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]

What is arbitration and what kinds of disputes can it be used for?

The Law Society defines arbitration as:

...a formal process in which an impartial third party with specialist background knowledge on the nature of your dispute hears all parties and makes a binding decision to resolve it.

The Law Society comments that it is often used as an alternative method for dispute resolution in disputes relating to building and construction, business and commercial disputes and problems at work. They also comment 'You are very unlikely to be able to take your case to court once an arbitration decision has been taken.'  From the research I did when trying to find out more about arbitration, there is nothing in the Arbitration Act 1996 itself that precludes arbitration being used in other kinds of legal disputes, including family law - and presumably also the Mental Capacity Act 2005 (MCA) and the DoLS.  Having said that, several commentators have expressed the view that arbitration cannot currently be used in family law (e.g. Carl Gardner; David Hodson).  Indeed, the Justice Minister Bridgit Prentice seems to think arbitration does not apply to family Law.  I have been unable to find any detailed commentaries on the legal reasons for the claim arbitration could not be used in family law disputes, and in any case a recent excellent commentary in Family Law Week (FLW) on arbitration casts doubt on this a priori exclusion of certain fields of law from arbitration:

There has been a widespread belief among family lawyers that arbitration cannot apply in family law disputes. This is a misconception. There is nothing in the Act or otherwise to preclude arbitration in family law matters. However, there has not until now been any scheme setting out rules within which family law arbitration could take place. For practical purposes this had ruled it out.

The reasons arbitration was not used in family law disputes, it seems, were practical - not legal.  The FLW commentary goes on to detail a new scheme for arbitration of certain kinds of family disputes which will have effect from 22 February 2012. Notably, however, the scheme explicitly excludes disputes concerning:

• The liberty of individuals 
• The status of individuals or of their relationship 
• The care or parenting of children 
• Bankruptcy or insolvency 
• Any person or organisation which is not a party to the arbitration.

I am unclear whether these issues are excluded from the scheme for legal or practical reasons, and it's a shame the article does not explain further as it would be directly relevant to the questions I want to consider of whether arbitration could be used for MCA/DOLS disputes.   I asked the Centre for Justice if they'd conducted arbitration in any MCA or DoLS cases, and they confirmed they hadn't, and I don't think the issue has been tested in court as yet.  I noticed that in Baroness Cox's recent, and controversial introduction of the Arbitration and Mediation Services (Equality) Bill [HL] 2010-12 specifically provides that family and criminal law matters would not be arbitrable.  But are criminal matters really arbitrable anyway, or is this just anti-Islamic sound and fury?  Who knows, and that's another topic for another blog really, but it does suggest that there is considerable confusion in the legislature about the possible role for arbitration.

Another perspective on arbitration in a family law context comes from this speech by Lord Wilson.  He highlights five indicators that an issue is not suitable for alternative dispute resolution, one of which included 'lack of clarity in the law'.  This is almost certainly likely to be a problem for some DoLS disputes, given that there are still many technical issues to be resolved regarding DoLS and disputes about the meaning of 'deprivation of liberty' look set to continue.  It shouldn't be forgotten, after all, that in many respects Neary made new law, making it doubtful that it was ever an appropriate case to have been settled outside of the High Court, who clarified (perhaps even created) many new legal principles in their ruling.

Difficulties for arbitration for MCA matters

The Arbitration Act 1996 gives the arbitral tribunal considerable powers to make a legally enforceable award.  Of particular relevance for MCA disputes:

'The tribunal may make a declaration as to any matter to be determined in the proceedings.' (Arbitration Act 1996 48(3))

and:

'The tribunal has the same powers as the court—

(a)to order a party to do or refrain from doing anything;' (Arbitration Act 1996 48(5)(a))

And so in some respects, it seems to me that the arbitral tribunal could possibly mimic the declaratory jurisdiction of the Court of Protection under the MCA and make a declaration as to whether P has capacity, what course of action is in his best interests, or make any binding orders on any of the parties to the arbitral tribunal.

