Courts mustn't just 'rubber stamp' deprivation of liberty authorisations

An interesting, and mercifully short, Court of Protection case has just been published on Bailii.  In A v A Local Authority & Ors [2011] (I do wish they'd stop using the letter 'A' so much, it makes things very confusing when they're all against 'A Local Authority'), the court heard a case where an 85 year old man with dementia appealed against his detention in a care home, authorised under the deprivation of liberty safeguards.  The court heard compelling evidence from the local authority and his family that, although the man was very unhappy, 'he would dislike wherever he was' [13] and the placement was in his best interests.

In what seems to be an unusual step*, the judge acknowledged that although the assessments and the perspective of the family were in agreement that the detention was in A's best interests, he would direct a Court Visitor (funded by the Court of Protection) to visit A and produce a report on his capacity and best interests [17]. The judge commented:

TUC march

The only semblance of trouble I saw on yesterday's march was the paint spattered along Piccadilly.  I've put more pictures on my public Flickr stream.

'Open Justice' (yet another) footnote

Following up on the topic of Open Justice and also relating to 'secrecy' in the family courts, I wanted to briefly discuss two issues arising from John Hemming's comments in a debate on parliamentary privilege last week.  The first is a link to a very interesting blog article by Carl Gardner at Head of Legal.  Of particular interest are the comments below the blog post, where John Hemming himself and others engage in interesting debate about the rights of constituents to speak to their MP's about active court proceedings, and issues relating to media coverage of Court of Protection and Family Court cases.

The second issue relates to a particular comment made by John Hemming at Column 153WH relating to the publication of judgments.  In previous posts on Open Justice I've written about my frustration - and that of others - at the lack of published Court of Protection judgments on Bailii (or even elsewhere).  Hemming cites Article 6(1) of the European Convention of Human Rights, which correctly* should read:

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

There does, to my mind at least, seem to be a tension between Article 6 and the lack of public judgments from the Family Courts and Court of Protection.  This may also be problematic in terms of the limited number of High Court judgments that make their way onto Bailii due to copyright issues.

Whilst the right to a fair trial itself is a limited one, the right to public pronouncement is unqualified.  I only know of one ECtHR judgment relating to this, and that is Pretto v Italy (1983).  In Pretto, it was claimed that Italian courts had 'had violated the rights of the defence by basing its decision on a judgment which had not yet been published and could not have been known to the applicant's lawyer' and that 'By not pronouncing their judgments publicly, the Court of Appeal and the Court of Cassation had failed to satisfy a further requirement of Article 6 § 1'.  The ECtHR found that:

The public character of proceedings before the judicial bodies referred to in Article 6 § 1 (art. 6-1) protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts, superior and inferior, can be maintained. By rendering the administration of justice visible, publicity contributes to the achievement of the aim of Article 6 § 1 (art. 6-1), namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society within the meaning of the Convention [21]

However the court also acknowledged diversity among member states as to the scope and manner of implementation of this 'principle of publicity' [22].  Article 6(1) is not, the ECtHR stated, to be interpreted strictly as meaning the judgment must be read aloud publicly, but states could also fulfil its requirements in other ways.  The Italian court in question had deposited the judgment in the court registry 'with written notification of the operative provisions being given to the parties, but not pronounced in open court' [24].  Anyone could have access to this judgment if they made an application to the Court registry [27].  Asked to decide whether the Italian court had contravened Article 6(1) because it had not read the judgment aloud in open court, the ECtHR ruled that:

...the object pursued by Article 6 § 1(art. 6-1) in this context - namely, to ensure scrutiny of the judiciary by the public with a view to safeguarding the right to a fair trial - is, at any rate as regards cassation proceedings, no less achieved by a deposit in the court registry, making the full text of the judgment available to everyone, than by a reading in open court of a decision dismissing an appeal or quashing a previous judgment, such reading sometimes being limited to the operative provisions. [27]

The question remains, therefore, whether judgments that are not read aloud in open court, nor placed in a registry where they will be 'available to everyone' meet the requirements of Article 6(1).  It may well be that the judge themselves has given leave for a judgment to be reported, subject to restrictions, but that does not mean in practice that a copy of the judgment is publicly available.  Is it sufficient for a judgment to be in principle available, if one is prepared to make a request of the court and pay for transcription services?  How is one to know of the existence of such a case?  It would be rather an empty right to most people if this were the case.

There are a few Family Court cases which discuss Pretto, but they seem only to do so in the context of allowing the media in or not, so I can't find any real discussion of the issues around public access to judgments.  If anyone can think of any cases which advance the argument that all judgments should be made publicly available, please feel free to suggest!  On my reading at least, the case does seem to add legal weight to the view that judgments should not be, in effect, inaccessible to the public on the basis of copyright and restricted resources.

*Unfortunately either Hemming cites an incorrect version or else Hansard writers have copied it incorrectly (I think the mistake may originate from here, which is the first version that comes up on Google).  [Edit: John Hemming has directed me to a video of the statement, which suggests the mistake is in the transcription not the reading.] The version in Hansard states 'Judgement shall be pronounced publicly by the press and public may be excluded from all or part of the trial' (italics mine).  A correct version of the Convention can be found on the ECtHR website, here.

Without access to justice, it's open season...

This is feels like a slightly lazy post, in that I'm not contributing any new findings or views, but I wanted to draw readers' attention to the important response of the Official Solicitor (OS) to the recent legal aid consultation if they haven't already read it.  The response can be found on the website, here (doc); if you've got the time I really recommend reading it (it is nearly 50 pages long though), otherwise I'll do my best to give some background and a summary here.

Alastair Pitblado (for he is the OS) does not strike me as a man prone to needless exaggeration or overblown rhetoric.  In what I know of his work, he strikes me as cautious, pragmatic and with a (some might say overly) healthy respect for the public purse, as comments in this interview in The Times suggest:

[He is] standing in the vulnerable person's shoes, he says, seeking what is best for [the client]. But they must also be proportionate: "It is tempting to want the best for your client when the best is not available." He cites a case in which the local authority could no longer keep the client in an expensive care home. "It's not my job to ensure that the client stays in that very expensive care home if a less expensive one will still protect them. We must avoid prolonging proceedings or second-guessing a council's allocation of funds." (The Times, 3 March 2011)*

So when he says that 'there is a very serious risk that the proposals would act to limit access to justice for some of the most vulnerable in society', I am inclined to believe him.  With almost unbearable attention to legal detail, in a response entirely devoid of adjectives or hyperbole, the OS takes us through each and every way the legal aid proposals pull up the drawbridge to justice for the most vulnerable.

What is the Official Solicitor?


Put in legalese, the OS is a 'litigation friend of last resort' for people who lack 'litigation capacity'.  In plain English, when a person lacks the mental capacity to give a solicitor instructions, someone is sought to instruct them on their behalf - a 'litigation friend'.  A 'litigation friend' is often the person's next of kin, but sometimes there will be no such appropriate person, or there is a conflict of interests, or they are unable or unwilling to do so.  In such cases, the OS acts as their litigation friend as a 'last resort'.  The OS is appointed by the Lord Chancellor, and is assisted by a team of government lawyers - 'case managers'.

The OS is usually contacted if a solicitor has concerns that the person they are representing may lack the mental capacity to instruct them.  Capacity to litigate used to use a test set out in the case Masterman-Lister, but now uses the test of capacity set out in s3 Mental Capacity Act 2005.  At times, as you can imagine, it can be quite contentious whether a person lacks the capacity to instruct a solicitor, but I'm not going to discuss this aspect of litigation capacity today.  When the OS acts on behalf of people, he rarely deals with them directly - usually they will mostly deal with their own solicitor, the difference being that the solicitor has to take instruction from the OS and not the client themselves.  I should say, that many of the considerations I discuss below will be true also for children - who are barred by law from conducting litigation without a litigation friend.  (To Kinnock's 'I warn you not to fall ill, I warn you not to get old', we might add 'I warn you not to be young' these days).

What does all this have to do with the legal aid consultation?


When a person lacks litigation capacity, it is unlawful for them to conduct litigation - either to bring a case, or to defend a case.  The legal solution to this is to appoint a litigation friend (be it the OS, or another person or organisation).  The problem is that the role of a litigation friend is to instruct a solicitor, not to represent the person themselves.  This means that money has to come from somewhere to pay the solicitor.  To put it simply, whereas if somebody with litigation capacity could, at worst, be forced to run their own case without legal representation (a 'litigant in person'), this option isn't available when a person lacks litigation capacity.  In effect, if there is no money for the solicitor, either the case can't be brought on behalf of the person who lacks mental capacity, or a case cannot proceed against them if brought by another party.

What kinds of cases are we talking about?  In the annual reports of the OS they usually list the kinds of cases they get involved in.  These include: personal injury claims (including catastrophic injury), possession orders, probate issues, judicial review of decisions of public authorities (including care and treatment decisions), displacement of the nearest relative under the Mental Health Act, divorce proceedings, child protection proceedings, welfare decisions under the Mental Capacity Act, etc etc.  One particular case stands out to me, contained in the annual report for 2010, where the OS intervened after a hospital trust had decided to withdraw artificial nutrition for a man who had been unconscious following a road traffic accident for four years.  Under the Mental Capacity Act this decision to withdraw life-sustaining treatment should have been brought before the Court of Protection, and by the time the OS had intervened nutrition had been withdrawn for three weeks.  The Court ordered a resumption of feeding and reduction in sedation, and it was reported that the man is making a recovery which may in time allow him to drink and feed orally, and speak.

The overarching problem, is that the legal aid proposals rest on a set of assumptions that people will have alternative means to access justice than through legal aid, which are simply unfounded where people lack litigation capacity.  They are quite probably unfounded for lots of people who wouldn't need a litigation friend, but I'm going to focus on the capacity issues here.

Alternative dispute resolution and litigating in person are not viable options for people without litigation capacity

The consultation proposes using 'Alternative Dispute Resolution' (ADR) instead of courts wherever possible.  But as the OS's consultation response points out 'those who lack capacity are in need of special protection and are unlikely to be able to resolve their disputes in a fair way with a just outcome through ADR'.  He goes on to say:

A person who lacks capacity to conduct proceedings will be vulnerable both to their illness or disability going unrecognised or insufficiently recognised in this context (in particular by the person facilitating the alternative dispute resolution, although it may be known to the other party), and to misinterpretation of their actions.  

Furthermore, use of ADR where a person has limited capacity may be a false economy, as decisions reached through ADR may later be found to be unsound, and additional public funding may be required to reach a new decision.

Litigants in person


The legal aid consultation also proposes to remove assistance in areas where it thinks either people can seek advice for themselves from advocacy services, or will be able to represent themselves as 'litigants in person' (for instance, at tribunals).  The problem, as the OS succintly puts it, is that 'there appears to have been no consideration of the ability of those persons to represent their own case... If the person lacks litigation capacity (in other words the capacity to instruct a solicitor to act on their behalf), how will they have the capacity to conduct the litigation in person?'  Furthermore, how will their lack of litigation capacity be picked up, if they can't afford to approach a solicitor in the first place?


People whose property exceeds the means-test may be unable to release their assets to fund representation

The same means-testing rules for legal aid apply to people who lack capacity to litigate.  However, Catch 22 situations can occur if a person has the financial means, but also lacks financial capacity (the mental capacity to make major financial decisions).  If they lack financial capacity, they may be unable to authorise payments to the solicitor, or to release the capital required through, e.g., sale of property.  These situations have been referred to in past annual reports by the OS, and can be fairly intractable.  They are likely to occur with increasing frequency if the income or capital limits are reduced, or more areas are subject to means-testing.


No funding for 'Simple money claims' ignores importance of compensation for catastrophic injury

The legal aid consultation proposes that public funding will not be provided where the issue at stake is a 'simple money claim'.  The OS points out that for many of his clients these 'simple money claims' follow a catastrophic injury, and supply the financial means to pay for the nursing, care and treatment they may need for the rest of their life.  Denying them public funding for personal injury or clinical negligence claims may mean they are unable to make a compensation claim at all, which in turn may mean that the costs of their care would have to be born by the state.  The OS is quick to link this issue into the declining provision of state funded care: 'State provision is a safety net, but does not provide the standard of care which a court’s award of damages will provide, and is itself being cut back.'


In relation to clinical negligence, the OS makes this further comment:

These are generally cases where the victim has suffered because of failures by the State in its duty of care to citizens.  The State should provide the means whereby the individuals concerned, in particular those who are unable to present their own case, should be able to obtain redress through compensation, to put them back in the position, as near as possible, that they would have been in absent that failure. 

The Law Society has expressed concerns that withdrawing legal aid for compensation claims 'will leave pharmaceutical companies beyond the reach of the law.'  To this, we might add, any professional who neglects people with impaired mental capacity.

Divorce cases may reach stalemate


The OS states that 75% of the divorce cases he is involved in are legally aided.  He points out that in these cases family members are especially reluctant to act as litigation friends, perhaps for obvious reasons.  The proposals state that parties should seek alternative funding or use their property to fund legal representation for divorce cases, but 'this option is not available to many of those for whom the OS acts as litigation friend' due to a lack of financial capacity.  Without legal aid or alternative means, it may not be possible to secure legal services and thus:

If a litigation friend cannot be appointed (because there is no security for the costs of legal representation), then the litigation cannot proceed as a protected party, by definition, cannot act as a litigant in person. It follows that the parties are unable to obtain a decree of divorce or resolve the financial issues arising of the marriage breakdown. 

Both parties, then, will remain married unless funds can somehow be found from elsewhere to secure legal representation.

Increased exposure to financial abuse

By excluding claims for the recovery of property from the scope of legal aid, people may be left at significant - and irremediable - risk of financial abuse.  The response states:

The cases proposed for exclusion will leave the vulnerable without an effective remedy to recover assets rightfully belonging to them... The Official Solicitor acts as litigation friend for vulnerable property owners whose property has been transferred to others in circumstances where that person does not have the requisite capacity to understand the nature of the transaction. In such cases the vulnerable person (usually learning disabled) has been induced to transfer their property either in whole or in part to another person (sometimes a family member, sometimes just someone who has taken advantage of their vulnerability). Legal aid has funded the action for the transfer to be set aside.

And again, the OS reminds us, the state might end up picking up the costs in indirect ways:

Such transfers may be for the direct benefit of the person who has taken advantage of the vulnerable person, but may also arise as a result of relatives seeking to ensure they have the benefit of the property as opposed to its being used to fund the vulnerable person’s future care costs. As a result those care costs have to be borne by the State. Funding authorities such as local authorities frequently approach the Official Solicitor to act as litigation friend in such cases and recover property fraudulently transferred.

The response stresses that there may be no other ways for a person to recover their assets once transferred to another party, 'almost by definition the vulnerable person has no other assets and is therefore totally reliant on public funding to recover their property.'  It goes without saying that this will leave people without litigation capacity, or capacity to conduct proceedings in person, extremely vulnerable to financial abuse.  There may be little that could be done to rectify a situation once property has been transferred.

What about Court of Protection and deprivation of liberty cases?

The legal aid consultation is pretty vague about what will happen to public funding for 'best interests' hearings in the Court of Protection. The OS's view is that 'it is essential that legal aid should remain available for ‘P’ and other parties in the Court of Protection in proceedings covered by the authorisation. In those proceedings ‘P’s capacity and best interests are at issue.'

Currently legal aid is provided for anyone who is subject to a deprivation of liberty authorisation under Schedule A1 of the Mental Capacity Act (the 'safeguards' or the 'DoLS') and who wishes to appeal that authorisation under s21A.  This legal aid is non-means tested, as it is for their 'nearest person's representative', should they want to make an appeal.  The OS finds that it is not clear that this legal aid will remain non means-tested, but in any case, he points out, people who are deprived of their liberty in other settings are already only entitled to means-tested legal aid.  This means, for instance, if a person is de facto deprived of their liberty without authorisation, or in a setting where the safeguards do not apply (e.g. supported living), it may be very difficult to bring their case before the court.  This is particularly so if they lack financial capacity.  Cost may also be a deterrent to family members taking action on their behalf.  This places supervisory bodies and managing authorities who fail to seek authorisation when they should under very little pressure to comply with Schedule A1.

Withdrawal of assistance for those in debt

The OS goes on to discuss cases where a person has become indebted as a result of their lack of capacity.    He cites examples of where people who lacked the capacity to manage their financial affairs were judged, incorrectly, to have fallen into debt because they could not, for instance, respond to correspondence.  In one example a person was declared bankrupt and their assets were seized on the (incorrect) basis that they owed HMRC considerable back taxes; only through the involvement of the OS was the situation resolved.  The withdrawal of legal aid for anyone falling into debt is likely to be keenly felt in these times, but for people without litigation capacity it is unlikely they will have the ability to resolve their situation by any other means.  Indeed, if they lack financial capacity as well, they may be legally unable to use their assets to pay back any debts incurred.  It seems to me quite possible too, that people may be especially at risk from predatory lenders; the fact they lacked the mental capacity to agree to a loan would only have traction if the case could come before a court, the very possibility that is being withdrawn here.

It's interesting to note that much of the rhetoric underpinning this aspect of the proposed legal aid cutbacks rests on a belief that public funds should not be used to rectify situations which someone has brought upon themselves.  Aside from a refusal to acknowledge that social conditions that might contribute towards debt, there appears to be a total failure to recognise that people may end up in debt as a direct result of mental health problems or mental disorders.  The OS is quick to remind the government that this may, in any case, be a false economy: 'the loss of the vulnerable person’s assets as a result of an injustice that could have been rectified had public funding been available will add to further calls for financial assistance from the State on the part of the vulnerable person.'

Access to justice?

There is a great deal more detail in the response than I can do justice do here.  The overwhelming impression one has when reading it, is that the legal aid proposals were drafted with absolutely no consideration for the complex legal and social issues facing those without litigation capacity.  It is no small thing to say that they might find themselves, in a wide range of circumstances, with literally no effective remedy for any injustices or dangers they face.  And without access to justice, it will be open season for those who would take advantage of them.

Article 6 of the European Convention on Human Rights states:

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing

It is abundantly clear that if these proposals go ahead without further recognition of the predicament of those who lack litigation capacity, their Article 6 rights will be seriously infringed.  I like to think it is possible that the government's failure to address these issues in the legal aid proposal was simply an oversight; an embarrassing  and telling one, no doubt, but one which might be rectified before the government makes it's final decision.  Surely, it would take a very cynical government indeed to trample over the rights of the most vulnerable, whilst removing the very means to defend them?


Links: More reading on legal aid

• iLegal is collating all the responses to the legal aid consultation here
• Justice for All and Sound off Justice are campaigning against the legal aid cuts
• The Legal Action Group seek to 'promote equal access to justice for all members of society who are socially, economically or otherwise disadvantaged.' They also have a blog, here.
• Or follow them on Twitter: @JusticeAll, @ilegalbytes, @LegalActionGrp, and @soundoffjustice

(If I've left anyone off, apologies - please send me a message/email/comment and I'll add to the links)

*I'm not linking to paywalled content - I read the interview in a hard copy.

