piece I have continued to try to find out about RAS's for a research paper which I hope to publish at some point in the future.  My findings suggest that the these concerns about unfairness in the RAS may be well founded, but perhaps of more interest is the finding that many local authorities have found them to be so inaccurate they have simply abandoned using them.  Of those that continue to use them and supplied the relevant information, the gap between 'indicative amount' and 'actual allocation' is so significant, and so often people receive less than the RAS indicates, that the idea the RAS creates a 'fair and transparent entitlement' is laughable.  I wonder what the point of the RAS is at all, if care managers end up using different means to work out the cost of a budget?]

How transparent are local authorities' RASs?

As I said, personalisation is a sad little hobby of mine, so I wrote to various of the 'Total Transformation' local authorities who In Control worked with to test out the personalisation of adult social care.  I asked them various questions about how personalisation was going for them, and also for the mechanisms underpinning their RAS.  I didn't write to them all as this isn't a full blown research project and I didn't have the time, and I also wrote to Cornwall Council, who are not a transformation local authority, but it was where my doctoral research is based.  I made all my requests through the third party website What Do They Know, so they are available for all to view.  And yesterday I sat down and belatedly collated all the links and responses into this google spreadsheet.  The spreadsheet is (if I do say so myself) quite interesting for reasons unrelated to RASs, as it contains links to different authorities' policies around mental capacity and CRB checks, and also information on the number of legal challenges they have received in relation to personalisation.  Interestingly, Lancashire apparently received 30 legal challenges (including letters before action that didn't go to trial) last year, while Hartlepool received none, and [edit 07/09: I just spoke to Kent's FOI officer by telephone, who says they received a request this week asking whether they have had any legal challenges relating to the amount awarded in a direct payment.  She says that their legal team advised her they had had none to date.  Not even letters before action.]  Most areas seemed to be having around 5 or 6 personalisation related legal challenges a year; I'm not really equipped to say if that's a lot in the great scheme of things, but some readers may know.

The thing that is striking is that whilst most local authorities were happy to share policies and documents galore (sometimes nothing to do with what I had requested!), there was a marked reluctance to share information about the RAS in any great detail.  West Sussex and Hampshire Council were the most 'transparent', in that they provided information on the points that would be scored by different responses to the assessment questionnaire.  I have to say, I am still not clear from these responses how you get to a cash entitlement, it would have been nice to see a spreadsheet or something you could 'test drive', but certainly it is interesting to be able to see what questions are asked, and how much weight is attached to different responses.  Kent County Council responded that they did not operate a RAS.  Cambridgeshire, Hartlepool and Lancashire gave sort of vague descriptions of how they had developed their RAS's, but little detail on the content of the RAS or how it worked.  None of these responded to follow up requests for further information (although - if they received the requests - they would be required by the Freedom of Information Act 2000 to either treat these as new requests - that should have been responded to months ago - or as internal reviews meriting a response).  Interestingly, Cornwall County Council and Essex County Council applied exemptions contained within s36(2) Freedom of Information Act 2000 to supplying this information.  Essex have yet to supply the 'public interest test' itself, but I've chivvied them with a phone call.  Cornwall Council said this:

The RAS is a spreadsheet (at present) that uses questions in ACS overview assessment to produce a financial indication of how much it would cost to meet a person’s needs. If this was made available on the website then anyone completing the assessment may be able to answer the questions on the assessment in such a way as to produce a higher personal budget than they need. This could have serious implications on ACS’s management of their budget. This would also mean that a person’s assessment of their needs (our legal assessment tool to comply with Community Care Act) would not be accurate. The Council has considered the request very carefully and has decided that the information requested would, if disclosed, in the opinion of the qualified person, be prejudicial to the effective conduct of public affairs under S.36 of the Freedom of Information Act 2000.

This is quite an interesting response.  Basically, it seems as if Cornwall (and perhaps others) are concerned that by disclosing how their RAS calculates entitlements, service users will 'game' their responses to assessments in order to get their hands on more cash.  This strikes me as going entirely against the ethos of Personalisation, which emphasises trust in service users to determine their own needs and spend resources wisely in order to meet them.  It also strikes me that the public interest test has failed to take into account the public interest arguments I have outlined above: namely, that it is important that we are able to scrutinise the assumptions built into the RAS and understand how adult social care teams are distributing their resources.

[Edit 08/09: Update - Lancashire County Council responded to my request for more information on the mathematical formula used by the RAS to determine the indciative amount today by saying:

After having done an extensive search, I can confirm that Lancashire County Council do not hold any further information relating to your enquiry.

