Happy Christmas

It’s Christmas Eve.  The cat has been bundled into the car, driven up the M5 and is now eyeing up my in-laws’ Christmas Tree.  Carols from Kings is on the radio.  The presents are wrapped, tomorrow’s veg are being prepared, I am drinking a cup of mulled tea (I know: mulled tea, it’s quite nice) and it seemed like a good time to redesign the blog.  This one’s for you Richard.  Happy Christmas, season’s greetings and have a wonderful new year everyone.  Now I’d better go and retrieve that cat...

More questions than answers - on the 'forced caesarean' case

[Update 04/12/2013: The judgment in the Court of Protection hearing of this case has now been published, as has one of the judgments in the public law Children Act proceedings.  On the Court of Protection judgment, I recommend reading the commentary by Nell Munro, Suesspicious Minds and Elizabeth Prochaska's piece on the Birthrights blog]

On Saturday, the Telegraph ran a Telegraph column by Christopher Booker , with the headline ‘Operate on this mother so that we can take her baby’. The column alleged that the woman had been visiting from Italy for work reasons when she was detained under the Mental Health Act 1983 in connection with bipolar disorder. One morning she was given no breakfast, then (according to Booker) ‘She was strapped down and forcibly sedated, and when she woke up hours later, found she was in a different hospital and that her baby had been removed by caesarean section while she was unconscious and taken into care by social workers’. An application to place her child for adoption is now before the courts, some fifteen months on. According to Booker, ‘social workers’ had been given permission to arrange this by the High Court.

By the end of Monday the Mail, the Independent, even the Guardian had regurgitated versions of this story, quoting reaction from various public figures and commentators. Shami Chakrabarti of Liberty described the case as ‘the stuff of nightmares’, an Italian judge has described it as resembling ‘a horror film’. By the end of yesterday the Judicial Office were tweeting that ‘Proceedings not yet concluded; President of Family Division has ordered the matter be transferred to High Court. President of Family Division has order any further applications in respect of the child are to be heard by him.’ There are now several hundred news stories about the case, and the mother concerned has sent a ‘message of thanks’ to the British people for their support.

If reports are correct – that the mother really was forcibly sedated, the baby delivered by caesarean with the express purpose of removing the child from her care and giving it up for adoption, and the mother and her own family was entirely kept in the dark about this plan – this does indeed sound like the stuff of nightmares.

But for those of us familiar with the work of the Court of Protection there were a number of alleged facts about this story which simply didn’t stack up. One common theme in the reporting of this story is the idea that the caesarean was for the protection of the child, not the mother, and that it was initiated by the local authority – Essex County Council – as part of their child protection role. This didn’t stack up to me, and – in fact – turns out not to be true. Essex Council have released a timeline of events which reveals that it was the Health Trust who applied to the Court of Protection for the caesarean, and their application for an interim care order (relating to the child) came a day later, in August 2012. This made sense to me, as although it is not unprecedented for a local authority to apply to the Court of Protection regarding a healthcare intervention, it is unusual – and in any case the Court would have to be satisfied that doctors felt the intervention was clinically necessary and were willing to deliver it.

The Ombudsmen find maladministration causing injustice in a case involving the deprivation of liberty safeguards

One of the recurring themes that has come up before the House of Lords Select Committee on the Mental Capacity Act 2005 (MCA) is a lack of redress for non-compliance with the MCA and the deprivation of liberty safeguards (DOLS).  The Lords have asked on several occasions whether there is a need for a 'bigger stick'.  A fortnight ago, Alex Rook from Irwin Mitchell Solicitors told the Committee that part of the problem is that:

...the Court of Protection is ...a forward-looking court, which is generally a good thing. When you come to the court, the question before it is: what is in this person’s best interests? The court is often described as being inquisitorial rather than adversarial. You do not win or lose: you just establish what is in this person’s best interests. That almost acts as a disincentive to look at what has happened in order to get there in the first place. I am sure as well, partly due to resources and time, that the court is quite often quite reluctant to look at what has gone wrong rather than at how we solve it. That is perhaps in contrast to a lot of other civil proceedings, where you are generally looking backwards and saying, “What has happened there? Was it right or was it wrong?”.

He gave an example of a case where this was an issue:

Call for papers: SLSA Annual Conference Mental Health and Mental Capacity Law stream

Every year the Socio-Legal Studies Association holds an annual conference, with a fantastic stream on Mental Health and Mental Capacity Law (co-ordinated by Peter Bartlett).  It's one of my favourite conferences, and is attractive to people from a range of backgrounds, not just legal, as the papers use many different methodologies and it touches upon many issues of broader policy and critical relevance.

The call for papers for the 2014 annual conference has opened.  As the call points out, this could be a very interesting year:

Postcode lottery in DoLS review mechanism

Under the Mental Capacity Act 2005 deprivation of liberty safeguards (DoLS) an authorisation to detain a person is subject to a review process.  The DoLS are administered by supervisory body - these are local authorities, but in the past they were also PCTs (before these were abolished).  The supervisory body is responsible for authorising the detention in the first place.  They may also conduct a review at any time to ensure that the qualifying requirements for detention under the DoLS are still met.  The managing authority (the care home or hospital which the person is detained in) must request a review if it appears to them that the person may no longer meet the qualifying requirements for detention under the DoLS, or the reasons why they meet the qualifying requirements may have changed.  A review may also be requested by the relevant person themselves or their representative.

Fighting fund for LB

The post I wrote about the death of LB, Sara's son, in an assessment and treatment unit for people with learning disabilities, is one of the most read posts from this year.

Sara's fight for justice for LB, for an independent investigation into his death, is ongoing and has had several twists and turns.  At one point the family were refused the advocate of their choice (indeed any advocate) in the investigation process, but this decision was eventually reversed.  The family came across a recent Clinical Commissioning Group’s Quality and Performance Report report on the unit which raised concerns about the way serious incidents requiring investigation (SIRIs) were investigated.  However, the Trust have now commissioned an independent investigation, much to the family's relief.

There will be an inquest into LB's death, and the family would like legal representation, in their words 'to find out exactly why LB died, and what changes should be made to ensure that no other dudes experience what he experienced.'  This costs a great deal of money, however, and as the family point out it is so unfair that 'Our son died, in the ‘care’ of the state, and we have to pay. Another example of a stinking system'.  Although they are receiving some pro bono support, it is not enough to cover the costs in full.  So they are looking to raise £10,000 towards the cost of legal representation.  If you would like to contribute, you can read more about the fighting fund for LB here, and here is the fundraising page.  You can make a donation, and/or order some cards or prints of pictures by LB, including this beautiful picture of a bus:.

One last story about the guy we're fighting for, my personal favourite - LB and the failed kebab:

“Hey LB! How did meal prep go today?”
“Not good Mum.”
“Oh. Why not?”
“I failed Mum.”
“Whaddayamean, you failed?”
“I failed Mum.”
“Why? What did you cook?”
“Kebabs Mum.”
“Oh, I don’t get it. What went wrong?”
“I didn’t have a skewer Mum.”
“Oh. Why not?”
“Dunno Mum.”
“So what did you eat for lunch?”
“Bits Mum."

If anyone has any fundraising ideas for LB that they'd like to publicise on this blog, drop me an email.

Judicial review of decision to close the Independent Living Fund succeeds

Apologies for this fleeting post, but I wanted to bring to people's attention the Court of Appeal's decision in Bracking & Others v Secretary of State for Work and Pensions.  The Court of Appeal found that the decision to close the Independent Living Fund did not have sufficient regard to the impact it would have on people with disabilities.  The Court quashed the decision, and the government (unless it successfully appeals this decision) must make the decision again.  Of course, they may decide - after another consultation process - to make the same decision, but this ruling makes clear that they cannot do so without really acknowledging the impact it will have on the lives of people using the Fund.

A statement by the appellants - Anne Pridmore, Gabriel Pepper and Stuart Bracking - follows below, but you might also find it interesting to read what others have written.  Neil Crowther discusses the role of the Public Sector Equality Duty in the judgment, and Rich Watts argues that if the ILF closes we should retain its better parts (which the government's impugned approach would not have).  A legal briefing by Deighton Pierce Glynn solicitors is available here (pdf).  Disabled People Against the Cuts have begun an Independent Living Rights newsletter (edition 1, edition 2).

Meanwhile, the marvellous Tourette's Hero (whose blog you really should read - it will brighten your day and generally make your life a better place) has written about what inability to access ILF means to them:

My quality of life should not be dependent on the sort of friends and family I have, but at the moment it is. I do not have equal access to a full life (though I might well have done had my tics got worse a year or two earlier) and the extent to which I’m able to live in my community is very largely dependent on the community of friends who make this possible. I’m extremely thankful for them, but even so I don’t always choose how I spend my time, I have to negotiate it.

Statement by Anne Pridmore, Gabriel Pepper and Stuart Bracking

Detained patients' awareness of the mental health tribunal

Hot on the heels of the judgment in MH v UK, which found that there are positive obligations to enable a person to exercise their right to bring proceedings to seek a review of the lawfulness of their detention where they would be unable to do so without assistance, a new study has examined how many patients who are detained under the Mental Health Act 1983 might fall into this category.  The study is by Nuwan Galappathie, Rajendra Kumar Harsh, Mathew Thomas, Amina Begum and Danielle Kelly, and is published in The Psychiatrist (paywall, sorry, but you can still read the abstract).  The study looked at patients in a secure hospital, and the results may vary across other types of hospital, but it found that 78% of patients were aware of the Tribunal's power to discharge (far fewer were aware of its powers to recommend leave or transfers).  It found that patient's who understood the Tribunal's powers received more completed hearings per year, both overall and by patient's application.  This means that the mechanisms to make a referral to a Tribunal on behalf of a patient are not compensating for the patient's inability to exercise that right himself.

Another finding was that very few patients understood that the Tribunal was independent.  The authors' hypothesised that lack of awareness of the Tribunal's independent status may discourage detainees from making an application.

The authors recommended that hospital managers consider the capacity to patient's to make an application to the Tribunal, and consider referring cases to the Secretary of State (for a Tribunal referral) every 12 months.  The paper does not discuss the ruling in MH v UK (no doubt because it was written before the judgment came out), but clearly this advice would be strengthened by that ruling. 

Responses to the House of Lords Select Committee on the Mental Capacity Act 2005

Just a quick one to alert you to some interesting responses to the House of Lords Select Committee on the Mental Capacity Act 2005 call for evidence.

The Law Society have submitted their evidence (that link is hosted by MHLO), and while you're reading that you might also want to take a peek at their warning on the latest issue to arise under the DoLS - a new problem with legal aid has cropped up.

If you're interested in the issues around the compatibility of Article 12 of the UN Convention on the Rights of Persons with Disabilities and the MCA, then you might want to take a look at the interesting evidence submitted by the Mental Disability Advocacy Centre  and the Centre for Disability Law and Policy at NUI Galway.

Since the Parliamentary recess ended, the Select Committee has been up and running and hearing oral evidence again, including evidence from social work bodies as well as the British Institute from Human Rights, SCIE and those involved in the implementation of the MCA, bodies representing medical practitioners, regulatory bodies and - tomorrow - will hear from representatives of NHS England, Healthwatch England and the National Care Association.  The Committee will report in February 2014.

Government responds to the Parliamentary Health Committee's post-legislative scrutiny of DoLS

Earlier this year, the Parliamentary Health Committee conducted post-legislative scrutiny of the Mental Health Act 2007.  The Committee described the situation regarding the deprivation of liberty safeguards as ''profoundly depressing and complacent' and gave the government a year to conduct a review and develop an action plan.  The government has published its response to the Committee.

The best element of the response is that they have set up a Mental Capacity Act Steering Group to review the evidence heard by the Committee.  This is great, and hopefully it might go some way towards restoring the vacuum of leadership in relation to the Mental Capacity Act and the deprivation of liberty safeguards, which has been a recurring theme in evidence to the House of Lords Select Committee.

Remembering John

Some readers will have had the privilege to have met, perhaps even worked alongside, John Leighton.  John was a DOLS team leader, he also worked with the Social Care Institute of Excellence on matters relating to the Mental Capacity Act and DOLS, and he was a remarkable, thoughtful and wonderful person.  He wrote this lovely and refreshingly creative commentary on DoLS judgment, which I recommend anybody with an interest in DoLS take a look at.

John died at the beginning of this year.  His absence is sorely felt, I'm sure most of all by those close to him and his immediate colleagues, but those of us who encountered him at meetings and conferences on the DoLS miss him too.  I miss chatting with him, his insights and wisdom, and have frequently wondered what he would have made of the developments of this year - the House of Lords Committee, the comments of the Health Committee on DoLS, the progress being made by CQC in their monitoring of DoLS and - of course - the Cheshire case, and the case of MH.  If you are reading this and you also knew and miss John, you might be pleased to know that a website has been set up to share memories and celebrate his life.  His family have kindly said I can link to it here.  It is a beautiful and wonderful tribute to a beautiful and wonderful person. 

MH v UK: Implications for the deprivation of liberty safeguards

Whilst 18 barristers fought it out over the Cheshire case in the Supreme Court this week, the European Court of Human Rights (ECtHR) handed down a judgment which could have equally dramatic consequences for the Mental Capacity Act 2005 deprivation of liberty safeguards (MCA DoLS): MH v UK.  MH v UK confirmed what I have suspected for a long time, that the DoLS fall short of the requirements of Article 5(4) ECHR - the 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'.  The key issue is that without the assistance of a third party a person detained under the DoLS is unable (in practice) to be able to exercise their right of appeal, but there is no failsafe means by which the DoLS guarantee the requisite support.  In essence, there may be duties upon various entities to assist a person in exercising their right of appeal under the DoLS, arising via the Human Rights Act 1998 (HRA).  But it is not entirely clear who, and few people - at present - are interpreting them in that way.  The million dollar question is - how do we respond to this?

The rule of personal presence - implications for the Court of Protection

A chance conversation at the ever-excellent Taking Stock conference has me thinking, once again, about the implications of some recent case law from the European Court of Human Rights (ECtHR), regarding what it calls the ‘rule of personal presence’. The ‘rule of personal presence’ is a well established element of Strasbourg jurisprudence relating to when the requirements of Article 6 (the right to a fair trial) require courts to hold an oral hearing, and when parties to a case should be allowed to attend in person. Recent judgments have considered how this applies in cases concerning a person’s legal capacity, and this will have important implications for proceedings in the Court of Protection in England and Wales.

The general rule of personal presence
The Council of Europe has published a marvellous guide to fair trial guarantees under the European Convention on Human Rights (ECHR); they summarise the circumstances in which a person has a right to an oral hearing and to be present personally. The following summary is taken from their helpful guide.

The Cheshire case – a beginner’s guide

In one week's time the UK Supreme Court will hear a case which could impact upon the human rights of tens of thousands of older people and people with disabilities living in care services. The case is actually two conjoined cases which originated in the Court of Protection about a man called ‘P’, whose care was arranged by Cheshire West and Chester Council and two sisters called ‘MIG’ (also known as ‘P’, rather confusingly’) and ‘MEG’ (called ‘Q’ by the Court of Appeal). P lived in ‘supported living’ accommodation, but was subject to close supervision by staff and restrictions on his freedom of movement to prevent him from trying to tear up and ingest his incontinence pads, which had resulted in him being admitted to hospital in the past. MIG (aged 19) and MEG (aged 18) had been removed from their family home as children due to concerns about their wellbeing there, and MIG now lived with a foster carer and MEG lived in a small children’s care home. Like P, both young women were subject to close supervision by their carers to keep them safe, and MEG was sometimes restrained and given Risperidone. The Supreme Court will be asked to decide whether or not P, MIG and MEG are ‘deprived of their liberty’ as a result of restrictions imposed by those caring for them.

The meaning of ‘deprivation of liberty’ might sound like a topic better suited to a political theory debating club, but the case could have significant implications for local authorities, care providers and people like P, MIG and MEG. The term ‘deprivation of liberty’ relates to Article 5 of the European Convention on Human Rights (ECHR), the right to liberty and security of the person. Article 5 is what is known as a ‘limited right’ – that means that people have a right to liberty except in certain carefully specified situations, and they must have safeguards.

United Nations Committee publishes draft General Comment on legal capacity and human rights

The United Nations Committee on the Rights of Persons with Disabilities is the monitoring body (and the body that hears complaints) for the UN Convention on the Rights of Persons with Disabilities (CRPD). One of the most important provisions of the CRPD (to me, and probably to readers of this blog as well) is Article 12 – the right to equal recognition before the law. The drafting of Article 12 was said to be among the most controversial of all the Articles of the CRPD, and it has posed some of the greatest problems for ratification by states. The core issues are whether or not states can use what the Committee calls ‘substituted decision making’ mechanisms, and what 'supported decision making' regimes might look like.

In their most recent session, the Committee published a draft General Comment on Article 12, which aims to throw light on the Committee’s position regarding equal recognition before the law and legal capacity. It is a very important document, and the Committee are inviting comments on it before a final version is adopted, to be submitted before the end of January 2014.

Big hearted lawyers and the Rule of Law

Usually on this blog I try to only write about something where I (hope I) have something new to add to the debate (ideally at length, and on an obscure topic of fairly ‘niche’ interest). Today I’m not going to say anything new or difficult to grasp, just something that needs saying again and again and again and shouting from the rooftops in the hope that one day somebody in government listens and does something about it: the cuts to legal aid suck, big time, and are hurting real people.

What do Part 8 Reviews under the DoLS actually do?

The Mental Capacity Act 2005 deprivation of liberty safeguards (DOLS) contain a mechanism whereby a a detention under the DoLS can be reviewed by the supervisory body who has authorised the detention.  What is the point of that mechanism, and how is it working in practice?

I think one of the most common fallacies about Part 8 reviews is that they are some kind of review process which complies with Article 5(4) of the European Convention on Human Rights (ECHR), which says that:

Everyone who is deprived of his liberty by arrest or detention shall be entitled 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.

If we cast our minds back to the case which brought the DoLS into existence, HL v UK  (the 'Bournewood case'), the absence of any (accessible and appropriate) procedure for reviewing the lawfulness of HL's detention was one of the ways in which his human rights had been violated.

CQC inspections over the last ten years: Back on the up and up...

I've blogged a lot in the past about the all-time-low in inspection of social care services in 2010-11 and the CQC's annus horribilis, so it seemed only fair to blog about the most recent data CQC shared with me about their inspections.  As the CQC's annual report for 2012-13 shows, the number of inspections of services rose from the previous year.  I asked CQC for a more detailed breakdown of the data than was available in that report, so I could see how residential care and home care services fared - as in the past they've been treated quite differently, and I wanted to look at long range patterns.  CQC's FOIA department - one of  the most helpful and speedy I've encountered in my long history of pestering public authorities for information - obliged, and what's even better is that this time the data didn't just say how many inspections they had conducted, but how many services were inspected.  That is a really important statistic, because otherwise reporting that they had conducted, say, 10 inspections and they have 10 services registered makes it appear as if all services were visited - when it could simply be that only two services were visited, but they were so bad they were inspected 5 times.  From CQC's data, it looks as if 95% of residential care services (including care homes and nursing homes) were inspected last year, and 74% of home care services.  Of course, inspection frequency data isn't everything, but it does say something about how far CQC is prioritising 'boots on the ground' which is a necessary (albeit insufficient) precursor to strong regulation.

How do Best Interests Assessors interpret ‘deprivation of liberty’? The Bristol study

Last month the Health and Social Care Information Centre published its latest statistics on the deprivation of liberty safeguards (DoLS). There was something of a dip in the number of applications in the last quarter of 2012 and the first quarter of 2013 (coincidentally, the first two quarters after the ruling in Cheshire West), and a general flattening of the year-on-year rise in applications:

This data release also showed that the extraordinary variability in the number of applications and authorisations under the DoLS between different supervisory bodies has continued into their fourth year*:

Parliamentary Committee gives Department of Health one year to deliver action plan for DoLS

The Health Select Committee has published a report of its post-legislative scrutiny of the Mental Health Act 2007 (MHA).  I've written about the MHA bits for the UK Human Rights Blog, so I won't repeat them here, but what the Committee had to say about the deprivation of liberty safeguards (DoLS) was striking.  I grumbled last year about the Department of Health's rather over-optimistic appraisal of the success of the DoLS.  It seems that the Health Select Committee did not share their views.

The Commitee noted the 'extreme' variation in application of the DoLS, and heard evidence that providers did not 'know when they were exceeding the powers it gave them and would therefore need to apply for a DOLS authorisation, or how the MCA could be used appropriately, sometimes negating a need for DOLS'.  Their implementation was marked by confusion and resistance, and the Committee felt there was an urgent need for reform.  Clinicians regretted the loss of the DoLS guidance group which the Department of Health used to run, and called for more authoritative guidance.

The Committee found the evidence it received on the application of the DoLS 'profoundly depressing and complacent', commenting:

People who suffer from lack of mental capacity are among the most vulnerable members of society and they are entitled to expect that their rights are properly and effectively protected. The fact is that despite fine words in legislation they are currently widely exposed to abuse because the controls which are supposed to protect them are woefully inadequate.

The Committee recommended that the Department of Health conduct 'an urgent review of the implementation of DoLS', to be presented to Parliament within 12 months, 'together with an action plan to deliver early improvement.'  It will be very interesting to see what they produce.

Judicial review of Worcestershire's Maximum Expenditure Policy decision fails

...the Cabinet well-understood that the proposed policy sought to balance the Council's policy objectives of supporting disabled people to live full and independent lives within their local communities, and its obligations in relation to public expenditure; the policy sacrificing choice and control by service users to some degree, in favour of reducing public expenditure. That was its very purpose. [52]

Those of you worrying about Worcestershire County Council’s Maximum Expenditure Policy, which sought to cap the value that would be spent on a package of care at the cost of a residential care placement, will be disappointed to learn that a judicial review of the lawfulness of the consultation process for adopting this policy, has failed. This is disappointing for the claimant, who was motivated by concern that her son (who she said needed 24 hour support) would be left with residential care as the only viable support option, for others in Worcesteshire with similar concerns, and for those concerned that other local authorities may now be motivated to adopt a similar policy.  I have a thousand things to do this week so I can’t spend as much time blogging about this as I would like to, but I just wanted to observe a couple of things about the judgment. 

Your BIHR Guide to giving evidence to the House of Lords on the Mental Capacity Act

Have you got a story to tell about the Mental Capacity Act?  Perhaps you or a friend or relative has experience of capacity assessments and best interests decisions?  Perhaps you or a relative has experience of the deprivation of liberty safeguards, or have to administer them?  Perhaps your work means you have to use the Mental Capacity Act?  Maybe you have been involved in proceedings in the Court of Protection?  The House of Lords has set up a special Committee to consider the Mental Capacity Act 2005.  They want to hear what people with experience of the Act think about it.

This is a unique opportunity to tell Parliament about your views on the Mental Capacity Act, the deprivation of liberty safeguards and the Court of Protection.  The Committee have produced a call for evidence, but if answering that list of questions sounds a bit daunting, don't worry.  Those fabulous folk at the British Institute of Human Rights have produced a guide to the Committee.  The guide will tell you all about why the Committee was set up, and it will give you advice on how to give your views to the Committee.

If you want to talk about your experiences of the Court of Protection it is very important that you know that ordinarily you cannot publish information about the proceedings (for example, on Facebook or other websites, or in other media).  However, special rules apply for Parliamentary Committees so you can still write to them.

If you know somebody with a story to tell about the Mental Capacity Act, who might struggle to do so without help, think about how you can help them to make their voice heard.  This guide from the British Institute for Human Rights can help you to do that.

Eligibility – a new gap?

The Court of Protection case about the Iranian doctor on a hunger strike because the UK Border Agency had confiscated his passport, which popped up in the news some time ago, has meandered it’s way onto BAILII. The case is extremely interesting for its treatment of mental capacity and cultural differences, but I’m not going to talk about that today (for me, it did bring to mind the play Blue/Orange, by Joe Penhall, where the audience is left wondering in places how implausible the ‘delusions’ of a psychiatric patient that he is the son of Idi Amin actually are). What I want to talk about is the discovery of... (drum roll please) a new Bournewood Gap

Those of you not obsessed with the twists and turns of ‘eligibility’ for the deprivation of liberty safeguards, which is a particular issue arising from the interaction of the Mental Health Act 1983 (MHA) and the Mental Capacity Act 2005 (MCA), I suggest you tune out now. Those of you hoping this will have some fascinating CRPD-related insights, apologies, this discussion will remain within the parallel universe of trying to make sense of conflicting obligations in domestic legislation, neither of which are likely to be CRPD compliant (or even ECHR compliant, given the way this case turned out).  But eligibility geeks - let’s get stuck in. I’m sort of assuming readers are familiar with the case GJ v The Foundation Trust (2009) which concerns when a person who is not detained under the MHA but who is in hospital is ‘eligible’ for detention under the DoLS. Here’s my recent effort to schematise the judgment:

When I am stuck on questions of eligibility, I turn to Richard Jones's guides to the MHA and MCA, and since I can't improve upon perfection I suggest you do the same!  But in fact, this case was slightly different to the GJ situation, and perhaps even more complicated...  The unfortunate judge having to deal with the mess left by Parliament on this occasion was Mr Justice Baker.

The advocacy providers: 5th Evidence Session of the Select Committee on the Mental Capacity Act 2005

It’s hard to keep up in legal capacity land these days, what with the Irish Bill being published, this rather marvellous report on legal capacity from the European Union Agency for Fundamental Rights and Munby’s transparency drive. But, still, better late than never. Last week the Select Committee on the Mental Capacity Act 2005 (MCA) heard evidence from advocacy providers, including Steve Gray (from Asist), Elyzabeth Hawkes (from PohWER) and Jonathan Senker (from VoiceAbility). The session primarily focussed on a form of statutory advocacy created by the MCA – Independent Mental Capacity Advocates (IMCAs). The Chairperson was Lord Hardie.

This evidence session did prompt a little twitter rant on my part in relation to the role of IMCAs in accessing the Court of Protection under the deprivation of liberty safeguards (DoLS). The gist of it – as I’ve written about before – is that I am concerned that not all IMCA providers appreciate that it is their job to help people exercise their rights of appeal against detention.  Nothing under the MCA or Article 5(4) ECHR says that people only have appeal rights where it’s in their best interests – and there are a welter of cases about legal capacity which point to the contrary (Shtukaturov, Stanev, DD, Kedzior, Sykora, Lashin and more...). Moreover, there are also ECHR authorities which say that a person’s rights of appeal against detention don’t rest on their case having merits, and there are cases which say that a person’s access to effective remedies in matters like appeals against detention and declarations of incapacity absolutely should not be resting on the individual judgment and discretion of public officials…  In the context of detention under s2 Mental Health Act 1983 - which has no automatic referral mechanism to the Tribunal - Lady Hale noted that the right to bring an appeal against detention under Article 5(4) must be 'practical and effective', meaning that 'every sensible effort should be made to enable the patient to exercise that right if there is reason to think that she would wish to do so'.  I can think of no sensible reason to distinguish the DoLS from this general proclamation, especially since the case was about a person who 'lacked capacity'.  If IMCAs aren't the ones who are supposed to make every sensible effort to help a person exercise their appeal rights, then who on Earth is?  The detaining authorities?  Should it just be left up to families to rock the boat?

Perhaps I’m being unfair, but comments to the effect that it’s a shame the DoLS don’t have an independent element like the Tribunal under the Mental Health Act 1983 had me holding my head in my hands and shouting ‘There IS an independent element. It is called the Court of Protection. And YOU are meant to help people to get there!! Read s39D(8) MCA!!’ Part of the difficulty, I suspect, is the the language of the statute under s39D around when an IMCA must help a person to challenge their detention is somewhat diluted in the DoLS Code of Practice, which merely comments that they may.  Meanwhile the duty to refer to an IMCA under s39D has been interpreted by the code in terms of when a person requests one - not when it appears to a supervisory body that without the help of an IMCA that person would be unable to exercise their rights of appeal and review.  Which - given the difficulty most people would have in understanding their rights under the DOLS and navigating the appeal appeal mechanism - must be most people.  That, I suspect, is why we still see local authorities with many DOLS authorisations (sometimes over 100) and yet not a single referral under s39D MCA.

4th Evidence Session of the Committee on the Mental Capacity Act

Somewhat belatedly, here is a digest of the fourth evidence session of the House of Lords Select Committee on the Mental Capacity Act.  I have put all my posts about the background to the Committee, and the previous evidence sessions, under this label if you want to read more.  On Tuesday 16th July the Committee heard evidence from disability charities (transcript here), including:

• Vanda Ridley, Communications Manager at the Down’s Syndrome Association;
• Beverley Dawkins OBE, National Officer for Profound and Multiple Learning Disabilities at Mencap;
• Hannah Barnett, Head of Operations at the National Autistic Society;
• George McNamara, Head of Policy and Public Affairs at the Alzheimer’s Society;
• Peter McCabe, Chief Executive of Headway;
• Paul Farmer, Chief Executive Officer of Mind.

