An invidious position

As you may have already heard, the much-maligned Chief Executive of the Care Quality Commission (CQC), Cynthia Bower, resigned today.  I think most would agree this wasn't so much a matter of "if", as when, since her ongoing association with the organisation was reputationally untenable, and likely to be more so once the Mid-Staffordshire Inquiry report is published.  Although I'm no fan of Bower's, I'm not especially optimistic about the organisation's future without her.  The problems for CQC are largely structural and political; it's not that there aren't "personality" issues, rather that the politics will shape the personality that can head the organisation.

A change of leadership won't be able to turn around the juggernaut of a light-touch and poorly-resourced regulatory model.  I do feel that what is missed in the press's feeding frenzy on Bower herself (and Williams, to a lesser extent) is how far the problems at CQC relate to the way it was set up.  A few months ago I watched Labour MP Margaret Hodge cross-examining the CQC's leadership in her role on the Public Accounts Committee, but Hodge herself voted for the legislation that birthed the CQC in its current form.  Like genetics, a statute won't determine everything about the creature it produces, but it does go some considerable way towards shaping it.  The Health and Social Care Act 2008 did not seek to produce a body that could drive through improvements in the sector (so much as remedy failings), did not create a mechanism for handling complaints, and omitted several useful powers that the CQC could have done with to deal with problematic providers.  And the Department of Health - under red banner, as well as yellow and blue - must bear some responsibility for the shape the CQC has taken.  Yet I'm sure they're pretty relieved when Bower and Williams take the flack for a failed regulatory model.

Could arbitration be used for dispute resolution under the Mental Capacity Act and DoLS?

The appeal mechanism for the deprivation of liberty safeguards (DoLS) continues to be a cause for debate and concern (not least relating to the cost of court proceedings).  Several alternative mechanisms for handling disputes under the DoLS have been proposed, some of which I've discussed before and would be keen to explore further (use of guardianship instead of DoLS; 'tribunalising' the DoLS appeals mechanism; mediation of some kinds of disputes).  Another option that was proposed last year by Anthony Hurndall of the Centre for Justice is arbitration, which is certainly a novel and interesting suggestion, and one that I have never seen suggested or discussed elsewhere.  In his article in The Guardian, Hurndall proposed that mediation-arbitration would have been suitable for a dispute like London Borough of Hillingdon v Neary & Anor [2011]:

Both parties are helped to reach their own resolution through mediation but, where this does not result in agreement, the assessor goes on to make an award (binding under the Arbitration Act). This results in a prompt, cost-effective, legally binding agreement or award in every case, benefiting local authorities and those they care for. Time and cost savings are considerable, — around 80% on legal costs alone.

Use of the service such as this would have spared Hillingdon the heavy legal bills it faced and quickly ensured the council and the Nearys the right result. Reputations and dignity would have been left intact, distress minimised and relationships preserved.

I confess to being somewhat sceptical about the suitability of arbitration for matters concerning the welfare of an incapacitated adult in general, and their detention in particular.  However, I know very little about arbitration and my scepticism takes the form of a series of questions and doubts rather than solid legal arguments that arbitration would be inappropriate for such cases.  I contacted the Centre for Justice to say I'd be writing this piece, and they said they would they be happy to respond to any questions I raise (and hopefully correct any errors I fall into on this horribly complicated topic).  So hopefully this will open up a conversation with those who have more knowledge and experience of arbitration proceedings than I do, who can respond to the points I will raise here. [Edit 22/01/2012: The Centre for Justice have kindly responded in a comment underneath, which I have re-posted at the end of this piece so you don't miss it]

Allan Norman: Sex, residence, and the capacity to make unwise decisions

I'm really delighted to host this guest blog by Allan Norman, Principal Social Worker & Solicitor at Celtic Knot (www.celticknot.org.uk), an independent law firm and social work practice. Allan's post explores how very different real life outcomes can follow a capacity assessment where a person might make an unwise decision, and asks whether we would want the law to be that way if we were the subject of a capacity assessment. Guest posts responding to this question, or on other capacity and social care topics, very much welcomed.

A capacity decision can be, as I tell my students, like a fork in the river. You have to go one way or the other. If a person has capacity, they are allowed to make unwise decisions. If a person lacks capacity, we must make decisions for them in their best interests. Which fork we take is particularly significant if they lead to completely different destinations - that is, the unwise decision that they would have made is the opposite of what we think is in their best interests.

Caselaw is developing some tools for ameliorating the worst effects of this, for example laying emphasis on how a person's previously expressed wishes may form part of their best interests. Meanwhile, I have argued, if you control the capacity question - what is the decision, the making of which has to be assessed - you have significant control over the answer. 