They state in their documentation that they do use a RAS, but they appear to be saying that they don't actually have any information on how it works. This seems absolutely incredible, so I've written a request asking them to clarify whether this is their position, or whether they're just applying an FOIA exemption and not sharing it with me.  I wonder if this is linked to their 30 legal  challenges last year!]

[Edit: 02/03/12: Cornwall Council contacted me to say that they had received a new request and decided to disclose their RAS after all.  You can find it on their FOI disclosure log.

Since writing this piece I have contacted 20 more local authorities, all of whom supplied details of their RAS, except Croydon.  Croydon did not say which part of the FOIA they were relying on to refuse to supply this information, but I will quote from their explanation of why:

Upon request we provide customers with quite precise details of how our RAS tool has calculated their indicative allocation. This of course is always specific to their circumstances and subject to a full explanation of the purpose and role of an indicative allocation. However, there are a number of reasons why it would be inappropriate for us to share or publish our precise formulas in their totality. The main ones are:

1.) The function of the RAS tool is to generate an indicative allocation to start support planning. Our RAS policy (which you have been sent) provides a far clearer and fuller explanation of our resource allocation system.

2.) If people completing the form (or advocating) were aware of how the answers impacted on the indicative allocation, then they may be incentivised to provide inappropriate answers to try and get a higher indicative budget. This could have serious implications for our assessment and support planning processes; and potentially even threaten the sustainability of our adult social care budget.

3.) The work of adult social care is in achieving personalised outcomes for individuals which are sustainable. The best way to promote this overriding objectiveis to focus on the community care assessment in the first instance. Over-emphasis on the RAS tool is very unhelpful from an operational and financial perspective (both generally and in individual cases).

4.) The RAS tool is developed and maintained iteratively based on learning from practice. Changes to the RAS tool can be made at any time it is felt appropriate. It is the RAS Policy that represents Council Policy, not the tool itself. The aim of these changes is to improve the reliability of the indicative allocations so that they can better inform support planning, etc. It is important to remember here that the RAS tool does not “allocate” anything. The production of an appropriate, outcome focussed support plan is the mechanism / system by which resources are allocated.”

Oh Croydon... I even wrote in my FOI request that it was for the purposes of research into transparency!  It's interesting that Croydon's refusal to disclose details on the RAS attaches to the ideological incoherence at the heart of these systems.  On the one, they are meant to create 'entitlements', and Croydon are worried that if people understood the RAS they'd rig their responses so they would be 'entitled' to more and the entire resource distribution system would collapse.  On the other hand, Croydon are quick to point out that the RAS doesn't, in fact, create a fixed entitlement.   "It is important to remember here that the RAS tool does not “allocate” anything", and so - the implication is - I don't really need to know about it anyway.  Thank you Croydon for such a fascinating response for my research on RAS's and transparency.]  One has to wonder, if the RAS "doesn't allocate anything" what the point of the costly and time consuming development and use of such systems is?

I have made many, many Freedom of Information requests in my time, and I have never felt as if I have hit such a brick wall in obtaining information as trying to find out more about RAS's.  This seems, to me, to be entirely out of keeping with the spirit of personalisation, and in a wider sense the transparency agenda promoted by this government.  Because I wasn't quick enough in chasing up local authorities for their responses, I didn't clock until last week that many of them had ignored my requests for clarification.  Unfortunately, this leaves me with a very short timescale as the clock for referring the matter to the Information Commissioner's Office will expire on 18th September.  Hopefully something more will come back by then, but so far the answer to my question seems to be: No, RAS's are categorically not a clear and transparent way of distributing resources.  Not yet, anyhow.

[Edit: 30/9: Essex County Council have now completed their 'public interest test' and have decided that it weighs in favour of disclosure after all.  Their RAS points scoring system has duly been disclosed here (pdf).    I'm still not sure how this relates to cash amounts, but I've sent a follow up request asking them.  After further correspondence, Lancashire have disclosed the full RAS system.  You can see their points scoring system here, and how points translate to indicative amounts here.]

Postscript

After posting this piece, I was interested to see these comments from social work students and practitioners on twitter (@thesmallplaces) about RAS's:

These comments suggest quite a concerning picture: that local authorities may be chopping and changing between using RAS's depending on what produces the lowest cost care plan; that practitioners themselves do not understand how the awards are arrived at; and that some RAS's may indeed reduce the awards available to people living with carers (although, these may be sensitive to what support carers are willing and able to offer).  In any case, there have been lots of reports on people's experiences of using personalisation - I'd like to see more on how RAS's are being developed and used in practice as well.