But, one crucial thing that the arbitral tribunal cannot do, that may pose a serious problem for MCA matters, is bind third parties.  Parties to the arbitration proceedings must sign an arbitration agreement to make the outcome binding upon them; I would assume, therefore, that any parties to the agreement must have the mental capacity to enter into it.  If not, who would have the legal authority to sign the agreement on P's behalf?  Who would present P's case (as opposed to the carer's or the professionals' cases?).  Perhaps an appropriately empowered LPA or a deputy might be able to, but there were neither in the Neary case.  In any case, if a person had a welfare deputy who disputed the detention then the DoLS could not be used.  Or perhaps a litigation friend could sign the agreement on P's behalf, but who could this be?  Bear in mind that in disputes like Neary the Official Solicitor usually has to act on P's behalf as the other parties are too embroiled in the dispute to be regarded as impartially acting on P's behalf.  If nobody has this legal authority, this seems to me to effectively preclude 'P' from being represented or participating in the proceedings, or being bound by them.  By contrast, the Court of Protection Rules 2007 create a mechanism for P to be bound 'as if' he were a party', even if he is not made a respondent to proceedings (Rules 73-4).  

Is this necessarily problematic?  I have heard it argued that P needn't necessarily be a party to proceedings in the Court of Protection, although I personally find it a little uncomfortable to think of disputes over P's capacity and best interests taking place without P being represented as a party in his own right.  I'm sure this will  happen increasingly, however, with the Official Solicitor being unable to represent P in care and welfare cases as a result of reaching the limit of his resources.  Arguably the Court of Protection's 'overriding objective' to ensure P's interests and position are properly considered would counterbalance that, and the court could in any case still direct reports or evidence to be produced if either party had failed to consider a particular point in relation to P's interests.  By contrast, an arbitral tribunal has no such 'overriding objective' to consider the interests of unrepresented third parties.  I also wonder whether they would be able to give directions for reports or evidence on highly personal matters that relate to incapacitated individuals who are not a party to proceedings.  Without this power to direct reports about P's capacity or best interests, it seems to me the proper authority of the tribunal to pronounce upon those matters may be in doubt.

Aside from these moral and practical objections, inability to bind P as a party raises a further doubt.  If carers and professionals have agreed to have their dispute settled by arbitration, but P is not bound by the final agreement, what is to stop the dispute rearing its head again in court with P as the claimant?  I suppose an award could direct that family could not assist or encourage P to bring proceedings, but I do wonder how such an award would impinge upon P's rights if P himself is objecting to the disputed decision (as Steven Neary did).  And in any case, P might be supported by other means (for example, an advocate) to bring the dispute before a court, and so the legal certainty offered by arbitration proceedings that cannot bind the incapacitated party at the heart of the dispute may be limited.

Can arbitral proceedings satisfy Article 5(4) ECHR?

The DoLS were introduced as a result of the Bournewood case, which found that there was no 'procedure prescribed by law' that could satisfy the Article 5(4) ECHR right to 'take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful'. Although it is understandable that the case Neary v Hillingdon is sometimes constructed as a dispute between carer and professionals, fundamentally the case came to court as an appeal against Steven's detention under s21A MCA.  His father brought that dispute to court as Steven's representative, but for as long as Steven himself were objecting to the detention (and he clearly was), I can't see what authority his representative would have to sign away Steven's own right of appeal to a court.  And even if Steven's father had been satisfied that the detention was in Steven's best interests, the local authority would still have had a positive obligation to enable Steven to appeal in his own right: 'there is an obligation on the State to ensure that a person deprived of liberty is not only entitled but enabled to have the lawfulness of his detention reviewed speedily by a court' (Neary, [202] - emphasis mine).  Two questions relating to arbitration and detention play on my mind, then:

1. Can taking a dispute to an arbitral tribunal discharge a public authority's positive obligation under Article 5(4) to enable a detainee to have the the lawfulness of their detention reviewed speedily by a court?  If not, then there seems to me little point in referring a dispute like Neary to a tribunal, as the public authorities could still be found to have failed to enable the detainee's Article 5(4) rights.
2. If a dispute over detention has been referred to an arbitral tribunal, and settled such that the detainee remains detained, does this mean they have 'used up' their right of review of detention by a court?  And more importantly, can they still appeal against their detention under s21A MCA, or must they now appeal under the Arbitration Act 1996 against the arbitration award?  If, following arbitration, they can no longer appeal under s21A MCA then that strikes me as a major disincentive to use arbitration as detainees would lose their 'gold plated legal aid'.  In the alternative, if they can continue to appeal under s21A MCA, whatever the outcome of arbitration, then there seems to me to be little incentive for a public authority to use arbitration as it would offer them little legal certainty.

What costs would actually be saved for the parties to the dispute?

Arbitration is not free, and presumably the parties would hope to cover their costs using legal aid for advice under the DoLS?  If they were unsuccessful in obtaining public funding for arbitration, however, then there would really be no contest from the perspective of the detainee and their representative since they have an automatic right to legal aid for representation for appeals under the DoLS.  Yes, arbitration might be cheaper for public authorities, but if there were any chance that detainees and their representative would have to pay for arbitration then a s21A MCA appeal would make more financial sense for them.

