CQC's second monitoring report on the deprivation of liberty safeguards

The CQC have published their second monitoring report on the deprivation of liberty safeguards (DOLS), and it contains many welcome improvements on their first monitoring report (which I was extremely disappointed with).  This is hopefully a reflection not only of the DoLS becoming more embedded and (slightly) better understood, but also the CQC's own monitoring role becoming better established.   I had a sense, reading the report, that the report's authors had tried to do a lot with the materials and information they had available to them.  The report also contained awareness and reflection on the limitations in CQC's monitoring role and a pro-active strategy is being developed to enhance CQC's own understanding of DoLS, and their methods for monitoring and reporting on it.  There are definite signs of growth of their role in interesting new directions.  However, I still feel frustrated that three years into the operation of the DoLS, CQC have yet to find a coherent strategy for monitoring the framework in its entirety, as opposed to cobbling together what they have gleaned from the bits which pass their way in the course of their ordinary regulatory activities.  Their task is not easy, for reasons I'll outline below, but that shouldn't become an excuse for not taking those steps to gather more information which are within its powers.

Incapacity and tenancies - new guidance, but could there be trouble ahead?

The Court of Protection has issued some new guidance (here) on when it is advisable to make an application to the court in relation to a tenancy for a person who lacks the mental capacity to enter into a tenancy agreement.  This replaces earlier guidance issued last year.

As readers may be aware, last year a tribunal ruled that housing benefit was not payable to cover rent incurred through a tenancy agreement that was entered into on behalf of a person who lacked capacity  without the requisite authority of an LPA, deputyship or order of the Court of Protection.  The ruling in Wychavon District Council v EM [2011] caused significant consternation among housing providers, and groups involved in the care of adults with learning disabilities, as potentially it cast doubt on the viability of many supported living arrangements.  At the time of the original ruling, Neary Legal wrote an excellent post explaining why he felt the Wychavon ruling was flawed, and earlier this year the judge returned to the ruling and reversed it (see Nearly Legal's summary of this second decision here).  This turnaround must come as a huge relief to local authorities, carers, housing providers and those supported living residents whose very homes were potentially at risk as a result of the ruling.  I should expect it's something of a relief to the Court of Protection as well, who could have been flooded with emergency applications for orders for tenancy agreements!

Mark Neary: What price carer's assessments?

I am proud to host this guest post from Mark Neary (whose name may have a familiar ring to readers), about carers' assessments. Mark, Liz Jones and other colleagues in the Carer's Solidarity Group (FB) have been putting together a fascinating, but shocking, piece of research showing how much of unringfenced carers' grant money is actually spent on carers. Any carers reading this might want to know there is information about your legal rights available here, and I especially recommend this free guide (pdf) on carers and the law by Luke Clements and Carers' UK. If you want to read more of Mark's writing, you can purchase a copy of his book about the long journey to getting his son home here.

Over the past couple of years, I have become more and more interested in how the idea of a false reality (or false consciousness) that is prevalent in much of our lives today, has become such a central part of the adult social care world. Why is that when I am told “we are acting in your best interests”, does my reality feel that is someone else’s best interests that are being served. Why, when my son is asked to participate in the drawing up of his own person centred plan and must come up with a wish list, are all the items on his wish list rejected as “unsuitable or inappropriate”. Why, am I constantly being told that individual budgest are all about “choice and flexibility” and then discover that I have only one option for respite. Why, after selling me direct payments as “user and carer empowerment”, do I feel thoroughly dis-empowered?

Lords vote against human rights in homecare

It's almost five years now since the House of Lords decided to favour the commercial "rights" of care providers to dispose of their resources as they saw most profitable over the human rights of care service users in the ruling YL v Birmingham City Council (2007).  So what happened next?  As I've written before the issue turned on the definition of a 'public authority' under the Human Rights Act 1998 (HRA).  The Lords in YL v Birmingham City Council had decided that a care provider, providing services funded and commissioned by the state, was not a 'public authority'.  It is often said that this is just the kind of situation that parliament had intended to be covered by the HRA; yet I increasingly doubt that.  What parliament say is one thing, what parliament do is another.  Since the YL ruling, five years ago, there have been successive efforts to close the 'loophole' in human rights protection of care service users, most of which have failed (I've detailed some of them here).  One passed - s145 Health and Social Care Act 2008 - which did not - as many people have claimed - cover all care service users, nor even all residential care service users - it only offered protection to people placed in residential care under the National Assistance Act 1948.  As was pointed out by the Equality and Human Rights Commission (EHRC) in their excellent report Close to Home, anyone receiving home care was unprotected (which also includes 'supported living' and some 'Extra Care Housing' models of care).  But as is less often pointed out, plenty of other social care service users also fall into the 'loophole'.  And yesterday, yet another attempt to remedy the YL ruling failed in parliament.

The mental capacity shopping channel

Am I the only person who gets improbably excited to see the 39 Essex St Court of Protection Newsletter in my inbox each month?  It's like all my Christmases have come at once, as today I received a copy of the consolidated volume (2008-11) of the Court of Protection Law Reports, produced by Mr Justice Baker (Editor in Chief), Judge Denzil Lush and District Judge Marc Marin (Consulting Editors), 39 Essex St barristers Victoria Butler-Cole and Alexander Ruck-Keene, and Eason Rajah QC of 10 Old Square (Editors).  But before you panic (like I did), I'm told that the much loved 39 Essex St newsletter will continue.  The consolidated volume, and the new series of law reports are published by Jordans.

Get lost in mental capacity law at Autonomy Summer School!

If you're interested in, affected by, or use, the Mental Capacity Act or the Mental Health Act, then I can't recommend enough that you get over to the Essex Autonomy Project webpages and check them out.    The Essex Autonomy Project is based in the Philosophy Department at the University of Essex.  Their well researched and clearly written Green Papers and Research Briefings give excellent summaries of issues in mental health and mental capacity law, often providing interesting nuggets of historical information, tracing the evolution of ideas like 'best interests' and the 'inherent jurisdiction', and even introducing a comparative flavour with descriptions of practices in other jurisdictions.  My personal favourite is the report on the history of consent, which I'd make required reading on any medical ethics course.

Neurodiversity, institutions, incapacity

I've mentioned Amanda Baggs, author of Ballast Existenz, a few times on this blog.  For those of you who haven't heard of her she's probably best known for her YouTube film In My Language, which went viral in 2007 and brought Baggs - and the wider Neurodiversity movement - to the attention of the mainstream. If you haven't heard of the Neurodiversity movement, and you have any kind of interest in mental health, then I can't recommend enough that you read about it.  There's a pretty good Wikipedia page (and you could also look up the associated Mad Pride and Autism Rights movements).  Jim Sinclair has written a history of the movement here; a seminal moment in the movement was Sinclair's delivery of a presentation called 'Don't Mourn for Us', a paper particularly directed at parents grieving their children's autism and hoping for a cure, at the International Conference on Autism.  The diagnostic criteria for Neurotypical Disorder from the DSM (diabolic and statistical manual) are a good example of the powerful yet playful activist techniques of the movement, inverting and calling into question dominant ways of thinking about 'mental disorder'.  Although the movement finds many supporters among carers and professionals, it is also positioned in many respects in opposition to the orthodoxies of professionals and NGO's purporting to represent the interests of autistic and other groups.  Indeed, their celebration of a positive 'neurodiverse' identity sparks such high tensions that some counter-movements blog have sprung up, but they're so vile in content that I can't bring myself to link to them here.

The legal establishment and the "right" to Independent Living

[Update 01/08/2012: Neil Crowther drew to my attention that a subsequent case relating to housing benefit, Burnip v Birmingham City Council & Anor (Rev 1), rejected the approach of the court in NM v Islington towards the CRPD, discussed below.  In Burnip the court held that the CRPD was a legally binding treaty, and if there was any uncertainty in how domestic anti-discrimination laws should be interpreted, he would use the CRPD as an aid to interpretation.  The ruling in Burnip is reassuring for supporters of the CRPD, but less reassuring are the efforts of the government's own counsel to attempt to marginalise the CRPD's relevance by reference to its maturity and chronology (see paragraphs 19-22).  It seems extraordinary, and rather depressing, that a government should seek to distance itself in this way from a treaty that it has itself ratified!]

It's sad but ironic that the day before the Joint Committee on Human Rights (JCHR) launched its report on the rights of disabled people to independent living under Article 19 of the Convention of the Rights of Disabled Persons, the legal establishment confirmed that it was going to ignore the most important treaty on human rights for disabled people for a bit longer.  In R (NM) v London Borough of Islington & Ors [2012] the claimant was in prison and had "significant learning disabilities" [2], and two councils were squabbling over who would have to assess and meet his community care needs when he came up for parole.  NM had sought judicial review of Islington's refusal to conduct a community care assessment under s47 NHS and Community Care Act 1990, and they were refusing on grounds that he was not 'ordinarily resident' in Islington.  He failed in his claim, and I won't discuss the detail of the court's analysis of domestic community care law here (although Allan Norman of Celtic Knot has done a great job of that here and pointed out the flaws and worrying consequences of the ruling).  What is interesting is that the claimant had hoped to rely in part on Articles 19 and 26 CRPD - the right to independent living (19) and the right to habilitation and rehabilitation (26).  From paragraphs 98-107 the court considers whether the CRPD can be relied upon in domestic courts and concludes it cannot because: