The state isn't always better, but profit usually makes things worse

In the wake of Winterbourne View we are all looking for answers to the questions: How did this happen? How can we prevent it from happening again?  There are as many different answers to this question as there are different responders.  But there are difficulties with any one size fits all answer.  It's easy to blame it on the regulatory model, but as the Serious Case Review (SCR) showed CQC was one agency among many which failed to respond adequately to whistleblower allegations.  We could blame it on the model of care, and it was a vile model of care - storage, not support, as Neil Crowther put it.  But abuse happens in community based care homes and supported living settings as well.  Another pattern, which I want to discuss today, is to blame it on the privatisation of health and social care services.

DoL or No-DoL?

[Update! Check out 39 Essex St barrister Neil Allen's guide to 'Restriction on liberty or deprivation of liberty', which he's kindly said I can post here]

I have made a map to help you find  your way through the labyrinth of Court of Protection and Court of Appeal rulings on the meaning of deprivation of liberty.  Actually, you'll probably just find yourself going around in circles - take a piece of string, and watch out for Minotaurs!  Enjoy - and let me know if you spot any mistakes.  All the hyperlinks should link to the judgments, and the cases in bold are unlawful detentions.  You can download a pdf copy from here, or a powerpoint slide here.


(I know. I need to get a life.)

Winterbourne

On Friday, the last member of staff from Winterbourne View hospital in Bristol charged with ill-treatment or neglect under the Mental Health Act 1983 (MHA) pleaded guilty.  I had planned to go to court to watch the trial, but  in the event the victims and their families were saved the additional pain of the evidence being picked through and watching efforts to defend the indefensible.  This last defendant, Michael Ezenagu, is shown in the Panorama footage twisting a patient's wrists and fingers behind her back as she sits on the sofa, not threatening herself or anyone. Later on he says 'she’s a nice girl you know, but when she’s in a bad mood the only language she understands is force.'  And until last Friday, he was going to plead not guilty to ill-treatment.  It is hard to fathom what, precisely, he thought this footage showed, even now, even after over fifteen months to think about it.

With no trial, the reports on Winterbourne View that had been delayed so as not to prejudice a jury came tumbling out.  Mencap and the Challenging Behaviour Foundation produced a report, Out of Sight, which drew heavily from the experiences of families of the Winterbourne abuse victims and those in similar situations.  Although it wasn't written in connection with Winterbourne View, it's worth connecting their evidence of an absence of alternative services to this report by the National Development Team for Inclusion on why these services still exist, despite their huge cost, poor outcomes, and being discredited by policymakers, academics and campaigners.  The Care Quality Commission produced their internal management review of regulatory involvement and failings in Winterbourne View - it appears, like their recent report on the learning disability services inspection program, to have been written in regulatorese.  Much ink has been spilled about the CQC's new 'whisper softly but carry a big stick' approach; the Out of Sight report complains about the linguistic shift that came with the creation of the CQC:

Allan Norman: Corollaries of the Right to Life: A Duty to Live or a Right to Die?

It's a pleasure to host this carefully argued guest post by solicitor and social worker Allan Norman on two important Court of Protection rulings on the 'right to die'.  Allan takes up issues around the presumption of capacity, personal autonomy, quality v quantity of life, and the controversial question of whether resources should have a bearing on these decisions.  If anybody would like to respond to Allan's arguments or arguments elsewhere on these cases, please use the comments below or get in touch if you'd like to write a guest post.

 Re E (Medical treatment: Anorexia) (Rev 1) [2012] EWHC 1639 (COP) (15 June 2012)

Thou shalt not kill, but need not strive
Officiously to keep alive
- from The Latest Decalogue, by Arthur Hugh Clough

A British Medical Journal editorial last month argued, 'Sanctity of life law has gone too far'. The Emeritus Professor of Medical Ethics, Raanan Gillon was specifically critiquing a judgement of the Court of Protection last year, W v M and Others [2011] EWHC 2443 (COP) (28 September 2011). That case held, notwithstanding the previously expressed wishes of the person concerned, who was in a minimally conscious state, that it was in their best interests to be kept alive, and that it was properly a matter for the court to decide. Gillon's editorial criticises the approach taken to best interests that overrides express wishes, the requirement to involve the court in best interests decision making, and the resource implications. The editorial has itself been criticised, as the UK Human Rights Blog has highlighted, as a call to "dehydrate dementia patients to save money". And that critique of Gillon resonates with another recent media story from another prominent health professor about the Liverpool Care Pathway, 'Elderly patients 'helped to die to free up beds', warns doctor'. With raw nerve criticisms like that, I am staking a lot when I defend Gillon's arguments, as I do here.

