Access, reporting and judgments in the Court of Protection

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

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

Authoring our ends

For the last two weeks the Court of Protection has been hearing a request from the family of a severely brain damaged who is in a minimally conscious state, to allow her to die.  The official solicitor, who is representing the woman – known as ‘M’ - as her litigation friend, opposes the request.  Until the judgment is published (probably later this week, or early next) we won’t know all the arguments and evidence advanced on both sides.  However, the press are attending the hearing and the family are reported to have said:

‘She can’t move, she can’t speak, she’s fed through a tube, she can’t even enjoy a cup of tea.

'She’s got no pleasure in life; her daily routine is just being taken out of bed, put in a chair, showered, then put back to bed.'

‘There’s no dignity in it.'

‘It’s not a life, it’s an existence and I know she wouldn’t want it.’

They are also reported to have said that ‘she would never want to live a life dependent on others, even if she retained her mental faculties.’

Mapping activity under the DoLS

Digital artist Carl Plant has made a fantastic map showing the number of deprivation of liberty authorisations under the safeguards.  I was bowled over by his skills and asked whether he might be able to a similar map using some data I had put together on the rates of application for each local authority, per capita of the population.  Carl kindly agreed and has said I can put both maps on the blog - but it's well worth visiting his blog for plenty more interesting data visualisations (including a UK map showing the educational divide, and a chart showing the rise in fuel prices).

Is Personalisation inadvertently criminalising carers?

A while back, whilst researching the requirements for registration as a domiciliary care provider with the Care Quality Commission (CQC), I became concerned that the definition they were applying might pick up carers who employed a personal assistant on behalf of a person who lacked capacity.  This would mean that those carers would be obliged to register with CQC as domiciliary care providers, or they would be guilty of a criminal offence.  As the Personalisation agenda is rolled out, more carers may use direct payments to employ a personal assistant to provide support for someone they care for who lacks the capacity to employ them directly themselves.  Under s10 Health and Social Care Act 2008 any person who carries on a regulated activity without registration is guilty of an offence, and could be liable for a fine of up to £50,000 or sentenced to a prison term of up to twelve months.  Is it possible that Personalisation could, therefore, be criminalising carers?

Why are the Ministry of Justice courting Courtel?

A while back I was trying to get listings from my local county court, for a trial that I knew was coming up that I wanted to attend.  I was surprised to find only daily listings on Her Majesty's Courts Service website, so I contacted the relevant court and asked them.  They said they could provide me with information on what cases would be heard the next day, but no more.  It turned out they held listings for the week ahead, but they weren't allowed to shared them with members of the public.  If I wanted to attend a particular trial, I would have to harass the poor court officer every day to find out what was coming up.  This seemed like a monumental waste of both my time and theirs.

A good read

Probably not for summer poolside reading, but you might be interested to know that Cambridge Journals are offering free access to all journals for the next six weeks.  You can find an index of their journals here.  Here are a few that caught my eye...

Can supervisory bodies appeal against their own decisions?!

It would be a topsy turvy world, wouldn't it, if public authorities could start appealing to the court against decisions they themselves had made?  And yet, we should probably learn to expect anything with the deprivation of liberty safeguards (DoLS).

Three conferences and a seminar

I assume most people reading this blog have more than a passing interest in mental capacity law, so I thought I'd draw to readers' attention three interesting looking upcoming conferences [Edit: and a seminar I've just heard about].  I wish I could attend them all...

R (NM) v Secretary of State for Justice [2011]

Thanks to Adam Wagner's Twitter feed I noticed a recent ruling relating to whether a prison acted lawfully when it decided not to investigate allegations of sexual assault on a prisoner with learning difficulties. The case, R (NM) v Secretary of State for Justice [2011] EWHC 1816 concerned whether the prison authorities were in breach of theDisability Discrimination Act 1995 and the Equality Act 2010 because they failed to make reasonable adjustments in relation to the investigation of a sexual assault against a prisoner with learning disabilities, NM. It was further considered whether the failure to conduct a formal investigation was in breach of NM's Article 3 rights. The claimant was assisted in bringing his case by the Howard League for Penal Reform. The court found in relation to all points that the defendant had acted lawfully.

I don't want to go into masses of detail about the case, but I did want to flag up a few things about the judgment that might merit further thought for disability rights campaigners.

Regulation, Rights and Risk

[Note: This post was updated in August 2011 and can be downloaded from here (pdf).  The updated article contains better statistics and is focussed more on the role of inspection to prevent abuse and neglect, rather than human rights per se.  I've left the original post up though for interested parties.]

I will be devoting an entire chapter of my thesis to the potential and challenges of a regulatory approach to human rights protection in social care, and there is much to discuss therein.  Whether the founding principles of the Care Quality Commission (CQC) should have been more explicitly human rights oriented, and whether they should have been able to take up individual complaints, as the Joint Committee on Human Rights had advocated.  Whether the CQC’s approach to monitoring the deprivation of liberty safeguards is adequate and compliant with the UN Optional Protocol on the Convention Against Torture (see this blog post and this for more discussion).  Whether the inspection methodology itself is ideally suited to human rights protection and promotion, and whether the care inspecting arms of CQC could perhaps learn something from the former Mental Health Act Commissioners 'visiting' methodology.

In today’s post, however, I will be limiting myself to considering a single issue: the case for a shift to a risk-based approach to inspection, justifying a significant overall reduction in inspection frequency.  I will not be discussing in any great detail specific human rights issues, but it is the potential for CQC to act as a human rights inspectorate that leads me to consider this in the first place.  I am very well aware that inspection is not a magic wand for human rights issues; it offers no cast iron guarantees against violations.  I can tell you, having worked for many care providers, that there are a huge range of things that get tidied away before the CQC’s announced visits.  There are behaviours that magically disappear when CQC inspectors are on site.  However, inspection can – and does – pick up on the more glaring problems with a care provider, and can also have an important preventive function where there is a strong likelihood of a visit from an inspector.

The darker side of dignity

Dignity is a slippery term.  Writing extra-curially, Lady Hale once asked 'what does dignity mean? It is not a lawyers' concept.'  According to Kant, humans possess an inherent dignity, that requires us to treat other human beings as people and not 'things'; dignity makes us an end in ourselves, and not a means to other ends.  As a concept linked to 'rights' dignity began to emerge after the Second World War in what Francesca Klug has called the second-wave rights.  Dignity is enshrined in the preamble of that most aspirational and poetic of post-war human rights instruments, the Universal Declaration of Human Rights:

'Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world'

It is a concept sufficiently noble, grand and vague that all the signatories to the UDHR could agree upon it as a grounding for the more detailed human rights it established.  Whereas the 'first wave' rights of the Enlightenment and Modern era tended to enshrine political and civil rights grounded in autonomy and liberty ('the right to be left alone'), dignity could potentially ground welfarist social and economic rights.  The kind of rights where a state actually had to take steps to do things for their citizens, rather than refrain from interfering with them.  Klug writes:

Is deprivation of liberty more likely to go unspotted for privately funded care home residents?

I've been umming and ah-ing whether to post about some data I have collected using the Freedom of Information Act about the funding status of people who are the subject of applications for authorisation to deprive them of their liberty in a care home.  The problem I have is that whilst the findings are potentially quite interesting, the quality of the data is a bit dubious.  What I'll do is tell you what the data shows, then suggest why it might be a cause of concern if it is a reliable indicator of the national picture - then I'll confess all my doubts about the quality of the data.

Privately funded care home residents are less likely to be the subject of the DoLS application

As part of a wider survey of all the local authorities in England*, I asked each of them the following question:

"Separately, for standalone standard applications and standard authorisation applications accompanied by an urgent authorisation, please indicate which authorizations related to people whose care was funded by the local authority and those where funding was provided by other sources (e.g. health funding, privately commissioned etc)."