Let's assume funding has been found - what costs would be saved?  My costings suggested that a significant proportion of the costs of DoLS appeals comes from paying expert witnesses, often jointly instructed.  I can't see how this cost could be dispensed with without also compromising the quality of the decision itself.  Presumably solicitors would still be used (I would be very concerned, from an equality of arms perspective, if lay litigants did not use solicitors in arbitration proceedings, given that public authorities would at least have in-house legal staff guiding them).  Perhaps counsel would not be used, although I do wonder how many solicitors would feel confident enough in their knowledge of the DoLS not to enlist the help of counsel?  And then, of course, court costs.  I haven't seen any costings for arbitral tribunals, so it's hard to compare these.

Concluding questions

So, to try to summarise my concerns about arbitration in MCA/DoLS matters, I will put them in the form of the following questions:

1. Is there any legal reason to believe that issues of the welfare of incapacitated adults and liberty should not be decided by arbitration proceedings?
2. How could P participate in proceedings, and be bound by the award, if he lacks the capacity to consent to the arbitration agreement?
3. What sources of funding would be used for arbitration?
4. If the detained party was unhappy with the outcome, would he then be precluded from appealing against detention under s21A MCA?
5. What would the qualifications and expertise of the arbitrator be in relation to DoLS?
6. Would the parties still use a) solicitors, and b) counsel, to guide them?
7. How much, typically, does arbitration cost?
8. Would arbitration proceedings satisfy the positive obligation under Article 5(4) that incapacitated detainees must be enabled to appeal against their detention in court?

If readers have experience in using arbitration for MCA disputes, or you could respond to one of more of these points, then please feel free to use the comments section below or email me (lvs202@exeter.ac.uk) if you would like to write a guest post.


Response from Anthony Hurndall, Centre for Justice

In this very well researched and thorough analysis of the issues concerning Deprivation of Liberty Safeguards Lucy Series raises a number of questions. We will deal with these briefly.

Arbitration can generally be undertaken by any two or more parties to decide any question that might be put to a civil court or tribunal to be decided between those parties. It cannot bind third parties, indeed as one would expect, and it cannot deal with non-civil matters, e.g., issues only a criminal court can decide. It cannot be used in public law functions, e.g., to decide whether a planning consent should be issued, though it can deal with whether that decision was properly arrived at, as one would through judicial review.

The concept of arbitration is that it is a process the parties agree to instead of going to court. Once they have agreed this, the court is precluded from deciding the issues. The fact that an individual has the right to go to court is the starting point from which the parties depart by agreeing they will instead refer the matter to arbitration.

In DoLS questions under the Mental Capacity Act, the issue is whether the individual’s representative has authority to make a decision or enter into arrangements on behalf of that individual. If the representative has that authority, which can be obtained under the MCA, then that is enough. All parties are then bound. We are currently dealing with a similar case concerning consent on behalf of parties represented by their parents, though not a DoLS matter and one of the question that arises is whether they have obtained authority.

We accordingly see no reason why the issue between local authority and individual should not be dealt with in this way.

Our process is different from conventional arbitration, indeed we do not call it arbitration, thought it takes its authority from the Arbitration Act. Its key is that it is non-adversarial. It is fully inquisitorial, as the assessor deals with the parties direct. It is the assessor’s role to investigate and decide the issues him/herself and not to hear argument or evidence, so levelling the playing field. The parties do not need lawyers as they would in an adversarial process as the assessor’s duty is to safeguard the interests of both parties by fully investigating and ensuring the correct legal analysis and outcome. Indeed we consider there is less equality of arms in the courts or arbitration, as there all depends on the relative resources of the parties and the skills of their representatives. Here there is true equality as the assessor is working for both parties to get them the correct result. Of course, it is an onerous role and requires specialist knowledge and considerable expertise, and it is Centre for Justice’s function to provide this.

There is a cost but to date this is less than 10% of the cost of going to court. Our process includes mediation which is covered by legal aid and we are looking into securing legal aid for the arbitration. We do offer means weighting for cases where the local authority agree this. As the savings to them are enormous, they are often happy to do so, so cost should not normally be a restriction on the use of the service.

In most of these cases speed is of the essence and our process delivers an outcome in a fraction of the time of cases involving the courts and judicial review. As we encourage the parties to mediate within the process, they are also able to agree and ‘own’ the outcome, which is far more satisfactory and allows relationships to be maintained and repaired. It also delivers even quicker results. 