Should we be using 'special' offences for crimes against disabled people?

Imagine a person came into your home uninvited, threw cold water over you to get you out of bed, forcibly gave you a cold shower, locked you in your room and tied your arms to a wheelchair so that you couldn’t move them, or out of the chair, for 16 hours. Would you consider that you had been the victim of a crime? Battery and false imprisonment, perhaps?  Imagine somebody removed you from your home without any lawful authority, and you were locked in another place away from those you loved, unable to escape. Have you been kidnapped? Should somebody call the police?

These things happen in care, they aren’t common – but they aren’t especially infrequent either. We know they happen because they are detailed in regulatory reports, in civil law proceedings. But what struck me recently was how rarely the police are involved in these types of situations, and how rarely criminal charges are brought. I began thinking about this because I’ve been looking into the background of the criminal offence of ill-treatment or wilful neglect of a person who lacks capacity, introduced by s44 Mental Capacity Act 2005 (MCA), itself modelled on the offence under s127 Mental Health Act 1983 (MHA). Section 44  MCA is not unproblematic from the perspective of the Convention on the Rights of Persons with Disabilities (CRPD), where there is a general preference for promoting and protecting disabled peoples’ rights through  making mainstream mechanisms more accessible and inclusive, rather than developing separate systems for rights protection (e.g. Inclusion Europe, European Disability Forum). Even setting aside the complex and contested questions as to whether the label ‘incapacity’ is even compatible with the CRPD, the question is: why is an additional offence of ill-treatment or neglect of a person who lacks capacity needed, rather than making mainstream criminal offences more ‘inclusive’ and ‘accessible’ to disabled victims? I’m no criminal lawyer, but the more I looked into this, the harder it seemed to be to explain from any legal perspective why mainstream offences could not be used, and are so rarely investigated, in the context of care.

Interesting articles on capacity and deprivation of liberty

There are several brilliant pieces of writing about mental capacity and deprivation of liberty readers might be interested in.

The first is a blog post by Mark Neary relating 'a complete work of fiction' which describes the difficulty a person may have in challenging a detention if it isn't authorised under the DoLS.  The problem is that often authorisation is never sought by managing authorities, or it might be sought but later on revoked because the supervisory body decide it's not actually a deprivation of liberty because the person has nowhere else to go, or their assessors hadn't heard the person object - even though everybody else has, or because the restrictions are 'necessary', or whatnot (assisted, no doubt, by the high level of uncertainty and contradiction in Article 5 case law).  Without a DoLS authorisation there's no more advocacy rights, no more legal aid, no more permission-free routes to the Court of Protection to challenge it.  So getting there requires a huge level of determination and awareness of the legal process, not to mention a hefty injection of your own cash - which you might never see again because of the general rule on costs in the Court of Protection.  Basically, there's a technical right to challenge this "non-detention", but it's pretty inaccessible and comes with a huge price tag.  Cynical supervisory bodies could revoke DoLS authorisations as a particularly sneaky chess move where litigation looks likely, and those deprived of the safeguards will struggle to have recourse against this.  And as Mark points out - and particularly for older people - sometimes by the time these cases actually get heard, a person may have been detained for so long that the odds are stacked against them being released from detention to return home due to skills lost to institutionalisation, declines in health or even homes sold to pay for care or lost tenancies.  Frankly some certainty as to the scope of Article 5, to help detainees and their supporters argue forcibly that the DoLS should apply, cannot come soon enough.  In the longer term, the whole approach will have to be rethought.