Postscript 2: In Control and transparency

Since writing this post In Control got in touch through twitter and drew my attention to their evaluation report for the transition project they ran. The relevant pages on RAS's are on p36-46.  Passages of interest include:

'Self-directed support will not function without a robust system that can put money in the hands of ordinary citizens in ways that are fair, transparent and efficient.' p26

'The RAS, whatever the finer detail, must contain at its centre a simple set of transparent rules to demonstrate how the individual gets a fair budget, according to their needs and social circumstances.'  p38

This extract from a chart on page 44 may also be of interest:

The report is really interesting in terms of exploring how RAS's are developed, and if you're a fellow RAS-geek it's well worth a read.

And for the avoidance of doubt, I asked In Control on twitter whether they thought local authorities should disclose the rules and formulae underpinning the RAS, and this was their response:

I should say at this point, if it wasn't clear at the start, I think personal budgets have tremendous potential.  My concern is that the chief aims of the personalisation agenda - empowerment and transparency - are undermined by practices like refusing to be transparent about how awards are arrived at, or only using the RAS if you think it will cut the cost of a care package.  I would also comment in passing that in discussions over the fair distribution of resources, we should not lose sight of the most significant problem facing social care today: the overall shortfall of resources to distribute. 

Is the Mental Capacity Act 2005 too paternalistic?

The concept of mental capacity sits at the junction of two of the most powerful discourses in our society today: autonomy, and paternalism.  The Mental Capacity Act 2005 (MCA) is concerned with autonomy in two interlinked senses:

• Autonomy meant as the right to determine one's own course, free from external interference (closely linked to the concept of negative liberty and Liberalism in political philosophy);
• Autonomy meant as the capacity for self-governance of one's actions (often called 'personal autonomy' in Philosophy).

At base, the MCA serves a gatekeeping function between actions (or inaction) predicated upon discourses of autonomy or paternalism.  (Very) roughly put: if you have the capacity for autonomous (self-governing) decision making, you should enjoy the right to autonomous (free from interference) decision making.  If you don't have the capacity for autonomous decision making, then paternalistic interferences with your affairs are permitted.  In theory, under the MCA a person should not be denied the right to make decisions they are capable of making; but equally they should not suffer the consequences of decisions they are incapable of making.

There's no place like home - thoughts on Rose Villa

What does it mean to call a place a home? Homes, like people, come in all shapes and sizes, and the concept of ‘home’ is almost certainly what Wittgenstein called a ‘family resemblance’ term. That is, the many instantiations of ‘home’ share a collection of overlapping similarities (like families), but there is no common ‘essence’ to pick out and say “this is what we mean by home”. Home is a relational concept: for a space to be a home it must stand in some kind of relation to a person (or people). But a building is not a home merely by virtue of a person being in it; there are behaviours we associate with homes (although they might be done in other places). Evidently there is an important emotional and psychological content to whether we experience a space as a ‘home’, rather than a place to eat or rest. I propose that there are (at least) three legally salient characteristics of home: autonomy, privacy and permanence. Without expounding a detailed ‘philosophy of home’, I want to explore two issues that come up a great deal in care: whether institutional care settings can erode a sense of ‘home’ through erosion of autonomy and privacy, and the effects and significance of the enforced closure – or move from – an institutional care setting. Both these issues are well captured in the recent fate of Rose Villa[1], a care home run by Castlebeck and heavily criticised in a recent CQC report, and which - it was announced yesterday – will now be closed. 

Access, reporting and judgments in the Court of Protection

As Adam Wagner reports, the family courts have just published a Guide to Media Access and Reporting. It was produced in conjunction with the Judicial College and the Society of Editors and was written by two barristers, Adam Wolanski and Kate Wilson.

The report is really handy and readable, and will be invaluable to any journalists (or even bloggers...) wanting to understand how to gain access to family law proceedings, and what they can lawfully report.  The report is helpfully broken up into different sections, depending on the type of hearing.  What is immediately striking, reading the report, is that the Court of Protection is subject to an almost entirely different regime to the Family Courts.  For cases relating to the inherent jurisdiction of the Court of Protection (so those are cases that do not concern the Mental Capacity Act 2005 - e.g.. concerning vulnerable adults who have capacity), there is no statutory regime in place, but the court has powers to exclude the public or the media at its discretion.  Furthermore, s12(1) Administration of Justice Act 1960 does not apply, as the inherent jurisdiction is beyond the scope of the Mental Capacity Act 2005; therefore 'In the absence of an injunction there would appear to be no restraint upon reporting'.