Eleanor Roosevelt, 1958

'Where, after all, do universal human rights begin? In small places, close to home -- so close and so small that they cannot be seen on any map of the world. Yet they are the world of the individual person... Unless these rights have meaning there, they have little meaning anywhere. Without concerted citizen action to uphold them close to home, we shall look in vain for progress in the larger world.' Eleanor Roosevelt, 1958

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Tuesday, 1 March 2011

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]

    13 comments:

    1. Thanks for the analysis but please remember Hillingdon Council should not be judged against your rather progressive views about what would be desirable in making decisions about support for vulnerable people but against the requirements set out in Deprivation of Liberty Code of Practice. While I share your view that comprehensive oversight in decision making for incapacitated people would be humane and beneficial in a civilised country, the DoLS scheme as constituted falls far short of this ideal. This is the fault of national government, and judges in the Court of Protection and the Appeal Court who have supported the limited definition of scheme, not Hillingdon Council.

      Steven’s father did not oppose his son’s admission to the respite placement, and from his own account, apparently sought the admission in the first place. So unless Steven strenuously objected, it would have been perfectly proper for the care home not to have sought Authorisation for the placement until some time after the admission when his father’s view changed

      I heard Roger Hargreaves (author of the Mental Health Alliance report you cited) on the Today Programme saying something along the lines that this case was a demonstration that the process is working. This was a generally well balanced and thoughtful piece, unlike some other BBC coverage such as the R5 Victoria Derbyshire and R4 You and Yours interviews which uncritically accepted the father’s account and wrung the material for pathos.

      I’d tend to see this coverage as further evidence of Independent going tabloid. This is a shame as the paper has had a sustained and serious interest in social care issues for some time. Unfortunately, the paper is developing a tendency to succumb to a weakness for sensation. The Independent covered the issue of standards in care homes earlier in the week. Contrast the measured analysis of the replacement of the CQC inspection regime with a weaker voluntary scheme on comment page with the front page which featured a brash ‘it was the Sun what won it’ style headline claiming the scheme as a good thing and as a victory in the paper’s campaign for dignity in care.

      All the papers discuss the Court of Protection using boo words like ‘secretive’. When you’re reading an article try substituting a less loaded word like ‘confidential’. You’ll find that sounds much better. Elisions and contractions in describing the background to cases aren’t direct misrepresentations but they wouldn’t give any lay reader the impression that the point of the Deprivation of Liberty Safeguards is that they are Safeguards rather than draconian legal provisions on a par with the Apartheid-era pass laws. Of course, the existence of the Safeguards and the Court of Protection wouldn’t have been have be such a shock if the newspapers had troubled inform readers about them, in more measured and less hysterical terms at some earlier point.

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    2. One element media’s hostility to the COP is simply down to pique and spite. The latest bout of media hostility began about eighteen months ago when the Court refused leave to allow disclosure of hearings about a young autistic man with prodigious musical talents and a family dispute about whether his performances and use of monies earned was exploitative. In my view, the fact that the press cited ‘Rain Man’ and dubbed him ‘the Human iPod’ and was clearly hoping to able to report on the case as a rancorous family dispute tarnishes their credentials as impartial seekers after truth.

      Do you remember the tabloid clamour last year when details of sexual assaults on two children by other two other children were omitted from the published portion of a serious case review? I find that press coverage about sexual crimes is prurient and often rather distasteful with unnecessary disclosures of degrading details. I suppose editors know the needs of their readers best. Perhaps a new source of stories about human misery is what some elements of the press are seeking in their wish to have unrestricted rights to report on cases in the Family Courts? I have no reason to believe interest their interest in the COP would be any more edifying,

      The judgement says fairly clearly that the judge’s hand was forced in allowing reporting because so much about Steven’s case is now in public domain after disclosures made to the media by his father. If a public body had been responsible for these disclosures, this would have been a clear breach of Steven’s human rights under Article 8 requiring respects for privacy (and, ironically, for family life). I hope media interest does not damage Steven. See the thoughtful piece from the perspective of social worker CB in the blog ‘Fighting Monsters’ which discusses relatives telling their side of the story in the media. The point of the post is that these one-sided disclosures are made without the consent of the incapacitated relative and that there is no right of reply for the public body even to rectify outrageous misrepresentation because it is still bound to respect confidentiality.

      http://fightingmonsters.wordpress.com/2011/02/16/press-perception-and-the-court-of-protection/

      Child protection practice has been long overshadowed by wild oscillations in the media between the view that flint hearted bureaucrats are officiously separating children from loving carers because of trivial incidents and the views represented with equal conviction that the dippy liberal social workers should be removing children from feckless underclass parents a matter of routine. We will have to see whether coverage of the promotion of the welfare of vulnerable adults gets into same seesaw rhythm.

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    3. It will be interesting to see the full judgement on Steven’s case and if the social care staff were flint hearted bureaucrats or whether there were grounds to the concerns that prompted sanctioning such a protracted separation. Generally local authorities and health boards would rather save money on expensive placements by supporting family carers so even if you have a low opinion indeed of them and their staff, you’d have to concede there must have been a reason to make such a large investment in Steven’s support in these cash restricted times.

      A few points about your rhetorical questions and other observations about DoLS:

      Steven’s Dad wasn’t ‘lucky’ to be appointed as his representative. He was recommended to the role by the social care professional acting as the Best Interest Assessor and was confirmed in this role by the Supervisory Body representative who scrutinised and signed the Authorisation. I daresay that this was a considered decision. I’d view it as a point of good practice that the assessor bore in mind what the DoLS Code of Practice says, that someone is not ruled out from acting as a representative because they disagree with the deprivation of liberty that has or may be Authorised. The assessor might have done this with the precise intention that Steven’s father could request a review.

      Implying that restriction of access to information is a routine aspect of the DoLS process is unfair. Anyone who is consulted in the DoLS assessment process is supposed to receive notifications about the decisions made and about the ending and / or renewal of any Authorisation. Only the detained person themselves, their representative and the care home or the hospital have an absolute right to copies of the assessments but there’s nothing in the guidance limiting distribution of the assessments to the people on this short list. I’m aware of assessors specifying that assessments should be circulated more widely. I’m certain Steven’s father got his copies because of the large extracts from what seems to the Best Interest Assessment which were quoted in the media in the Summer. If you compare the DoLS document set and the requirements about informing people to those under the Mental Health Act, it’s fairly clear that these aspects of the DoLS system are a deliberate reaction towards transparency in decision making. Under the MHA, liberty can be curtailed with a short scribbled justification from two doctors and three signatures and the nearest relative is entitled to a slightly impenetrable official leaflet. If you want to campaign about limited access to information relating to detentions in social care, start there. The DoLS scheme meanwhile, is frequently criticised for sharing of information too widely and for generating the formidable administrative task of organising mailings and notifications.

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    4. DoLS is far from perfect but it is a start.

      I’d say to any commentator, that, if you consider that embedding consideration for the rights of vulnerable and incapacitated people into routine social care practice is important you need to make some decisions about how and whether you will help or hinder this process.

      Being critical of MCA / DoLS because it doesn’t go far enough is fine, but please bear in mind you could be making common cause with the people who are hostile to the idea of service users as citizens with rights rather than the subjects of social policy or adjuncts to the wishes of their carers.

      Some social care staff do care about these issues and promote careful practice. The opportunist professional bashing and local government kebabing by the media is unlikely to make unconvinced staff think any more kindly about the processes and may isolate advocates of rights-based practice within their teams and organisations,

      While it is customary to say that any light shed on an obscure issue is valuable, I’m not so sure. The way this case has been reported is likely confirm the view of staff in care settings that issues about the restriction and deprivation of liberty are something to fear, avoid, ignore and deny. I’m going to show that front page in a training session tomorrow. I’ll let you know what the reaction is.

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    5. Glad I got that off my chest, must start a blog of my own some day...

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    6. Hello Anonymous, there's a lot to respond to there so first off apologies if I don't get back to you on all your points - please feel free to raise them again if you want a specific response to them. I'd also love it if you started a blog - I learn loads from blogs like Fighting Monsters, the Masked AMPH and legal blogs. I very much share your view on the journalistic reporting of Court of Protection issues (and child protection, and stuff related to social workers in general). I find it tabloidy and unhelpful; I think the clamour to open up the Court of Protection to press is not supported by the poor quality of analysis the press have given to those cases they've been in so far. Similarly law reporting in newspapers tends to be poor quality. The coverage of the 'prisoners votes' case gave a really misleading representation of the judgment and its implications. Part of the reason I enjoy reading blogs is that bloggers often give a more nuanced and interesting perspective. Anyway, please start a blog, and now I'll get onto the points you raise.

      "please remember Hillingdon Council should not be judged against your rather progressive views about what would be desirable in making decisions about support for vulnerable people but against the requirements set out in Deprivation of Liberty Code of Practice"

      Agreed. But the questions I raise are not just about Hillingdon, they are about how the courts themselves approach the DoLS. So for instance, some issues will be about whether Hillingdon followed good practice: did they appoint an advocate when it was necessary; did they refer to the CoP when it was necessary; what factors were considered in the best interests analysis? Other questions are for the courts: how far should local authorities go in avoiding DoL? Under what circumstances do family member's rights have to be taken into account in the DoL process? Other are technical legal questions - who has committed an offence, if the DoL is unlawful? This is because when a DoL is authorised it protects the care provider from liability. The point that I didn't cash out very well was, if a DoL is found to have been authorised by the supervisory body when it shouldn't have been (as, we should remember, the court may still find here), it seems rather unfair that the care provider themselves could be held liable for doing what they were told was lawful.

      From a few of the points you raise, it sounds as if you read my piece as already concluding that Hillingdon had broken the law, e.g., deprived Steven of his liberty before they authorised in April. The hearing hasn't happened yet - these are the issues I'm looking for in the judgment, not conclusions I have reached independently. It's not 'professional bashing' to say 'these are the issues that often go wrong in DoLS, have they gone wrong here?'

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    7. I have great sympathy for professionals working with DoLS. It's not a clear system, it's full of uncertainties, and the courts aren't helping matters by providing case law that isn't exactly digestible and easy to apply. But the fact is, there is evidence - both in the Mental Health Alliance report, and in my own research - that there are problems with how the DoLS are being applied. Things do go wrong. It's entirely possible they went wrong here - that's why the case is important. I agree with Hargreaves that in some ways the case shows the DoLS are working, but that doesn't mean they worked as well as they could - or should - do. I come back to the point I raised. If a supervisory body is engaged in an ongoing dispute over where a person who is DoL should be placed, *they* should be referring it to the court themselves. We know that the dispute went on over the entire summer because of the petition and blog coverage. We also know that it was the family, not the council, that took it to court. So why didn't the council? The only explanation is that either the council chose not to, or they did and for some reason the court itself failed to hear the case when it should have done.
      I don't get a sense you meant to flatter me by reference to my 'progressive views', but it's true that I think the DOLS itself is poorly drafted (not just in terms of 'rights' but also in terms of clarity, certainty and coverage of all the issues you'd want it to cover - like, for instance, what happens when someone is DoL and it's not in their best interests so can't be authorised). I also think DoLS should extend more widely - it makes no sense to me to say that if Steven was placed in supported living, rather than a care home, his family would have no rights to safeguards. I would also like to see advocacy services referred to automatically (with a right of refusal, obviously), not at the discretion of the supervisory body. I'm not alone in this - the MHA report says much the same.
      "It will be interesting to see the full judgement on Steven’s case and if the social care staff were flint hearted bureaucrats or whether there were grounds to the concerns that prompted sanctioning such a protracted separation". I have met very very few social care professionals who could be described as 'flint hearted bureaucrats', and I'd be absolutely astonished if Hillingdon's department was composed entirely of them! 'Flint heartedness' is not likely to be the reason for their decisions, even if that's a nice easy analysis for some of the press to fall back on... The reason I ask 'why did Hillingdon do it' is because it seems such an odd path to have taken from the outside. As you say, it's much cheaper in general for someone to be supported with family - so money saving doesn't seem to be the background to this (although there may be factors we are unaware of). This leaves 'safeguarding' or other 'best interests' reasons, but for reasons I'll go on to, I don't think we can assume this to be the case.

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    8. Remember, once the case was brought to court in December (a hearing the press were not attending, so not everything is in the public domain there), the judge said that Steven should be sent home almost immediately. I cannot stress how unusual that is. In the case G v E, even where they decided that overall E would probably be better off at home with his foster carer, this didn't prompt an immediate move back because they wanted to follow up lots of issues to ensure stability was guaranteed. It would be astonishing if, at the hearing in December, Hillingdon did not present whatever their grounds were for not allowing Steven home. We must presume that the judge was fully aware of these issues that we do not know about. If there were serious safeguarding or other concerns there is no way the court would have sent Steven home within days - they would have ordered a hearing in a few weeks for more evidence. The conclusion to be taken from this is that what ever Hillingdon's reasons for not letting Steven home during the year as a whole, and for wanting to move him to a care facility elsewhere, the judge evidently did not feel that they held water in December. Were Hillingdon right to keep Steven from home in the summer, but wrong to refuse to send him home in the winter? What changed? Did anything change?
      Going back to 'flint hearted bureacrats' a minute - no, I strongly doubt this was the issue. I think it is more likely that the DoLS are so full of uncertainties and there are lots of poorly understood - or at least poorly implemented - procedural issues, that if something went wrong in this case it's down to knowledge and understanding - not a question of heart.

