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.