Some good news, some interesting news, and an appeal for information!

In case you haven't already visited the University of Nottingham's Mental Health and Capacity Law blog, can I point you towards two great blog posts on two great ECtHR rulings.  The first is X v Finland, a case concerning the application of Article 8 ECHR to forced treatment.  The ruling found that because forced treatment was an interference with a person's Article 8 rights, 'the domestic law must provide some protection to the individual against arbitrary interference with his or her rights under Article 8' [217].  The court was particularly concerned that 'the applicant did not have any remedy available whereby she could require a court to rule on the lawfulness, including proportionality, of the forced administration of medication and to have it discontinued' [220]. Over at the Mental Health and Capacity Law Blog it is suggested that this may have repercussions for compulsory treatment under the Mental Health Act 1983, because although we have - on paper - Wilkinson hearings, 'It is difficult to see that Wilkinson offers the sort of serious and practical legal challenge to involuntary treatment that the court in X would seem to want.'

Lindsey Pike: Safeguarding adults and the social care White Paper

I'm delighted to host this post on safeguarding adults and the social care white paper by Lindsey Pike. Lindsey was recently awarded a doctorate by the Plymouth University for her research on maximising the effectiveness of safeguarding training in adult social care. Lindsey now works as a research and development officer at Research in Practice for Adults in Dartington.

One of the 6 principles underpinning the approach in the social care White Paper is that

“People are treated with dignity and respect, and are safe from abuse and neglect; everybody must work to make this happen”.

Some thoughts relating to are outlined below.

The Cheshire effect?

Just a quick one to draw your attention to the two latest official reports on the deprivation of liberty safeguards (DoLS).

The first is the third annual report on the DoLS, published by the NHS Information Centre. The report indicates that DoLS applications continued their year on year rise in the third year, contrary to the predictions of the impact assessment. The impact assessment predicted that the number of authorisations would fall year on year, but that was predicated on the assumption that the DoLS would be applied to 21,000 people in the first year - when in reality there were only 7,157. Even in their third year, there were only 11,393 applications.

Spartacus: Why you should be worried about Worcestershire

Worcestershire County Council are consulting on a policy to cap adult social care expenditure at the cost of a care home placement.  This will force thousands of care service users to choose between living with unmet care needs, or moving out of their homes and into an institution.  Worcestershire's consultation is scant on detail, it does not discuss the savings it proposes to make and it does not explain how it will address the huge equality and human rights issues raised by this policy.  This policy, if passed, would set a very worrying precedent for the rest of the country.  The Spartacus Campaign have produced a report, a summary report  and a blog post expressing their concerns.  You can respond to the consultation here.

Worcestershire County Council (WCC) are consulting on a policy to cap the maximum cost it will spend on care services at the cost of placing a person in a care home. If you feel bothered by this proposal, it would be great if you respond to Worcestershire's consultation on it, and perhaps your MP as well. Contact details for both follow below.

Ten signs of trouble with the deprivation of liberty safeguards

(A pdf copy of this post is available here)

Recently I've been trying to encourage various organisations to pay attention to the problems with the deprivation of liberty safeguards. The Mental Health Alliance recently published a second review of the DoLS, confirming that there are serious problems with the safeguards. Drawing from their report, and my own research, here are ten reasons why organisations with an interest in human rights should be really worried about the DoLS:

Is there an ongoing lack of CQC inspections in residential care for adults with learning disabilities?

Back in 2004 the Commission for Social Care Inspection (CSCI) and the Healthcare Commission were tipped off by a local branch of Mencap that adults with learning disabilities were being abused in services run by Cornwall Partnership NHS Trust. The report that followed their joint inspection made headlines, a police investigation followed and documented horrific abuses - although in a decision that continues to puzzle abuse victims and their families, no prosecutions ever followed. Last year, abuse victims from Cornwall won a large payout from a civil claim, but as one carer told a local newspaper, 'the scars never go away'.

The Cornish scandal is often associated with assessment and treatment centres, but what is often forgotten is that the majority of victims were not in healthcare settings but in supported living services run by the health trust. Following the Cornwall scandal, the Healthcare Commission launched a nationwide audit of inpatient healthcare services, producing a hard hitting report entitled A Life Like No Other (2007). The report concluded that adults with learning disabilities in healthcare settings experienced highly restrictive and institutional regimes, had little support to maintain or build relationships, had few meaningful activities to occupy them, little access to advocacy services. The report concluded 'We cannot be sure that the human rights of people with learning difficulties are always upheld.' In the early days of the Care Quality Commission (CQC) a small sample of these healthcare services were revisited, and depressingly the report found that little had improved (2009).

Deprivation of liberty and the struggle for meaning

The meanings of words are where battles are fought. Philosophers have known, since the linguistic turn, that meanings are slippery things - prone to evolution and change, impossible to exhaust, impossible to fix. And yet - so much rests on meanings, and nowhere is that more apparent than law. Several schools of discourse analysis are premised upon the idea that the use of language is a form of struggle. Writing in the twentieth century, Russian philosopher Mikhail Bakhtin asked 'who owns meaning?' and concluded that we 'rent' meaning from the community, but that as members of that community we also shape it. Efforts to shape it can bring us into conflict, and efforts to use it carry the 'taste' of other meanings which we did not intend. Famously, Ludwig Wittgenstein decided that he hadn't, after all, solved all the problems of philosophy in his Tractatus, with a theory that the meanings of words correlated with what can be pictured in the world. In an even more inscrutable set of aphorisms (which he sent to his former tutor, Bertrand Russell, with a letter stating “Don't worry, I know you'll never understand it”) he concluded that meanings were not somehow given by the universe, logically dictated and lying in wait to be discovered. Meanings were simply how we used language to accomplish things, and as uses changed, so would meanings. An array of post-structuralist philosophers have argued that the way we use language and meanings are intrinsically linked to their socio-historical context, tied up with power and politics. Laclau and Mouffe, in their writings on discourse analysis, argue that we can understand political struggles by exploring struggles to fix meanings of key signifiers (words, phrases, symbols etc). One excellent example of recent times is the struggle to fix the meaning of marriage, with some of the churches contending that marriage can only mean a union between a man and a woman, and other groups wanting to use that term in a different way. To the churchmen, apparently, it is obvious that marriage can only mean this, but those schooled in the linguistic turn would point to the fundamental instability of meanings, their constantly changing and evolving use, and ask 'well why not?' They would understand this not as a debate on the internal logics of definitions but a wider struggle for meaning that brings significant material, social and political effects.