Afterthoughts on 'Open Justice'

I wrote a few weeks ago about some of the specific issues for improving transparency in the Court of Protection.  Since then, I’ve become aware of a veritable blogswarm of discussion and debate about Open Justice in a wider sense.  Various recent developments have contributed to this online debate: tweeting being permitted in the Supreme Court, the Court of Protection opening its doors to journalists in several recent cases (reported here, here and here), the use of parliamentary privilege for an MP to reveal the use of super-injunctions and hyper-injunctions by the courts, and a recent speech (pdf) entitled 'Open Justice Unbound' by  the Master of the Rolls, Lord Neuberger.  I feel very strongly that justice in the UK is ripe for improvements in the transparency of the courts, and accessibility of information.  If this truly is the government of transparency and accountability, perhaps they'll listen to this growing clamour and turn their attentions to the Justice system.   I want to offer a few follow-up thoughts from my earlier post, and also provide some more links to the excellent articles out there on this topic.

Impenetrability of legalese to litigants and lay readers

Adam Wagner at the ever informative and readable UK Human Rights Blog wrote a post about the open justice agenda today, and if you have any suggestions or views please add them to the comments under his article.  The suggestions in his article and the comments range from 'accessbility' in terms of access to the raw text of judgments, court transcripts, statute law (more on this below), to issues of  'accessibility' in terms of readability and comprehensibility of judgments.  In addition to Wagner’s suggestions on judgement writing, I would add that given increasing numbers of litigants in person using the courts, officials need to consider making forms and correspondence more easily understood by the lay public.  If you've ever tried to make an application to the Court of Protection yourself you'll know what I mean (exercise: imagine being faced with this list if you wanted to make an application, then try to understand any of the forms themselves).  In this rather sad case from the Court of Protection, there's an interesting few paragraphs from 50-52, in which it transpires that a family failed to make an application to the court to set aside an order which had removed their father from their care (on the basis of safeguarding allegations, which later proved false), because they didn't understand the letter.  The council had applied 'without notice' to present the safeguarding allegations to the court and apply for permission to remove the father from their care, and they were not present at the initial hearing to defend themselves.  The judge criticises the use of legal shorthand in court correspondence when 'the order is in all likelihood to be served upon lay parties who do not have representation and lack any legal background' [56].

Wagner also discusses the possibility of courts issuing short press releases or summaries to accompany judgments.  This would doubtless be welcomed by anyone without access to Lexis, Westlaw or law reports, who often have to wade through an entire judgment to find the outcome and the basis for any decision.  It might also enhance the quality of media reporting of law which - in relation to the Court of Protection at least - is in my view often shamefully inaccurate and lacking in informed analysis.  It could help also help court users themselves; it is no justice if the courts users don't fully understand the reasons underpinning the judgment in their own case.  One of the suggestions in the comments below Wagner's blog is to provide a CD recording of the court case to all litigants, which would probably be welcomed by many... but would the courts be prepared to relinquish control to this extent on what is reported outside the court?

Recordings and broadcasts of court proceedings

In a really interesting post, journalist and information activist Heather Brooke writes about her experiences of trying to record, for reporting purposes, in an information tribunal.   She writes

Anisa Dhanji, the judge, said she was concerned with the hearing being recorded. ‘Usually such requests are made in advance so the tribunal can maintain the necessary degree of control over the transcript.’

The request to record the ruling was refused (in a separate, unrecorded, ruling).  Brookes goes on to say:

“Control” is exactly what a court shouldn’t be exerting. Once it is decided that it is open, there should be no restriction on how that open hearing is processed. She went on to say that she’d allow me to record now but I’d have to wait for a future ruling before I could “use” the recording.

To a certain extent I am inclined to agree, given that most courts are in any case open to the public.  I can certainly think of cases where I’d like to have access to a recording or the transcript to review what evidence was actually presented before the court.  Cases before the ECtHR are broadcast online, and Wagner discusses the possibility of televising Supreme Court cases here.  I can definitely see that there are strong public interest arguments in making available as much information about how law is made in the higher courts as possible.  As for tribunals and lower courts though, I’m less sure. 

How you feel about making available recordings and transcripts of court proceedings probably depends on your perspective.  It would certainly open up judicial decision making to much greater scrutiny, and you don’t have to be an enormous cynic to imagine this may be one reason the courts are dragging their feet on this - but surely our judges are robust enough to take criticism and stand by their decisions?  At present, (for most of us mortals, outside the chatter of the Inns of Court) all we can rely on for information about a case is contained within a judgment.  Sometimes there is information left out of judgments that we might have felt cast a different light on a decision, but we have no access to the ‘raw’ basis of the court’s decision. I can think of several cases where I do know a little more about the background and am surprised this material is not in the judgment. 

Audio-recordings and broadcasts might also open up legal professionals themselves to greater scrutiny, and whilst some confident souls might welcome this, it’s easy to see why others might not.  I can imagine a lot of legal professionals would detest their peers being able to watch or hear their performances, pick apart aspects of the case they’ve presented badly or left out altogether...  And there are other professionals’ whose work might be open to greater scrutiny.  There has been agitation for quite some time – at least in the family courts – for more information about the identity and evidence of expert witnesses to be made public.  I don’t think anyone is proposing we televise family court hearings, but I can imagine that in personal injury litigation, for instance, expert witnesses might be more reluctant to be instructed where they thought their evidence might be broadcast on television or the internet.  Of course, this might lead to improvements in the quality of evidence that was used, but it might also lead to a lack of professionals brave enough to take the stand.  I’d like to think that any professional giving evidence in court would be prepared to publicly stand by their comments, but I can also understand that it can be a daunting experience.

And then there’s the litigants themselves.  It’s not just the family courts which hear very personal aspects of people’s lives.  I admire the bravery of Elaine McDonald, bringing a case against the Royal Borough of Kensington and Chelsea when they withdrew her overnight support to access the toilet, forcing her to rely on incontinence pads (despite being continent).  How would she have felt, I wonder, giving evidence on such a personal matter if her case were televised or audio-recorded, and potentially broadcast elsewhere?  Given that the courts are (in the main) open, is it possible to maintain that they might have rights to privacy that would be infringed if hearings were broadcast or audio-recorded?  Article 8 rights to privacy are qualified, and public interest arguments in favour of open justice might well outweigh the privacy rights of litigants, but does this alter with the status of the court?  Could we, for instance, maintain that in tribunals the privacy of litigants should be protected, but in the Supreme Court the balance is in favour of transparency?  And would the issues be any different if we were talking about transcripts, and not recordings?  Certainly, recordings may be likely to be preferred as they are much cheaper than transcripts (see Binary Law, Heather Brookes, and Judith Townsend’s blog for discussion of reasons for the costs of transcripts).  But recordings, unlike transcripts, are in much greater danger of being used for entertainment or political purposes which might sometimes run counter to the spirit of open and fair justice systems.

Getting information out of the court services and public authorities themselves...

In her article Brookes also raises the infuriating difficulty journalists (and researchers) have in getting hold of information about court proceedings.  Here’s a short list of research projects and requests for information I’ve had to abandon or seriously alter due to the reluctance of Her Majesty’s Courts Service, or other public authorities, to collate or share information about their legal activities.

•  I wanted to find out about the kinds of cases were being brought under s44 Mental Capacity Act 2005 and the defences relied upon.  I tried the courts service, who didn’t seem to collect any detailed information centrally.  I was advised to search local papers (for the entire country) and look for references to court proceedings there...  And then, once you’ve found your news story, you can approach the court in question, ask permission and hand over hundreds (if not thousands) of pounds to a private copyright firm to type up a transcript.  Apparently this was to do with data protection, but it’s clearly a principle of data protection that eludes the media that reported on the individual cases and the copywriters who are happy to give me a transcript if I hand over the dough. (Incidentally, the CPS weren’t much more help, they only keep a record of the number of cases brought – not those that are successful, nor would they tell me what courts/regions to look in...)
• Trying to find out how many deprivation of liberty authorisations have been successfully appealed by detainees or their families.  HMCS were able to tell me that there were 38 cases brought before the Court of Protection under the DoLS in England and Wales, but they couldn’t tell me who brought them (ie. was it detainees/representatives, or the supervisory bodies themselves referring the cases to the courts?).  Nor could they tell me the identities of the public authorities in question whose deprivation of liberty authorisations had been challenged (or, in the alternative, who had referred cases to the court themselves).  Nor even whether cases concerned local authorities (ie. detention in care homes) or PCTs (detention in hospitals).  This is particularly interesting, as I was only after the name of the public authority, from which it would surely have been impossible to ‘triangulate’ the identity of the private parties to proceedings.  This left me the very time consuming task of writing to every single local authority in England to ask whether they had had any DoLS authorisations challenged.  The results have been absolutely fascinating and not a little astonishing... but more on that another time.
•  Before I had fully digested the import of s32 Freedom of Information Act 2000, I tried to use the Act to get public authorities to part with the written submissions they had made in various cases of interest to me.  Wouldn’t it be interesting to see what Birmingham City Council had to say in the case of Yl v Birmingham City Council (2007) (more interesting still, what the National Care Association had to say!)?  I’m no FOI law expert, but I am puzzled as to why their court submissions are exempt from the general rule of transparency.  Their legal actions are funded out of public money just as much as any other activities they undertake, and should (in my view) be just as transparent and accountable to the public.

Super-injunctions, hyper-injunctions and Hemming’s ‘secret prisoners’

It doesn’t take a legal expert to deduce that it might run counter to principles of fairness and open justice for our courts to issue injunctions against media outlets printing information that might be in the public interest, then making that a ‘super-injunction’ by banning media outlets from even reporting that they’ve had an injunction slapped on them, then increasing that to a ‘hyper-injunction’ by banning information-holders from discussing their silenced predicament either with a lawyer or their MP...  However, I’m no expert on information law, so I’m just going to point you to some excellent articles on super-injunctions and hyper-injunctions by the redoubtable Charon QC and Anna Raccoon.  Charlotte Harris at Inform writes about Lord Neuberger’s expressed concern at these injunctions, mentioned in his recent speech (pdf).  Gossip lovers out there might also like to check out this post by Guido Fawkes...

The recent furore was sparked off by MP John Hemming using parliamentary privilege to reveal the existence of said injunctions in parliament (see Hansard).  One aspect of his speech that has been less reported is Hemming’s allegations that social services departments and the family courts have been issuing their own injunctions against speaking to lawyers and MPs.  He writes:

...it is a dreadful abuse of state power to threaten to remove a child from the care of the parents because they deign to speak to their Member of Parliament. That happened to one of my constituents...

Hemming cites the Family Proceedings (Amendment) (No.2) Rules 2009, which state that a ‘party or the legal representative of a party, on behalf of and upon the instructions of that party, may communicate information relating to the proceedings to any person where necessary to enable that party...by confidential discussion, to obtain support, advice or assistance in the conduct of the proceedings’.  That is to say, if they need to speak to their MP to obtain support, nothing in the family court rules prevent them from doing so.

And then there is the Gilliland case which, on the surface at least, bears some parallels with hyper-injunctions inasmuch as a person cannot instruct a solicitor on the matter in question.  There is a lot to be said about issues relating to ‘capacity to litigate’, but I’m going to wait until the ECtHR have delivered their verdict on Stanev v Bulgaria before I do so, as it deals extensively with this issue (as well as Guardianship, detention in social care settings, positive obligations to mitigate the need for detention – a very important case, which is doubtless why it was heard by the Grand Chamber, and why they’re still deliberating...).  I don’t think it’s particularly helpful for me to speculate what’s going on in the Gilliland case, there being so little useful information about it in the public domain, but I am intrigued by Hemming’s comments about ‘secret prisoners’:

I have asked for an inquiry into all the secret prisoners we have. There are a number of different types of secret prisoner. There are people such as Matthew Hawkesworth; I cannot work out why he is in jail, but he is locked up... Yvonne Goder was jailed in secret for a short while last year. Her committal hearings and various discussions were all held in secret. She believes that three properties were taken from her family. This is a Court of Protection matter. On 17 January 2000, the capacity of her mother Efi Goder-Marsh to manage her own affairs was taken from her and given to her husband, who denies ever getting it... I have the transfer deeds; each was signed differently by somebody in an illegible manner, claiming to be Efi Goder-Marsh's husband. It looks different and he denies signing them. The documents were all witnessed by somebody in a particular solicitors' firm, with which I am in communication. Here is the difficulty. As it is a Court of Protection, the person cannot be identified without matters going into parliamentary proceedings. That causes all sorts of problems in terms of investigation. I hope that that will not be a problem in future. She is another secret prisoner; what was the situation there? Why were there secret committal hearings? It is a contempt issue.

I have no doubt that throughout the UK there are ‘secret prisoners’, as Hemming calls them, but I’m not sure at all sure what kind he refers to here, or what kind of inquiry he is calling for.  I'm not sure either whether he means that 'secret' courts are in contempt of parliament.  If anyone would like to enlighten me, I’d be fascinated.  It sounds as if some of these cases relate to deprivation of liberty authorised under the DoLS or the inherent jurisdiction of the Court of Protection, but it’s not terribly clear.  I hope this doesn’t sound trite, but I wonder whether the ‘secret prisoners’ that we should be really worrying about aren’t the ones that get before the courts at all, but the (likely tens of?) thousands of cases where people are de facto deprived of their liberty without authorisation or hearings before the courts at all.  In any case, if Hemming thinks there should be an inquiry into the operation of the deprivation of liberty safeguards, I’d back him all the way.  The problem is that I don’t find his exercise in transparency terribly transparent in itself...

Database and technology wish list

Just to finish off, I’d like to reiterate my frustration that the only copies of legislation made freely available online are not updated when statutes are amended, leaving people without pricey subscription services in the dark as to parliament’s most recent intentions.  I’d like to put out a plea to Bailii and the courts services to a) get more Court of Protection case law online and b) consider improving how this information is organised.  At present, if you know the name or details of a hearing, it’s not too difficult to locate it, but it would be great cases were indexed in the same way as Westlaw in terms of what cases they cite, or cite them.  What statutes they involve.  As a next best option, to consider making them searchable through Google.  As Adam Wagner pointed out on Twitter today, Google already indexes all American legal judgments, it’d be fantastic if we had that here.  For people outside the loop, like myself, it’d also be handy to have a case tracker, which told you which cases were coming up (with bare facts about them – along the lines of what ECtHR provide), whether decided cases were being appealed and – most importantly perhaps – what reporting restrictions were placed on them.

I’ve written far more than I mean to, apologies, as Blaise Pascal once said, “I would have written a shorter letter, but I did not have the time”.

CQC's (very slim) first monitoring report on the DoLS

The CQC has a legal duty to monitor the deprivation of liberty safeguards.  Regulations give them powers to visit hospitals and care homes, interview patients or residents, and inspect the paperwork in relation to anyone who is deprived of their liberty under the safeguards.  They are required, by law, to produce an annual report for parliament, as soon as possible after the end of the financial year  'when requested to do so by the secretary of state'.*  The safeguards came into force in April 2009.  It is now March 2011, and this is the first report we have seen by CQC (here).  There have been other reports, though not by the CQC.  The NHS Information Centre produced what is essentially a statistical report into the DoLS last year (here); the report told us that there was very low and uneven uptake of the safeguards, but offered little analysis of why that might be the case.  The Mental Health Alliance report last year (here) helped to fill that vacuum of analysis; they drew from their considerable pool of experience of their members to paint a picture of a legal framework that had ‘barely begun to function’.  Key problems identified by the Alliance included poor understanding of the safeguards by both managing authorities and supervisory bodies, and in some cases outright resistance to their application or manipulation of their provisions.  They stressed that there were many disincentives to their use – excessive bureaucracy, unwelcome additional scrutiny of care practices, empowering detainees and relatives who might object to care plans – coupled with very little real threat of litigation if they were not applied, or applied inappropriately.  Some might say that this was a situation when a regulator, who had oversight not only of the managing authorities of care homes and hospitals, but of the supervisory bodies themselves, could have a powerful impact on compliance.

Balancing transparency with 'secrecy' in the Court of Protection

There probably aren’t many people who want to know what ‘goes on’ in the Court of Protection more than me; it’s what I spend much of my time trying to fathom.    An outsider would be forgiven for thinking that this branch of Her Majesty’s Court Service doesn’t feel that case law in this tangled and difficult area is anybody’s business but it’s own.  The reasons for this appearance are complex though, and not necessarily the fault of any individuals working within the courts. I think it’s important to draw a distinction between different ways that greater ‘transparency’ could be achieved; some might be more helpful than others.

Making more judgments available

First, and most pressing from my perspective, is the issue of making judgments available.  As a researcher, I rely on them to see what the law says.  It’s not just law geeks like me though, practitioners desperately need case law to guide them in the tough everyday decisions they make.  It’s not always easy for them to find them - there are ways to find some, but they’re not always obvious, and others never surface at all.

This seems to me to tie into a wider problem about ‘Open Justice’ in this country.  It’s an astonishing fact, that I only became aware of when I became a legal researcher, that it’s terribly difficult for people without expensive subscriptions to services like Westlaw and Lexis to actually found out what the law says.  First there’s the incredible state of affairs that although the government puts statutes online at legislation.gov.uk, it doesn’t necessarily update them when they are amended by future laws.  If you don’t believe me, try looking for the deprivation of liberty safeguards in the Mental Capacity Act 2005.  They should be at the bottom, under Schedule A1 – but they’re not there (or not on the date of writing, readers of the future!).  Here they are though, under Schedule 7 of the Mental Health Act 2007; you’ll notice that the changes to the Mental Capacity Act brought in by this bit of the Mental Health Act 2007 haven’t been updated on the Mental Capacity Act itself.

Case law isn’t much better.  Thanks to the sterling work of the Institute for Advanced Legal Studies at the University of London, all case law from the Court of Appeal and most from divisions of the High Court are available from Bailii.org.uk.  The website looks rather unassuming, but it’s revolutionary in terms of opening up justice; and in my view it’s a great shame that the courts themselves haven’t taken the initiative on doing this.  There’s a great article here on the Binary Law blog about some of the problems faced by Bailii and others in getting the judgments online.  One of the most interesting facts in this post is this:

There is still a restriction on the number of English cases from divisions of the High Court which can be added to the BAILII database, arising from the fact that the shorthand writers who transcribe judgments which have been given verbally (as opposed to those handed down on paper) own the copyright in the transcribed version of the judgment. This prevents the judgment being added to the BAILII database without the consent of the shorthand writer. BAILII, being a free website, has no funds with which to acquire a licence to copy and display these transcripts.

Now, Bailii has added a Court of Protection section to its pages here.  There’s about 9 cases from 2009, 20 from 2010, 2 (at the time of writing) for this year.  In an article I read this morning in the brand new Elder Law Journal (it’s really good – I recommend it – you can order a free copy on their website) District judge Alex Ralton says the Court of Protection receive 19,000 applications in 2009; 75% of those related to property and affairs, and 25% to personal welfare.  You might be forgiven for asking – where on Earth are they then?!

To be realistic, it would serve nobody’s interests if the court made all these judgments publicly available.  Imagine the work taken just in redacting them all, so that people’s names and identifying details were masked?  And who would want to plough through them all in order to find the ones related to their own areas of concern?  Most case law is made by district judges, and is likely to be a relatively uncontentious recital and application of the law.  But there are areas which are still contentious – the deprivation of liberty safeguards are a good example of this – where case law still struggles to make it onto the Baillii website.  Quite a few of them can be found on the Mental Health Law Online website, but even this list is not guaranteed to be comprehensive as it relies on solicitors uploading them themselves (I’m not quite sure why they can be uploaded onto this website and not Bailii – anyone any ideas?!).