In brief, so long as the representative of the individual has obtained authority to represent him/her, the representative can bind the individual and the local authority. This is an alternative, and a binding alternative, to going to court, on all the issues, and an effective and far preferable one.

Anthony Hurndall

Comments on the Centre for Justice's Response

I'm delighted the Centre for Justice have taken the time read and respond to this post.  I think Anthony Hurndall raises a very interesting question about the authority of representatives under the DoLS, which I would like to take up in more detail.  In a brief response to the point about 'equality of arms' and resources though, any appeals to court under the DoLS do come with 'gold plated' entitlements to legal aid for the detainee and their representative.  So they would not be placed at a disadvantage on resources grounds.  However I can see the very real attraction of a less formal process, more local, more 'tailored' to the needs of the parties than a full on court hearing.  I can definitely see the attractions of mediation for intractable disputes between families and professionals.  However, I think the issues around proper authority to enter into binding arbitration are quite legally problematic where incapacitated adults are concerned.

According to the DoLS Code of Practice the role of the representative is to keep in contact with the detainee, and to 'support the relevant person in all matters relating to the deprivation of liberty safeguards, including, if appropriate, triggering a review, using an organisation’s complaints procedure on the person’s behalf or making an application to the Court of Protection' [7.2].  In part, this role of triggering an appeal is so important because unlike under the Mental Health Act 1983 there is no automatic process in the DoLS for a detention to be reviewed by the court.  However, this role envisaged for the representative, to support a person in appealing to court, doesn't straightforwardly amount to either a power or a responsibility to activate or dispose of the Article 5(4) rights of detainees.

If we go back to the schedules, the role of the representative is a bit murky; they have no legal responsibilities and surprisingly few powers.  A representative can only be selected by a supervisory body if they believe they will fulfil the role of maintaining contact and helping a person to exercise their rights (Schedule A1 s140).  Then there are various duties upon the supervisory body and the managing authority to keep the representative informed.  And then the representative has rights to trigger a review (Schedule A1 s102).  That's about it.  They have no unique rights to appeal against detention under s21A MCA, although, as a representative they will have "gold plated" entitlements to legal aid to appeal, and they won't need permission from the court, which others objecting to the detention might not.

Nowhere in the schedules is a representative empowered with a similar authority to a donee of an LPA or a court appointed deputy.  And nowhere in the schedules is it suggested that the decision of a representative to pursue an appeal or not can impact upon the detainee's own right of appeal.  In fact, case law suggests that a detainee has a right to be supported in their appeal regardless of the views of the representative; in the DoLS case A v A Local Authority [2011] the representative was switched precisely because they didn't help the detainee to appeal:

A objected to this continued deprivation of his liberty and his objection was passed to the Relevant Person's Representative (RPR), who, at that point, was S. However, S did not support A in exercising his right to challenge the authorisation, with the result that a different RPR was appointed. [4]

Despite the detainee lacking capacity, the implication is that if he objects his right of appeal should be supported, regardless of what the representative thinks, and the representative is not empowered to waive that right.  Representatives might choose not to exercise the right of appeal on the detainee's behalf, and they cannot be forced to, but in those circumstances, I would suggest it is incumbent upon the supervisory body to ensure that the detainee is 'enabled' (as per Neary [202]) to appeal.  They could do this either by appointing somebody else to appeal on the detainee's behalf, or by referring it to court themselves.

Whether or not the supervisory body could decide to 'enable' the detainee's appeal to be heard through arbitration is a very interesting question.  My guess is that the issue of empowerment would still arise, however, as the detainee's Article 5(4) right is to a court appeal, and there would surely be Article 6 issues for a process where his representative has no lawful authority to agree to a binding arbitration on his behalf.  To put it another way, a representative is just a member of the public who is allowed to read some confidential documents, request a review and support somebody in their appeal (if they choose to).  They are not an attorney or deputy for an incapacitated adult.  They could not sign a tenancy agreement, refuse or consent to surgery on their behalf, sign a cheque for them, etc, so it would be odd indeed if they enter into binding agreements that sign away a detainee's rights under Article 5(4).  Whether or not this issue of proper legal authority would apply to arbitration of other disputes involving incapacitated adults is also an interesting question.  My guess is that it depends on how far one can draw the analogy of arbitration of these kinds of disputes with Court of Protection proceedings where P is not joined as a party, and whether arbitration can offer the same safeguards to justice for P in such circumstances as the court itself does.