      As for Steven's dad being 'lucky' to be made the representative, you are absolutely correct this is just good practice, but at the same time, it is evidence that this 'good practice' is not followed by some supervisory bodies. The 'luck' is in having a supervisory body that *did* follow the rules. I assume you are professional working with DoLS, and so I can see why you found this an annoying statement - and I apologise. I'd reached a bit of a rhetorical pitch by then, and was feeling annoyed by the assumptions lots of commentators had made that somehow Steven was brought home by petitions and blogs. He wasn't. The safeguards did the work. And the safeguards did the work because Hillingdon made him the representative where if he had been in some pockets of poor practice he might not have been.

      I hope that answers your comments. Please do consider starting a blog, I think discussion of DoLS can only enhance awareness and understanding. I'm slowly working on a post about whether the CoP should be more open to the press, and I'd be really interested to hear your views as I'm not totally convinced either way.

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    9. Goodness, I'd never even discovered there was a limit to the length of comments! Should have just written a new post...

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    10. Only joking about starting a blog.

      Point of DoLS Law: if the Supervisory Body receives six positive component assessments, it must give a Standard Authorisation. The only discretion the Supervisory Body signatory has is to authorise a detention for a shorter period (not a longer period) than the assessor recommended and that they may not adopt all of the conditions recommended by the assessor. I understand practice in England gives the assessor discretion to indicate if they still wish to stand by the assessment if conditions are rejected or altered. The only discretion the Supervisory Body has to reject an assessment is if the assessor appears to have 'misdirected' themselves in law or I assume it mght also be able to mount a defence for rejecting an assessment if the completion of the form was so grossly insufficient as to represent mal-administration. The Court of Protection, from the published judgements, has generally been very careful to respect the judgements made by assessors (and have actually praised the integrity of assessors facing a dilemma on several occasions). I assume this practice will continue, in the same way that the Court of Appeal does not simply trash judgements made in lower Courts, though it may supercede them. Unless Hillingdon have failed to do something fairly fundamental, the Deprivation of Liberty it authorised will not be found to be illegal. Indeed, if the Court changes the rules on this and starts second guessing and blaming assessors, the DoLS system would promptly collapse. It would be difficult to persuade someone to be an assessor if you have to explain that you can still get into trouble even for doing your job properly.

      You've put up a link to a report of the Manchester case. This case, where a local authority were acting high-handedly and were ignoring MCA and DoLS procedures (and were possibly wilfully doing so), answers many of your questions about blame and liability. It's a pity that Hillingdon caught the front page for trying to do the right thing when Manchester's errors are more serious and culpable ones. I suppose that's the difference between something being in 'the public interest' and what the public might be interested in.

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    11. Hi Anonymous,
      I've got to be brief as I'm in a rush today - it's absolutely true that the courts have rarely (in fact, to the best of my knowledge, never) found that a best interests assessment was 'wrong'. However, neither have the courts ever (to the best of my knowledge) sent somebody home near enough immediately after the case first came to court - as they did in December. That is what makes the case so 'odd' from the outside - how could the assessment have said it was in Steven's best interests to remain DoL and the court have sent him home. This *has* to be an issue that the court will consider. The whole point of the May hearing is to decide on the lawfulness of past actions; it would be a travesty of justice if the courts had to simply rubber stamp every decision assessors made.

      You raise an interesting point though. If the supervisory body had no choice but to authorise on the basis of the assessments, who is liable if the DoL is held to be unlawful? My personal hunch is that it would be pretty rare for individual practitioners to be held accountable - although this is possible (this is why BIA's have to have professional insurance). I think, if the DoL is found to be unlawful, it's more likely the courts will look at the wider picture, as they did in Manchester, and ask if the professionals involved had the training and support they needed.

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    12. Apologies to Anonymous, who posted at 15:34 on 3rd March - I've only just found your comment on press reporting in the spam filters. I'm not sure why it weeded that one out - looked entirely unspammy to me!

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    13. Fucking amazing responses. These bastards kidnapped a man and it took a fight through most of the court system to get him back. Why can't they understand that it's not OK?

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