Peers introduce an amendment to close a human rights loophole in social care

I was interested to see that peers Baroness Greengross and Lord Rix have introduced an amendment to the Health and Social Care Bill that would address certain loophopes in the protection offered by the Human Rights Act to people in receipt of care services.  Almost certainly, this amendment is in response to the Equality and Human Rights Commission (EHRC) report 'Close to Home', which expressed serious concerns about the human rights protection of older people receiving domicilliary care services in their own home.  The EHRC have called for the closure of a legal loophole, which means that private domicilliary care providers are not 'public authorities' in the meaning of s6 Human Rights Act 1998 (HRA) which, in essence, means they can't be litigated under the HRA by service users for violations of their human rights.  I've explained previously how this loophole came to exist, and it's good to see peers and the EHRC taking action on this.

Read this!

No time for proper blogging this week, but if you're looking for something to read I really recommend this report on a roundtable organised by the Essex Autonomy Project about the deprivation of liberty safeguards.  The roundtable was held in January, and was organised with the help of the Arts and Humanities Research Council and the Office of the Public Guardian, and was attended by lots of people with interest in, and knowledge of, DoLS.  I highly recommend the report (and I can confirm it's an accurate report, as I was fortunate enough to bag an invite!).

In other news, if you haven't already read this month's Court of Protection Newsletter from 39 Essex St, then do so.  It contains worrying news that the Official Solicitor has reached the limit of his resources with regard to Court of Protection healthcare and welfare cases. He will still accept cases relating to emergency medical treatment and s21A MCA appeals against detention 'other than those brought by the relevant person's representative.'  The Court of Protection Rules 2007 require that 'P' has a litigation friend, and given that the OS acts only as a litigation friend of last resort, it is hard to see where another litigation friend can be found for many of these cases.  Ergo, it is hard to see how important matters, that will often engage Article 8 rights to private and family life, can access justice.  Presumably, if the OS is currently only able to accept s21A MCA appeals that are not brought by P's representative, then it seems possible that P's Article 5 rights could also potentially be infringed.  Following the ruling in Stanev v Bulgaria (2012), I think the government should be extremely concerned that adults who are said to lack capacity, or their supporters, may struggle to challenge decisions made about their lives if they are unable to enlist his support for these matters.  Clearly the immediate answer to this is for resources to be found to support the Official Solicitor in the important work of his office.  In his annual reports the Official Solicitor has repeatedly warned about the climbing workload engendered by the Mental Capacity Act; it seems his warnings have not been heeded.

UPDATE 29/02/2012: A note (pdf) on the Ministry of Justice's website clarifies the situation of the Official Solicitor regarding care and welfare cases.  I'll post the relevant sections of his note in full:

Nearly Legal: Wychavon revisited

Back in October I cross posted a brilliant blog piece by Nearly Legal about the ruling in Wychavon District Council v EM [2011], which concerned whether a tenancy entered into on behalf of a person who lacked capacity, without the requisite authority from a deputyship or the Court of Protection, could create a liability for housing benefit.  In the initial judgment it was found that it did not, which potentially posed serious problems for many people without capacity to contract in supported housing.  I encountered significant levels of concern about this ruling from families and providers alike.  Happily, the judgment has been revisited, and Nearly Legal have kindly allowed me to cross post their summary from their blog.  The solution arrived at is not quite so neat and tidy as legal purists might like, but it will certainly be a relief to those reliant on supported housing schemes.

Wychavon DC v EM is a double decision, so to speak, by Judge Mark on a housing benefit matter, with broader implications regarding incapacity. In essence, EM is profoundly disabled (mentally and physically). Her parents moved her from a care home, with the support of Worcestershire CC (which also encouraged the understanding that entitlement to HB would follow), to an annex they constructed at their home. EM had previously lived in the garage at their home, but this was unsuitable as EM required round the clock care from three carers, who needed their own accommodation. EM’s parents could not afford this new arrangement without housing benefit. EM’s dad entered into a purported tenancy agreement with her for an indefinite term (hmm) at (what all agreed) was a reasonable rent. The question for the Upper Tribunal was whether this created a liability to which HB attached.

Misunderstanding and underuse of advocacy for the first year of the DoLS

Data on the use of s39D IMCA's in the first year shows poor awareness and underuse.

As I've discussed several times before on this blog, the snappily titled s39D IMCA's are an absolutely vital  part of the deprivation of liberty safeguards (DoLS).  This is because they are, theoretically, the only person involved in the process who a) understand the DoLS; b) doesn't have a vested interest in the outcome.  Their role is the support the detainee (P) and their unpaid representative (R).  However, in July 2010 the Mental Health Alliance reported that: