tag:blogger.com,1999:blog-7327718065135964598.post5769801917972128199..comments2023-08-10T15:02:51.259+01:00Comments on The Small Places: Could arbitration be used for dispute resolution under the Mental Capacity Act and DoLS?Lucy Serieshttp://www.blogger.com/profile/07820866715125284389noreply@blogger.comBlogger3125tag:blogger.com,1999:blog-7327718065135964598.post-49216275703800878172012-02-22T15:02:03.503+00:002012-02-22T15:02:03.503+00:00In this very well researched and thorough analysis...In this very well researched and thorough analysis of the issues concerning Deprivation of Liberty Safeguards Lucy Series raises a number of questions. We will deal with these briefly.<br /><br />Arbitration can generally be undertaken by any two or more parties to decide any question that might be put to a civil court or tribunal to be decided between those parties. It cannot bind third parties, indeed as one would expect, and it cannot deal with non-civil matters, e.g., issues only a criminal court can decide. It cannot be used in public law functions, e.g., to decide whether a planning consent should be issued, though it can deal with whether that decision was properly arrived at, as one would through judicial review.<br /><br />The concept of arbitration is that it is a process the parties agree to instead of going to court. Once they have agreed this, the court is precluded from deciding the issues. The fact that an individual has the right to go to court is the starting point from which the parties depart by agreeing they will instead refer the matter to arbitration. <br /><br />In DoLS questions under the Mental Capacity Act, the issue is whether the individual’s representative has authority to make a decision or enter into arrangements on behalf of that individual. If the representative has that authority, which can be obtained under the MCA, then that is enough. All parties are then bound. We are currently dealing with a similar case concerning consent on behalf of parties represented by their parents, though not a DoLS matter and one of the question that arises is whether they have obtained authority.<br /><br />We accordingly see no reason why the issue between local authority and individual should not be dealt with in this way.<br /><br />Our process is different from conventional arbitration, indeed we do not call it arbitration, thought it takes its authority from the Arbitration Act. Its key is that it is non-adversarial. It is fully inquisitorial, as the assessor deals with the parties direct. It is the assessor’s role to investigate and decide the issues him/herself and not to hear argument or evidence, so levelling the playing field. The parties do not need lawyers as they would in an adversarial process as the assessor’s duty is to safeguard the interests of both parties by fully investigating and ensuring the correct legal analysis and outcome. Indeed we consider there is less equality of arms in the courts or arbitration, as there all depends on the relative resources of the parties and the skills of their representatives. Here there is true equality as the assessor is working for both parties to get them the correct result. Of course, it is an onerous role and requires specialist knowledge and considerable expertise, and it is Centre for Justice’s function to provide this.<br /><br />There is a cost but to date this is less than 10% of the cost of going to court. Our process includes mediation which is covered by legal aid and we are looking into securing legal aid for the arbitration. We do offer means weighting for cases where the local authority agree this. As the savings to them are enormous, they are often happy to do so, so cost should not normally be a restriction on the use of the service.<br /><br />In most of these cases speed is of the essence and our process delivers an outcome in a fraction of the time of cases involving the courts and judicial review. As we encourage the parties to mediate within the process, they are also able to agree and ‘own’ the outcome, which is far more satisfactory and allows relationships to be maintained and repaired. It also delivers even quicker results.<br /><br />In brief, so long as the representative of the individual has obtained authority to represent him/her, the representative can bind the individual and the local authority. This is an alternative, and a binding alternative, to going to court, on all the issues, and an effective and far preferable one. <br /><br />Anthony HurndallCentre for Justicehttp://www.centreforjustice.orgnoreply@blogger.comtag:blogger.com,1999:blog-7327718065135964598.post-8745474078248677852012-02-22T14:43:17.340+00:002012-02-22T14:43:17.340+00:00I think there are potentially new forms of ADR tha...I think there are potentially new forms of ADR that could be developed to address cases involving incapacity. I wonder if advocacy/mediation hybrids have ever been trialled? I think the flexibility, locality, and informality of ADR could be a real bonus. However, it strikes me that arbitration, being binding, may fall into serious *legal* difficulties around Article 6 and Article 5, because it cannot obviously surmount the issues around consent to be bound by the result (whereas, consent is not an issue for the courts).Lucy Serieshttps://www.blogger.com/profile/07820866715125284389noreply@blogger.comtag:blogger.com,1999:blog-7327718065135964598.post-67398449713438728632012-02-22T14:02:24.873+00:002012-02-22T14:02:24.873+00:00Arbitration is probably too formal but other forms...Arbitration is probably too formal but other forms of adr may be useful and may well be able to facilitate the involvement of P. If the parties to a facilitated settlement included the LA, P and carers/guardians/other relevant persons, it could be a superb opportunity to allow P to put forward a point of view, perhaps limited to aspects of the package, perhaps limited to expressing a preference, but certainly in a more relaxed setting than Court.cjr1968noreply@blogger.com