This session was chaired by Baroness Browning as Lord Hardie was unable to attend.  As usual, here are some comments from the session organised by topic...

The Assisted Decision-Making (Capacity) Bill in Ireland - a bit of a mixed bag

Readers from the Republic of Ireland will almost certainly know that the Oireachtas has now published the long-awaited (and newly titled) Assisted Decision-Making and Capacity Bill. This is a very exciting development, not just for Ireland but for states around the world who are grappling with the implications of the UN Convention on the Rights of Persons with Disabilities (CRPD) for legal capacity matters. Ireland has been operating with a 19th century ward of court system in relation to legal capacity (amongst other statutory and common law provisions), and had committed itself to reforming this system before it ratified the UN CRPD. Onlookers (like myself) watched with interest as constructing legal capacity legislation which complies with the CRPD is no mean feat - it is doubtful that any state has managed it and many states (such as the UK and Australia) are actively contemplating its implications.

Under the CRPD, legal capacity is primarily governed by Article 12 on equal recognition before the law. The drafting of this article was very controversial, and it retained a degree of ambiguity as to whether or not it permitted what are called, in the parlance of the CRPD, ‘substituted decisions’. Substituted decisions are decisions made by a third party on behalf of another on the grounds that they ‘lack capacity’. Although the text of the Article is ambiguous, however, its interpretation by the UN Committee for the Rights of Persons with Disabilities has not been – they have repeatedly stated that regimes of substituted decision making must be replaced by regimes of ‘supported decision making’. I have gathered together the various comments of the CRPD Committee relating to legal capacity in this document if you would like to see for yourself what they are saying. There are also implications for this Bill from Article 13 (access to justice), Article 14 (liberty), Article 15 (on torture, but especially in relation to non-consensual medical experimentation), Article 17 (bodily integrity) and Article 19 (independent living – specifically the right to choose one’s living arrangements). Article 16 CRPD is also relevant as it relates to protection, and historically deprivation of legal capacity and guardianship regimes have been thought of as protective regimes (see, e.g. the Hague Convention on the International Protection of Adults).  The CRPD challenges us to think about protection in a very different way, although (frustratingly) I can find very little (published) work being done on this at present.

What constitutes news?

I am completely befuddled by what constitutes news.  John Hemming MP drafts an Early Day Motion calling for some random inquiry for Parliament to review urgent applications in the Court of Protection.  That's news, according to the Daily Mail and the Independent.  Parliament actually sets up a dedicated Committee to examine the functioning of the Mental Capacity Act - covering various issues around human rights, the Court of Protection and even hears evidence on urgent applications.  That is not news (or at least, it is not news that I have been able to locate anywhere except the ever-trustworthy Community Care).

Not a month passes, it seems, without a newspaper headline proclaiming 'secrecy' in the Court of Protection or the Family Courts.  Sir James Munby - the new President of the Family Division and the Court of Protection - announces the first in what looks set to be a whole series of major transparency reforms.  Is that news? Apparently not.

One step closer to Open Justice

It's a while since we've had an Open Justice post...  but we knew it couldn't be long with Munby LJ being appointed the new President of the Family Division and the Court of Protection.  As readers will know, there are various issues around transparency in the Court of Protection as a result of s12 Administration of Justice Act 1960, which renders is a contempt of court to publish information about proceedings held in private.  Under the Court of Protection Rules 2007, the judge can choose to hear a case in public, or authorise publication of information about proceedings held in private, which they have done on various occasions.  However, this is contingent upon somebody (typically the media) making an application for them to do so, or a judge exercising his or her discretion to authorise publication of the judgment on BAILII or MHLO (or Family Law Week - who knows where they'll pop up next! I wonder whether there is any rhyme or reason for where these judgments end up?).  So, the judgments that end up in the public domain are not necessarily representative of the typical work of the Court of Protection, and (as I've written about before) you can even end up with the indefensible situation of lawyers being able to cite cases in court which aren't even in the public domain...

Anyway, readers who've read Munby LJ's own' commentaries on transparency (like this one) in the Family Division and the Court of Protection were probably anticipating changes.  Upon appointment he stated:

LB

When I first read about the death of Sara’s son, LB (‘Laughing Boy’), last Thursday, I was lost for words.  I had been following Sara’s blog for over a year now, enjoying her delightful anecdotes about LB - his humour, his achievements, his uniqueness and also her clear love and pride in her son. Part of the reason the blog was so readable was because they are a family you wanted to know, to hang out with, to hear LB’s jokes and about their projects. Sara wrote about LB as an unlikely ethnographer, LB defying the expectations of the ‘deficit focused’ medical profession, his love of buses and lorries.  She wrote:

‘Some people suggest that LB (17) has various labels like autism, learning disabilities and Klinefelter syndrome. I just think he is one crazy dude who loves Eddie Stobart, drum and base and going to London.’

This blog – like Mark Neary’s – was the antithesis of the kinds of ‘autism as tragedy’ narratives the activist Jim Sinclair was targeting in his famous address to an Autism Conference in 1993 (‘Don’t Mourn for Us’).  It was a celebration.

Winterbourne View, scrutiny and recommendations for reform: Third evidence session of the Committee on the Mental Capacity Act

The House of Lords Select Committee on the Mental Capacity Act 2005 (MCA) has posted a transcript of its third evidence session.  The Committee hear evidence from Toby Williamson, of the Mental Health Foundation, who was chair of the Making Decisions Alliance from 2004, an alliance of national and regional charities ‘that worked with different groups of people with disabilities’ and campaigned for the MCA to be passed in parliament.  Williamson also spoke from the perspective as a co-author on a major study of best interests decisions (the ‘BIDS’ study), conducted by the Mental Health Foundation, the Norah Fry Research Centre at Bristol University and the University of Bradford.  They also hear evidence from Sue Brown, who is head of public policy for the charity Sense, which works with deaf-blind people, and who was a former member of the Making Decisions Alliance.  After hearing evidence about the passage of the bill, and the satisfaction (or otherwise) of those who were involved in campaigning for it with its implementation, the Committee heard evidence from the authors of two major reports on serious welfare and abuse issues.  Margaret Flynn gave evidence on the MCA from her perspective as author of the Serious Case Review into the abuse of adults with learning disabilities at Winterbourne View hospital, and Pauline Heslop from the Norah Fry Research Centre at the University of Bristol spoke from her perspective as an author of the Confidential Inquiry into premature deaths of people with learning disabilities (CIPOLD) report.

Parliamentary privilege and the Mental Capacity Act Committee

Just a quick update to say that I heard back from the House of Lords Committee on the Mental Capacity Act 2005, who confirmed what others had said to me - that it is not a contempt of court to submit evidence to the Committee about proceedings in the Court of Protection.  I contacted the Committee to ask about this because ordinarily disclosing information about proceedings in the Court of Protection which are held in private is a contempt of court (see s12 Administration of Justice Act 1960), and this prohibition has been very broadly interpreted (In the Matter of B (A Child) [2004] EWHC 411 (Fam)).  As Wanda Maddocks could tell you, it is also enforced.

Happily, evidence submitted to the House of Lords Select Committee is protected by an old constitutional guarantee of Parliamentary Privilege, which the clerk of the Committee kindly explained in her email and said I could reproduce here for you to read:

Witnesses’ remarks made in solicited written or oral evidence to select committees are protected by parliamentary privilege. This means that witnesses cannot be prosecuted for what they say in written or oral evidence to a committee; and evidence to a committee could not be used in court to support a prosecution or civil suit. However, it is worth noting that it is only in the context of parliamentary proceedings that the evidence is protected. Parliamentary privilege does not protect a witness if they repeat their evidence outside Parliament.

Given the sensitivities of the circumstances, the Committee will wish to consider how, if at all, to publish the evidence received. That will depend in part on the nature of what is submitted.
In addition, if the Committee decided on the basis of a written submission to call an individual for oral evidence, we would expect that session to take place in private. The Committee would need to consider what record, if any, would be taken of the session.

So, if you have stories about experiences of proceedings in the Court of Protection that you would like to share with the Committee, you can submit written evidence to them.  Don't forget though, this protection doesn't apply if you publish or disclose this information to anybody else.  Even once you've written to the Committee, it could still be a contempt to tell other people or the media about the proceedings, or stick your evidence on your blog or whatever.  Just to repeat that: just because you are protected when telling the Committee, doesn't mean you are protected telling anybody else.  Furthermore, the Committee may choose to redact your evidence, or not to publish it at all, as Parliamentary Privilege must be exercised responsibly.  Please remember (if you are reading this in the future)*, when the Equality and Human Rights Commission open their inquiry into the deprivation of liberty safeguards, this privilege will not apply.

Just a reminder - here is the call for evidence.

*I mean, obviously you are, but the distant future when the EHRC inquiry opens...

Motherhood, apple pie and scandal: Second evidence session of the Mental Capacity Act Committee

The House of Lords Committee on the Mental Capacity Act  (CMCA) published its second evidence session today, and the witnesses were Nicola Mackintosh from the Law Society and Mackintosh Law,  Katie Johnston from Liberty, Kirsty Keywood from the University of Manchester Law School and Richard Jones, who needs no introduction.  

The Committee has also published its call for evidence, and submissions are requested on a range of topics concerning the Mental Capacity Act (MCA), the deprivation of liberty safeguards (DOLS), deputyships, Lasting Powers of Attorney (LPAs), advance decisions and - of course - the Court of Protection.  The deadline for evidence is September 2nd this year.  I really hope that lots of people will respond to the call for evidence with their personal experiences, and it won't just be dominated by lawyers and academics and the other usual suspects.  Although there is a list of questions (27!) the call does say the Committee welcomes views on any or all of them, and in no particular order.  So please spread the word, it would be great to get some stories from the front line into the public domain, especially if they came from families and people said to 'lack capacity' rather than just professionals.  I am hoping that organisations like the British Institute for Human Rights, and perhaps advocacy and disabled people's organisations will help people to get the word out about the call for evidence and share their stories.  If you want to find statistics to put in your evidence, I've gathered together quite a few on the MCA, IMCAs, DOLS in this guide.

MCA Committee - first evidence session

The House of Lords Select Committee on the Mental Capacity Act has published the transcript of its first evidence session, heard last Tuesday 18th June.  This opening session heard from government officials, including John Hall (Deputy Director of Family Justice), Nick Goodwin (Deputy Director of Court Tribunal Fees), Anne-Marie Hamilton (Director of the Social Care Quality and Safety Branch, Department of Health) and Claire Crawley (Senior Policy Manager, Adult Safeguarding, DoH).   The evidence is pretty long (43 pages) and full of interesting discussions - ranging from the Mental Capacity Act (MCA) and the deprivation of liberty safeguards (DOLS) to much broader issues like the conditions care staff work in, the support available to family carers, the role of the Care Quality Commission (CQC) and more.  There were a few bits of the evidence session that were of particular interest to me, but it is well worth reading the entire thing if you're an MCA or obsessive.  Overall, I think the Committee asked some pretty good questions, and there was some pretty persistant probing of officials by some members - it will be interesting to see how these issues get taken up in later evidence sessions.

[Edit 27/06/2013: The second evidence session has just been published, with evidence from Richard Jones, Kirsty Keywood, Nicola Mackintosh and Katie Johnston. It's fiery stuff - well worth a read.  I don't have time to write about it today... maybe on my flight home tomorrow!]

Putting the cart before the horse: Resource Allocation Systems and community care

The Journal of Social Welfare and Family Law has published a paper on Resource Allocation Systems (RASs) by Luke Clements and myself.  A pre-publication version can be downloaded from here (doc).  The paper is based on a series of requests made under the Freedom of Information Act about how local authorities developed their RASs, and how they worked.  We consider issues of transparency, which I have discussed before on this blog, but also look at issues like how RASs were developed, how they take into account informal support, whether RAS questionnaires might miss some eligible needs, whether RASs will lead to a more equitable distribution of resources for different groups, and the accuracy of RASs.  Here are the seven conclusions we drew from this research:

ANOTHER inquiry into legal capacity legislation (this time from Oz...)

Another week, another inquiry into legal capacity legislation...  This month, the UK House of Lords and the Equality and Human Rights Commission have both announced forthcoming inquiries or post-legislative scrutiny into the Mental Capacity Act 2005 and the deprivation of liberty safeguards.  Now the Australian government's Attorney-General Mark Dreyfus QC has announced a 'Consultation on draft terms of reference for ALRC inquiry into equal recognition before the law and legal capacity for people with disability'.    Hat tip to Piers Gooding for flagging this up.  The Australian inquiry will consider:

• Commonwealth laws and legal frameworks that deny or diminish the rights of people with disability to make their own decisions and act on their own behalf, and
• what, if any, changes could be made.

Equality and Human Rights Commission announce inquiry into the deprivation of liberty safeguards

The Equality and Human Rights Commission have announced that they will be opening an inquiry into the deprivation of liberty safeguards. The announcement is contained within their Corporate Plan for 2013-14 (hat tip to Local Government Lawyer for spotting this), and states:

The Commission is developing proposals for a formal Section 16 Inquiry to examine policy and practice in care homes and hospitals on the deprivation of liberty of people who lack mental capacity, and the effectiveness of the safeguards currently in use. This issue has been explored with various organisations and individuals, including the Care Quality Commission, Court of Protection Users Groups, Mind, Liberty, barristers and leading academics. Stakeholders have identified some significant problems and flaws in the application of the current safeguard provisions. All have stressed the need for systemic change to ensure that the human rights of people in extremely vulnerable situations are effectively protected.

I haven’t seen any further detail on the specifics of this inquiry, but I will keep an eagle eye on their website.

So, now we have a House of Lords ad hoc committee conducting post-legislative scrutiny of the Mental Capacity Act 2005 because of human rights concerns, and the EHRC conducting an inquiry into the deprivation of liberty safeguards. Interesting times.

Your statistical guide to the Mental Capacity Act 2005

My lovely statistical data from my PhD thesis, which I lovingly gathered and harvested from reports and under the Freedom of Information Act 2000, will not see the light of day in any formal publication any time soon.  Yet, I am contacted very frequently by lawyers, researchers and campaigners asking where they can find data on this, that or the other.  So I decided to turn these data into a statistical guide for your use.  Enjoy.

About the Statistical Guide to the Mental Capacity Act 2005

The Mental Capacity Act 2005 (MCA) affects the personal and workings lives of millions of people in England and Wales. The deprivation of liberty safeguards and the Court of Protection, both established by the MCA, are frequently in the news. There are many interesting developments afoot regarding the Act – not least the forthcoming hearing of two key deprivation of liberty safeguards cases by the Supreme Court (Cheshire and P & Q) and the newly announced House of Lords ad hoc committee on the MCA. The MCA is also of growing interest at an international level as Article 12 of the UN Convention on the Rights of Persons with Disabilities (CRPD) – the right to equal recognition before the law – refocuses critical attention on mechanisms which allow a person’s own decisions to be displaced by another’s on grounds of ‘incapacity’.

My doctoral research focused on the MCA in relation to adult social care, and I amassed a large amount of statistical data on the Act, on the deprivation of liberty safeguards and on the Court of protection – from official sources, by using the Freedom of Information Act 2000 (FOIA) or through the generosity of those working in the court service. In this document I have tried to bring together all the data I have, so that others can use it to inform any teaching, research, campaigning, litigation, journalism or policy work in this area. Please feel free to use the data, tables and figures contained here for these purposes, although please be careful to appropriately attribute them (both to myself, and the original source of the data). I would like to take this opportunity to acknowledge and thank the FOIA officers and their colleagues in the Ministry of Justice, the Department of Health, the Office of the Public Guardian, the Crown Prosecution Service, the Court of Protection and the local authorities I contacted, for all their help and hard work.

The overall picture painted by these data is of an Act whose primary mechanisms are informal – the vast majority of decisions are made under the general defence, and so are not picked up by data on the deprivation of liberty safeguards or the Court of Protection. The statistics show that referrals to Independent Mental Capacity Advocates (IMCA) have been lower than expected, and the number of complaints and litigation resulting from IMCA referrals is concerningly low, suggesting they are only infrequently challenging decision makers or assisting P to do so. Use of the deprivation of liberty safeguards has been underwhelming and extremely variable – it appears there is a postcode lottery in the Article 5 protections offered by the safeguards, both in terms of when they are applied, and how effectively people’s rights to advocacy and challenge are upheld. Despite fairly limited, but growing, use of the Court of Protection under the MCA for welfare decisions and the deprivation of liberty safeguards, it is clear from the comments of the judiciary and the Official Solicitor that these cases are causing a significant strain on resources.

The document is divided into three sections: data on the Mental Capacity Act, the deprivation of liberty safeguards and the Court of Protection. Very limited data is available on the use of the ‘general defence’ under the MCA. I have collated some data on the use of welfare benefit appointeeships, Lasting Powers of Attorney, deputyships, Independent Mental Capacity Advocates and prosecutions under s44 MCA. Using the official data on the deprivation of liberty safeguards and data gathered under the FOIA, I have produced tables and figures showing – for the period 2009-2012 –  the number of applications over time, variation in application rates across local authorities (including an appendix showing each local authority’s per capita application rate using population data), some data on third party referrals, Part 8 reviews and applications to the Court of Protection under s21A MCA and s16 MCA. An additional appendix shows the startling variation between local authorities’ use of s39D IMCAs under the deprivation of liberty safeguards. I have also drawn from data published in the two Court of Protection annual reports, the Official Solicitor’s annual reports and a small amount gathered under the FOIA to produce tables and figures on welfare proceedings in the Court. I reproduce some data on applications for permission, which paint a picture of who is using the welfare jurisdiction of the Court of Protection, a figure shows the growing workload of the Official Solicitor and I present some data on Court of Protection visitors.

I am afraid these data have not been peer reviewed, but if you spot any errors I would be grateful if you could bring them to my attention. If there are any data not contained here that you would find useful, please do let me know – it may be that I already hold it. I am afraid that these data focus more on the welfare side of the Mental Capacity Act, as that is what my doctoral research has focused on.

MIND call for evidence on DOLS

If you have experience of Deprivation of Liberty Safeguards, MIND would like to hear from you.

In the autumn, the Supreme Court of England and Wales will be hearing two cases about the Deprivation of Liberty Safeguards (DoLS) under the Mental Capacity Act 2005. The Court will consider what ‘deprivation of liberty’ means in the social care context.

Mind is going to provide independent evidence to the Court on how the DoLS system is working in practice and how it could be made clearer and safer for service users, their families and carers.

Mind are keen to hear from people who have experienced the DoLS system, whether as someone who is or has been under a DoLS, a family member of someone under a DoLS, an advocate working with people who lack capacity, a carer or a health and social care professional.

All the responses that we receive will feed into the evidence that Mind provides to the Supreme Court and will therefore assist the judges in making a decision that respects service users’ needs.

If you’d like to tell us about your experience with DoLS, please complete the short survey.

The survey closes on 6 June 2013.

Membership of House of Lords Ad Hoc Committee on the Mental Capacity Act published

A motion for the members of the House of Lords Ad Hoc Committee on the Mental Capacity Act 2005 has been published today.  The proposed members are:

• Lord Hardie (Chairman)
• Lord Alderdice
• Baroness Andrews
• Baroness Barker
• Baroness Browning
• Lord Faulks
• Baroness Hollins
• Baroness McIntosh of Hudnall
• Lord Patel of Bradford
• Baroness Shephard of Northwold
• Lord Swinfen
• Lord Turnberg

Some of those names will be familiar to those in the mental health world.  Lord Hardie - the Chairperson - is a very senior lawyer.  There are quite a few medical professionals and lawyers. Lord Patel, of course, was until recently the chair of the Mental Health Act Commission.  Baroness Browning was involved with the original Bournewood Case and made several interventions in parliament during the drafting of the DOLS (including asking sensible questions like 'what does deprivation of liberty mean?' and 'do you think we've allocated enough resources to this?').  She was one of the people who called for post-legislative scrutiny of the Mental Capacity Act.  It is a shame that there are no peers with a disability rights background on this Committee, such as Baroness Campbell or Baroness Grey-Thompson, but hopefully the Committee will take an interest in the disability rights debates surrounding the Mental Capacity Act.

The beauty of BAILII and RSS feeds

If you would like to set up an RSS feed for new cases mentioning particular key terms from BAILII, then check out what BAILII have been developing with this handy guide from iLegal (and ignore what I wrote below).  Using BAILII's own new RSS system, I have set up feeds for all cases from the European Court of Human Rights mentioning legal capacity and guardianship, feeds for all cases from the UK (and other jurisdictions, in case it's mentioned in passing) mentioning the Mental Capacity Act 2005 and all cases from the UK, Ireland, the ECtHR and the EU mentioning the UN Convention on the Rights of Persons with Disabilities.

Ever wished you could have all the published cases about a particular topic or mentioning a particular key term piped directly to you?  Well, wish no longer, because the answer is here!

I am, as many bloggers are, a feed-monkey.  I love RSS feeds, the way they pipe blogs I follow and other feeds directly to my RSS reader, so I don't have to visit each site in turn (I am currently mourning the impending doom of Google Reader, but having a play with Feedly as a replacement).  For some time now I've been thinking, 'wouldn't it be cool if there was a way to set up an alert on BAILII for a particular keyword.  It's really tricky to do though - you can't use Google alerts as BAILII blocks search engines (here's why), and I found having to manually re-check BAILII'S search engine every week or so for new cases rather tiresome.  I dreamed of an RSS feed for ECtHR cases on legal capacity and guardianship, or one for UK cases on the Mental Capacity Act, but the consensus on twitter was that it couldn't be done... Until today, when clever old Judith Townend (of Meeja Law) worked out that you can set up a BAILII search using BAILII's own internal search engine (sorting by date), and then turn that into an RSS feed using Feedity.  It's so easy, you could easily set one up for your key-term tipple of choice.  You could play with setting up alerts for particular citations, judges, statutes... the possibilities are endless.

So without further ado, I present to you (drum roll please) an RSS feed on legal capacity and guardianship cases from the European Court of Human Rights and an RSS feed on all UK court cases mentioning the Mental Capacity Act 2005.  Enjoy. 

Advance Decisions: Documenting End-of-Life Wishes - the Legal and Ethical Framework.

Cardiff University are currently hosting the 'Before I Die Festival', a whole series of events about dying, for the living. Events range from music, art, poetry, theatre and film to expert panels and public debate.  On Monday 20th May, from 6-8pm, there is a seminar on advance decisions and documenting end of life wishes.  Talks include:

• Professor Luke Clements, Law School, Cardiff University on The Mental Capacity Act and Advance Decisions
• Philip Satherley from the charity Compassion in Dying about the template forms and information line they offer
• Professor Sue Wilkinson, Social Sciences Dept, Loughborough University on what people say about why they want to write Advance Decisions 
• Professors Jenny Kitzinger and Celia Kitzinger, Directors of the Cardiff-York Chronic Disorders of Consciousness Research Groups about how people who have family members in comas, vegetative states and minimally conscious states write ADs. 
• Dr Anne-Marie Slowther , Chair of the UK Clinical Ethics Network and Associate Professor of Clinical Ethics at Warwick Medical School on "What if I change my mind?" 
• Professor Penney Lewis, Law School, Kings College London on ADs and the Courts (including XB [2012] EWHC 1390 and D [2012] EWHC 885)
• Nancy Berlinger, The Hastings Institute, on the experience of advance directives and other advance planning arrangements in the USA 

This particular seminar is part of an ESRC funded series of seminars on the topic.  The last one I went to was brilliant - really interesting and informative, with a range of views and perspectives.  The flyer is here:

What if...

It's been a really exciting week for me at the Centre.  On Monday we had the conference on supported decision-making (which I tweeted about) and today we were really spoiled as one of the delegates, Cher Nicholson, came to give a workshop on a project she ran in South Australia on supported decision making.  If you ever get the chance to go and see Cher speak about the project, I really really recommend that you do - it is relevant to everybody who comes into contact with issues around 'mental capacity' - from people said to 'lack capacity', to their friends and family, to social services, care providers, lawyers and disability NGOs.  It's one of the most inspirational things I've seen in a long time.

Anyway, enough adulation and down to brass tacks.  What was this project and why is it exciting and why should everyone in the UK (and my new home, Ireland) be thinking about it?  The project was set up by the Office of the Public Advocate (OPA) in South Australia.  Now, despite the name, the role is closer to the Office of the Public Guardian in the UK, only they actually provide the guardians - they don't just register and monitor them (apparently in South Australia they don't use social workers or solicitors as guardians - if family can't be the guardian, then OPA provide one).  Apparently (I'm being too lazy and not looking this up) South Australia has very high rates of entry into guardianship, and they were looking for a project to explore alternatives to guardianship.  So the project was initially conceived by OPA to look for ways to support people to make decisions for themselves, to avoid entry into guardianship, and they employed Cher Nicholson to coordinate it.

Today's legal capacity conference... in 100 (or so) tweets

If you couldn't make it to today's conference on Supported Decision-Making, organised by the Centre for Disability Law and Policy and Amnesty Ireland, then fear not!  For I live-tweeted the whole event in a twitter marathon and have 'storified' it so you can read it here without even needing to venture onto Twitter.  So, if you want to know what Gabor Gombos, Gerard Quinn, Cher Nicholson, Maths Jesperson, Rory Doody, Ignacio Campoy Cervera, Aiofe Day and Colm O'Gorman had to say about supported decision making, legal capacity and the Irish Law Reform process, then read on!  Amnesty will also be posting videos of the event on their website, here.

It was a brilliant day, really thought provoking.  I think the best thing about today was moving away from talking about problems towards discussing solutions.* I'm busy wondering how we can persuade some enterprising UK and/or Irish NGOs to set up a supported decision making pilot modelled on the South Australian project, or getting mental health teams to look into commissioning projects modelled on the hugely successful (and money saving...) Personal Ombudsman scheme...  Any thoughts?  If you want to read more about the amazing Personal Ombudsman scheme, I've just found a link to another presentation (doc) by Maths Jesperson which covers a lot of the same ground as today's talk.

*I don't mean the problems should be ignored, it's just that sometimes it feels as if this is the only conversation we are having, and we lose sight of the exciting work that is being done on supporting decision making.

Donate to Action Aid for the Bangladesh factory collapse victims

This isn't about capacity or care, but it is about human rights.  I'm sure you've all heard about the collapse of the garment factory in Bangladesh this week, killing at least 300 people and injuring over 2000.  Inspectors had warned that the factory was unsafe only the day before and requested evacuation and closure.  The factory supervisors refused, the workers continued to produce clothes by Primark, Bennetton, Monsoon and other high street brands in the West, and the factory collapsed the next day.

In the short term, the priority is clearly to get aid to the trapped and injured workers, and their families.  Victoria Butler-Cole (of 39 Essex Street fame) has set up this great 'Tax your T-Shirt' site where you can donate to Action Aid to support victims of the disaster.  There are, however, much more fundamental questions about the rights of workers who make the clothes we wear.  If you are interested in finding out more about who is making your clothes, their rights and how you can help to improve conditions in the global garment industry, you could check out the work of Labour Behind the Label (you might want to see what the brands you buy are doing to improve working conditions).

When is a Direct Payment, not a Direct Payment?

Direct Payments were introduced in the 1990's, after much lobbying by disability campaigners, to allow users of local authority care services to receive cash in lieu of state-arranged services to meet eligible needs under the many and various community care laws.  The idea was to give people greater choice and control over the way their support needs were met - so, for example, instead of relying block-contracted or local authority providers of domiciliary care, a person could use the cash to employ a personal assistant (PA) - giving them control over important things like who supported them, when, and on what terms. (If you've never dealt with a domicilliary care provider, you might not appreciate what a struggle it can be just to get them to send you somebody you like, or at least don't mind, and at a time that is convenient to you.  You might get a multitude of workers turning up at all hours of the day except the ones you want, staying for 15 minutes while you explain your particular care needs, then having to bugger off again to travel halfway across town (worker unpaid for that time, more likely than not) to offer somebody else a choice between having a wash or having breakfast as they're running late.  Did working in domicilliary care leave me cynical?  Well, it's not just me, see the EHRC report on home care services).

To return to the topic, direct payments are bloody brilliant for some people, but they don't work for everyone.  In particular, they're not brilliant for people who aren't able to manage the complex accounting, commissioning and employment (if they use a PA) side of things, or haven't got anyone else willing to do so on their behalf.  Various people have raised 'safeguarding' concerns about privately arranged care, but they're too complicated to discuss here.  Also, even though Direct Payments were about giving people more choice and control, you might find that the level they're set at is so low the only 'choice' you have is the cheapest service on the market.  And, increasingly it seems, local authorities are finding ways to continue to exercise a degree of control over how you spend the money...