One reason why judgments may not be published is that they may not all be suitable for public consumption. Not because they mask anything sinister, but because the judges of the Court of Protection are extremely, extremely busy and under resourced.  Reference to this is made by the Office of Court Funds Official Solicitor and Public Trustee in their report, the Court of Protection report itself, and comments to this effect are made in various judgments.  Judges who have a great deal of cases to sit through may well issue judgments that give directions so that those involved in welfare know what they need to do, but they may not spend so much time on the more theoretical questions like ‘what makes this case a deprivation of liberty?’ or ‘what are the wider principles we should apply to best interests decisions’.  Because mental capacity law is highly fact sensitive it might be confusing to publish these judgments if people were to extrapolate from specific situations to other contexts where they don’t apply.  This may be one reason why the courts themselves have refrained from allowing them to be more widely circulated.  To my mind, this is a real shame, but it’s not straightforwardly the ‘fault’ of the judges – it is to do with wider issues of resourcing the courts themselves. Something that only the government can really remedy.

Allowing the press in

There has been an increasing clamour from the press to ‘open up’ the Court of Protection.  In some respects I have some sympathies with their arguments, but in many I don’t.  The recent judgment of Mr Justice Peter Jackson in London Borough of Hillingdon v Neary gives a great discussion of some of the key issues, and I really recommend reading it.

A general argument in favour of allowing the press to watch proceedings is that ‘there is a public interest in the work of the Court of Protection, and the way it uses its considerable powers to make orders which affect the lives of vulnerable citizens’ [7].  This relates to the wider perception of the Court of Protection in the public domain.  I often feel quite protective of the Court of Protection when I hear the way it is described in much of the popular media.  But misconceptions and suspicion will thrive unless people have a clearer idea of what the court does.  I feel pretty sure that if the public did have a better idea of what went on in the court, what reasoning decisions were usually based on, a lot of these suspicions would subside.  In part, the courts themselves – including the judges – perhaps need to make stronger efforts to engage directly with the press in explaining their reasoning.  I read articles, speeches and other works by judges in academic journals and at conferences which contain important principles around welfare and dignity and placing limits on the paternalistic interventions of the state that few would disagree with – but these don’t filter down to most people.  On the whole, Judges tend to shy away from media attention, and they have good reason to be wary of being seen as ‘political’ or ‘fame seeking’ etc, but if ordinary people are to trust the courts they will need some kind of insight into what they do.  Only the courts can provide that, since they direct what can be said about their work.

In some (hopefully rare) cases families actively want the press to sit in on cases because they want the world to know about any wrongdoing that has been found to occur by other public authorities involved in their lives.  This is a tricky issue, and one that the courts must be careful about.  A first point is that I would be extremely reluctant to have the media sit in on cases where families don’t want them there.  For any families who don't seek their presence, especially those who are litigants in person, it could be extremely daunting to have the press attend hearings - it could well leave families more reluctant to give a full account of what occurred.  Another factor is that a good many Court of Protection cases include very, very sensitive situations, where it’s simply not appropriate that the individuals involved are identifiable and their ‘dirty laundry’ is washed in public, as it were.  Think of the background to the MEG & MIG (P & Q) case – the history of neglect and abuse did not only touch upon the lives of the individuals the case concerned – but their wider families too.  It would clearly be unfair for them to be identified.  There’s a fine balance, between allowing the individuals and families concerned to tell their stories (they have a right to freedom of expression), but not allowing the fear that other, more painful, stories will be exposed to a wider public to prevent them from accessing justice when they need it.

Having said all that, if the courts were to systematically allow the press to sit in where families were angry with public authorities, the resultant press attention would be heavily biased against public authorities themselves.  Clearly this is undesirable for public authorities – and may in fact discourage them from referring cases to court when they should.  It would also feed an unfair perception against their work.  Local authorities in particular intervene at times because the families themselves are not meeting the needs of their relations; in some cases, situations amount to outright neglect and abuse.  We hear a lot in the press about cases of local authority wrongdoing – but for entirely good reasons, local authorities are unable to trumpet when they have intervened because of wrongdoing by families.  It seems to me that it would be inappropriate for local authorities to ever be able to tell 'their side' in these safeguarding cases, no matter how frustrating that must be for professionals involved.  The responsibility for balanced reporting must lie with the press - they must ensure that the public is are aware that sometimes intervention in family matters is appropriate, just as the press would acknowledge it is in child protection.

It would also be undesirable in a wider sense if the press only ever report on cases where public authorities have acted inappropriately.  Serious damage could be done to the public’s faith in them more widely.  I was really frustrated to see in the Independent’s reporting into the Neary case that the lead article said:

Mr Neary's mistake was to turn to Hillingdon council in December 2009 when he was suffering from flu-like symptoms. He asked them to take his son into a residential care home, supposedly for just three days to give him respite.

Using respite services when you need to is not, and should never be reported as, a mistake.  Irresponsible throwaway comments like this cause people to lose faith in the local services they rely on to ensure their loved ones, or themselves, get adequate support and care.  What would have been far more helpful in this instance would be if the papers informed the public about the mechanisms that are available to families to resolve disputes, not pin the blame on respite services.

In general, I have to say, I have been really, really disappointed with the quality of reporting of Court of Protection cases.  From petty mistakes, like papers saying the Court of Protection was set up under the Mental Health Act 2007 rather than under the Mental Capacity Act, to wider misrepresentations of its powers and actions.  I don’t mean to single out Deborah Orr, because I’ve seen very few articles that did report particularly accurately, but some of the comments she made in this article are a good example of the way journalists generally don’t seem to understand the very way the court works.  Orr writes of this case:

In both P's and Alan's cases, the judge, if not the jury, is still out. But a couple of things seem extraordinary. First, it would have been pretty easy to check whether Alan was actually at risk of disease, by checking with his partner. Second, it seems accepted that there is no question that P's partners could or should be controlled.

If Orr had read the judgment carefully, she would have seen that the reason the judge did not consider whether Alan was at risk of infection by his partner was because the case law (in his view of it) directed him to look at the question of whether Alan could decide for himself about sex – not whether sex was in his ‘best interests’.  It would be far beyond the court’s (or the local authority's) powers to direct that another party, not represented at proceedings, were tested for STD’s solely for the benefit of another party.  Likewise, under what jurisdiction would the Court of Protection be able to direct that P’s partners (who may have capacity, or may not) be ‘controlled’?  Orr is right that, on the surface, it might seem extraordinary to some – but surely the point of responsible journalism is to look at what underlies these ‘extraordinary’ appearances and report on that as well.

Someone commented to me on Twitter recently that ‘confidential’ would be a preferable word to ‘secretive’ in describing the Court of Protection – and I agree with that.  The 'secrets' the court keeps it does with good reason.  All the welfare decisions it deals with concern perhaps the most private aspects of anyone’s lives.  Why should these aspects of people’s lives be paraded before the press for the sole reason the person concerned lacks mental capacity?  Most people would be horrified to think that the details of their sex lives, for instance, were to be discussed in front of a court, and adding journalists into the situation hardly makes the process more dignified.  My tentative view – and I’m open to argument on this – is that I see no good reason why the press, if they are that interested, cannot rely on judgments like the rest of us in the vast majority of cases. Even then, there is clearly an issue that those who know the individuals involved may well be able to identify them from the judgment and learn more than they need to know about very personal aspects of that person's life.  But a balance has be brought somewhere between transparency and privacy, and in my view publishing judgments with identifying features redacted brings us closer to it than open court.

I don’t think the courts are ‘secretive’, meant in a pejorative sense.  Aloof, distant, slow to acknowledge and respond to public and professional need for more information about their activities – yes.  But sometimes there are some secrets that are best kept just that, in the interests of all.

Steven Neary in the headlines

The Court of Protection allowed the press in for Steven Neary's hearing on Tuesday.  The Independent made it their headline article, and claimed a victory for press freedoms.  I think it is very important that this case is reported - if only because it may raise awareness of problems with the deprivation of liberty safeguards. The Independent's 'victory' didn't, however, change the law - in fact all it required was for the Court of Protection to use its already existing discretionary power to permit the press to enter.  Having said that, the press still have to make a formal application to the court and a judge has to make a reasoned decision, so it's quite a resource-intensive process on all sides.

In my view there are lots of problems with the safeguards - too numerous to list them all here, but I'll discuss them in later posts no doubt.  The main problems highlighted by the case of Steven Neary are that the 'safeguards' themselves are not very effective when families have difficulty understanding or accessing their rights.  I've discussed this in more detail in a guest blog in Community Care magazine.  Not the least of Mark's problems was finding expert help from a solicitor - some told him (wrongly) he couldn't bring his case to court as he wasn't entitled to legal aid.  Even then, he rang over 50 before he found one with any expertise in the case.  In this BBC report Mark Neary says 'In the first seven months of Steven being away, I couldn't get any help at all', so he started up a Facebook group, went to the press, and support started to flood in.  But why wasn't there any help from the professionals?  You shouldn't have to go to the press, to Facebook, to access your legal rights.

There are still lots of unanswered questions about this case.  Here's a few that I will be looking out for in the May judgment, when there will be a full judicial inquiry into what happened:

• Did Hillingdon council act lawfully when they refused to let Steven return to his father's care?
• Was the deprivation of liberty authorisation issued when it should have been - or after they had already begun detaining Steven?
• Was the detention ever in Steven's 'best interests', and did they fully assess all the other options - most importantly, did they give serious consideration to whether Steven could have been cared for at home? Detention must be necessary to prevent harm, and it must be proportionate to the likelihood and severity of the harm.  The courts have previously indicated that family placements should be considered as a priority.
• It's also important to remember that, unlike under the Mental Health Act, under the deprivation of liberty safeguards people cannot be deprived of their liberty for reasons of 'public protection'.  The only reason a risk to the public might be relevant is if that risk might 'rebound' on the person themselves and affect their best interests.
• Do local authorities have a duty to provide additional resources (above and beyond those normally required by community care law) to support people to remain with their families so they are not deprived of their liberty?
• If detention wasn't in Steven's best interests, does this mean Hillingdon and the care provider, or just Hillingdon, have breached Steven's rights?  Can they seek compensation?
• Were Mark, the father's, Article 8 rights to family life breached?
• Did Hillingdon comply with all the procedural requirements of the safeguards - to keep Mark (as Steven's representative) informed of the process at all stages, to provide him with copies of assessments, to inform him of his right to support from 'Independent Mental Capacity Advocacy Services' and refer him if necessary?
• The dispute was rumbling on all summer, by all accounts, so why didn't Hillingdon refer the case to the Court of Protection as a matter of urgency?  Why did it have to wait for Mark to take the case there himself?
• The most important question of all: Why did Hillingdon do it? Why did they refuse to let Steven return to his home? How could there be such divergent opinions of his 'best interests' that a judge sent him home almost immediately in December, when the DoL was still authorised?  To the best of my knowledge, this is the first time this has ever happened since the DoLS came into force.  Was this a case of professional misjudgement - or did something else go wrong?

[Edited to add for clarity: Note, these are questions that the court might consider, not statements of what happened]

There are other, wider, questions this case raises.  There may be situations that are similar to Mark and Steven's where for one reason or another the safeguards cannot be used to get the case into court.  If someone is removed from the care of their family and placed in supported living (as in this case), unless the local authority themselves take the case to court it's very difficult for the family to.  This is because - for some entirely inexplicable reason - the Department of Health decided to ignore the advice of CSCI and others during consultation to extend the safeguards to cover 'supported living' as well as care homes.  Without the safeguards, the family have no right to request the supervisory body assess whether a deprivation of liberty is occurring.  Without authorisation under the safeguards, they will have no automatic right to advocacy and no automatic right to legal aid to take the case to court.

Even if someone is in a care home where the safeguards could  be applied, there is no guaranteeing that the supervisory body will agree that deprivation of liberty is occurring, even if the family object.  This may be more the case following yesterday's judgment on MEG & MIG (P & Q) in the Court of Appeal (discussed in my last post), where judges held that unless the person themselves was objecting they were probably not deprived of their liberty.  Where people have severe illness or disabilities, whether or not they are objecting can be quite subjective.  If supervisory bodies decide they aren't, once again the family would have no recourse to the safeguards.

Even if the supervisory body agree that someone is deprived of their liberty, it was suggested by the Mental Health Alliance that some were deliberately appointing family representatives who didn't oppose the placement.  This is really sneaky.  Unless you are the 'representative' you don't have the right to see the assessments, to be kept informed about the process, to advocacy, legal aid, etc etc.  Ironically enough, Mark Neary was 'lucky' (if you can call it that) - because Hillingdon both authorised Steven's detention, and made Mark the representative.

Holey and problematic as they are, without the safeguards, Mark Neary could have been pretty stuffed.  He wouldn't have been able to get free legal representation - nor advocacy services, and despite a petition and Facebook campaign with thousands of supporters, despite the best efforts of bloggers like Anna Raccoon, despite the support of local councillors and thousands of 'tweeters' behind him, it's not at all clear that Steven would have been home by Christmas.  Nor that you'd be reading about the case in your newspapers today.

(Added 3/3/2011: You can now find the court judgment allowing the press to report here)

[Edit 23/05/2011: I've written a more up to date summary of key issues I hope are reported well in the press here, it's also worth reading the comments underneath for a sense of other considerations from other perspectives]