54. The Government's post-legislative memorandum suggested that the legislation was working well other than in a few "small and technical" areas. This view was broadly upheld in 2010 by the Public Guardian's evidence to the Justice Committee. Since that date concerns have been expressed that the procedural safeguards in the Act may be inadequate to satisfy the requirements of the Human Rights Act 1998. The Mental Capacity Act was amended in the light of the Bournewood judgment which found the UK in breach of Article 5 of the ECHR. The recent findings about the treatment of residents at the Winterbourne View care home, together with a recent Mencap report highlighting deficiencies in the care of mentally disordered patients, suggest that the legislative regime for mentally incapacitated adults would merit scrutiny by a House of Lords post-legislative scrutiny committee. Such scrutiny could include consideration of external oversight of the decisions made on behalf of incapacitated individuals by medical professionals and guidelines on "best interests" decisions, where social workers and others have taken over decision-making in areas such as personal welfare, type of care or financial affairs on someone else's behalf.You might also be interested to read this recent exchange about the DOLS before the House of Commons Health Committee. I think Rosie Cooper asks a very good question about why we are so tolerant of de facto detention by the medical and social care professions, so long as there is no malicious intention, when we would not be so tolerant of well intentioned de facto detention by, say, the police. There was also discussion of the vagaries of the meaning of deprivation of liberty (what does 'deprivation of liberty' mean, asks an MP - 'what an interesting question', responds the representative of the Royal College of Psychiatrists), the forthcoming Cheshire case, reminiscences for the good work by the disbanded DOLS team at the Department of Health, expressed concern about the lack of safeguards in supported living (including a rather out of touch suggestion that everybody in supported living will have had capacity to make a tenancy...). In my view the problems with the appeal mechanism and variability in application of the DOLS weren't really drummed home enough, but it's a start - and hopefully this House of Lords scrutiny will be an opportunity to air such concerns.
Thanks very much to Roger H for bringing the House of Lords and Health Committee news to my attention.
From my experience private care homes use the DOLS not to Safeguard the person that they are looking after but to stop family members taking them away in order to establish abuse. To cover up the neglect.
ReplyDeletePrivate Care Providers/Owners use the DOLS to their advantage...
I saw with my own eyes the abuse that my son was experiencing.
I tried to take him to a hospital he agreed to come with me. This was denied as the manager started the Deprivation of Liberty and Safeguarding. He was taken to the local hospital and then back to his perpetrators.
This same private care home unbeknown to me which I later found out already had a history of death of a patient whilst under its care...Was my local authority aware of this? It was published in the media.
Also why would you offer someone into supported living saying they will have their own front door? when they already have a home with their own front door.
To say one lacks capacity to go home with one hand, yet on the other hand, offer supported living against one's wishes beggars belief..
Some light needs to come through all this, lets start with listening and working with families. And stop pushing us away...
Who does the Deprivation of Liberty and Safeguarding really honestly benefit?
There are public/private partnerships going on here which are sinister. Private care homes are springing up all over the place, and the legislation is there through the Mental Capacity Act, to enable the local authority to take folk from their homes and keep them against their will in these same care homes, all in the name of `best interests`. Meanwhile the person is asset-stripped to help pay for the extortionate costs of the care home. Whoever set up the law knew what they were doing. Meanwhile everybody who opposes the law is tied up in legal knots having to use the same meaningless stock phrases.
ReplyDelete20 March 2013
ReplyDeleteDear Ms Series,
Thank you so much for your excellent blogs and detailed research and information. I believe that the Mental Capacity Act 2005 along with the Mental Health Act 2007 do not stand the test.
It is my belief that we have far too many laws in England which are obfuscatory and dense, and that judges and juries end up interpreting legislation in ways that are not as originally intended by the lawmakers.
Maybe we should return to Prime Minister Robert Peel, the Great Law Reformer of the 19th Century, and see if we can establish an English Code of Law like that of the Code Napoleon for example.
People believe that they are innocent until proven guilty but now with social workers and police and safeguarding, the assumption is guilt first and then prove yourself innocent, because the word "victim of crime" and "perpetrator" and "suspect" are used interchangeably and until such time as a person has been proved to be guilty, in English law, at least, a person is innocent.
But in the last few years there has been a sea change in the laws of England, and it is extremely worrying to me that we are not made aware of the potential traps that anyone who might live with anyone else who might have the slightest vulnerability be it emotional, physical or mental or a combination, then someone else can be made a scapegoat for another person's CHOSEN WAY OF LIVING.
This of course comes back to the Mental Capacity Act 2005 and safeguarding measures, many of which are misplaced such as the child abuse cases which turn out NOT to be abuse at all, but Christopher Booker of the Sunday Telegraph has had a major victory in being able to report on a case which otherwise would not have been known.
We are entering into an age of great civil uncertainty.
I sincerely hope that the Law Commission and House of Lords and House of Commons will re-evaluate all mental health legislation forthwith.
Thank you again for your inspirational work.
With best wishes,
Rosemary Cantwell
Campaigner for Truth, Liberty and Freewill
Spot on
Deletethe advent of untested and publicly unaccountable safeguarding work together with oppressive use of the MCA has allowed the 'safeguarding wallahs' to act in their own best interests; keeping their roles and employment / businesses viable. The sheer pretence that they are keeping the vulnerable safe in any meaningful way is the lie sold to ministers and the public- just look at the daily press for how well the public/ state and private institutions look after the vulnerable in our society.
Even the large numbers of families subject to the severe stresses of 24/7 caring do not undertake such seriously harmful and degrading activity - yet many of these families are picked upon by social workers as 'soft targets',for things that were not intentional / meant to cause harm to those they care for, to justify their work to gain departmental 'safeguarding work experience'.
There will be a fall out from this - the derision / distrust with which social services / workers are held is increasing amongst different groups who might have used social services. I hear of more trying to do without contacting them as the word of the dangers starts seeping through the public psyche. Soon it will be the pseudo professionals bullying the rest of society with their coerce and control powers. But this pitching/ positioning will have consequences- mark my word- the whole business is corrupt.
Hmm, I feel duty bound to say that I think social services safeguarding teams have a very important function. It's just that I think the principles of safeguarding are insufficiently well connected to human rights principles, and the safeguards on safeguarding are extremely weak. I do not regard this as the fault of social services, who have been acting in a virtual policy vacuum for many years now. It is the fault of successive ministers who have neglected this important area, and refused to tackled the complexity of these issues and provide clear guidance and accessible, effective and fair dispute resolution procedures.
ReplyDeleteYou place to much emphasis on ministers. The professions like law, medicine etc. have a developed a large body of evidence / specific knowledge base that underpins the work they do. This is not at all true of social work / sciences where the numbers researched are small, the theories questionable and the judgements based largely on an individuals views, values and prejudices. I have never met an objective social worker/ social services personnel. They operate on 'gut feelings'; hardly robust evidence.
ReplyDeleteSafeguarding teams are not scientific in approach and operate as kangeroo courts to determine guilt- even when someone is innocent. Ministers are as lacking in good judgement or intellect in our modern times- they mirror those they give power to.
But... they are only able to operate on 'gut feelings' and insufficiently robust evidence because the law (which is prescribed by Parliament, and hence Ministers) hasn't required them to. The law could crack these decisions open and scrutinise them if it wanted to - it could pry into the basis for decisions, could require reasoned evidence - but it does not. There are no formal checks and balances against safeguarding decisions, no fora where decisions are routinely tested. The Court of Protection, alarmed by the behemoth of the Mental Capacity Act, has recently invented a requirement that controversial Article 8 issues must be litigated in the Court of Protection. But it had to invent that out of Magna Carta (!!) it wasn't there in any statute or Ministerial Guidance. No Secrets just says 'capacity is key' and leaves it at that. I doubt that many safeguarding teams follow the guidance laid down in Neary v Hillingdon or A and C v A Local Authority to invoke the authority of a court for serious welfare disputes. If safeguarding teams do sometimes operate as kangaroo courts, it's because Parliament let them.
ReplyDeleteParliament also says public sector workers will have negligible pay rises to reduce the deficit, social workers and other local authority staff do not just keep quiet and accept this- because it is their lives being affected. So they strike. If social services directors / workers had been concerned that they were acting like kangeroo courts and causing potential harm they could have put pressure on government to clarify how they might undertake safeguarding work so as not to trap innocent people.
ReplyDeleteInstead all that I have seen is that 'expertise' for safeguarding has suddenly sprung up from no where with social workers saying they are skilled to undertake this, as a bid to raise the profile of adult social work.
The blind leading the blind....