tag:blogger.com,1999:blog-7327718065135964598.post6862088819499568558..comments2023-08-10T15:02:51.259+01:00Comments on The Small Places: MH v UK: Implications for the deprivation of liberty safeguardsLucy Serieshttp://www.blogger.com/profile/07820866715125284389noreply@blogger.comBlogger7125tag:blogger.com,1999:blog-7327718065135964598.post-58826280193058075382014-02-25T16:31:47.689+00:002014-02-25T16:31:47.689+00:00Hi Steve, we should form a Marmite club! Yes, MH ...Hi Steve, we should form a Marmite club! Yes, MH v UK is a real Marmite issue isn't it? I don't blame DOLS leads and legal teams for seeing a DOLS challenge as costly and a lot of work. It can be, and it shouldn't have to be this way. But the appeal mechanism is as it is and MH v UK clearly does require people to facilitate rights of challenge, whether or not the detaining authorities like it! The key problem is that at the moment, the appeal mechanism is far too contingent on the discretion of the detaining authorities (a clear contravention of Art 5(4)) and IMCAs (a clear contravention of Art 5(4) and s39D(8) MCA). I hate to say it, but I think it may take another case like Neary to shake them out of their apathy, and it may require listing an IMCA as a respondent too explain themselves if they haven't helped a person to exercise their rights of appeal.Lucy Serieshttps://www.blogger.com/profile/07820866715125284389noreply@blogger.comtag:blogger.com,1999:blog-7327718065135964598.post-71203641890479123722014-02-25T16:26:16.393+00:002014-02-25T16:26:16.393+00:00Lucy, I ran a workshop at our recent regional BIA ...Lucy, I ran a workshop at our recent regional BIA training conference entitled 'The Right to Challenge Detention". It was heavily based on your blog above (I credited you, honest) and asked the question whether (following MH) DoLS is Article 5(4) compliant and whether we shouldn't be enabling a lot more people to access their right of appeal by appointing s39d IMCAs. <br />I am now officially Marmite! Some people loved it but some other feedback I got can best be described as vitriolic. The most critical feedback came from DoLS Lead Managers in other LAs who were not impressed at all at the idea that we should be encouraging people to exercise their Art.5(4) rights on a regular basis - they saw it as 'unneccessary' for which read 'time-consuming & expensive to no end purpose'. It seems that they believe P should only have the right to challenge when they (the managers) think it is appropriate.Steve Bensonnoreply@blogger.comtag:blogger.com,1999:blog-7327718065135964598.post-57527093863954794092014-02-06T16:52:03.489+00:002014-02-06T16:52:03.489+00:00Hi Steve, I think you're probably right on peo...Hi Steve, I think you're probably right on people thinking Art 5(4) appeals are a waste of time - but that isn't the attitude under the MHA (is it?). I just crunched the CQC's stats on Tribunals, and whilst the discharge-by-Tribunal rate for s2 is 11%, it's as low as 4% for other unrestricted patients. The discharge rate for restricted patients is much higher, at 21%. <br /><br />Interesting observation on the transparency guidance, I suspect you may be right. On ADASS, your comment prompted me to look at what they said about DOLS appeals:<br /><br />'The process of application to the Court of Protection is a huge jump from a basic decision to a High Court scrutiny.'<br />-> it's not always the high court - often a DJ<br /><br />'People who are supported by Paid Representatives are likely to be aware of their rights to challenge decisions. People with family members as representatives may not always be advised of their right to challenge decisions. This is because there is an inherent tension in the role. Often there is a tension between the views of the family member and those of relevant person. The relevant person may desire to leave a care home whilst the family member may wish them to remain there.'<br />-> then supervisory bodies should be making s39D referrals to the relevant person so that they can exercise their appeal rights<br /><br />'It would be more timely if local tribunals heard a first tier level of appeal with the right of further challenge to the Court of Appeal'<br />-> Very interesting... loads of local authorities brought this up.Lucy Serieshttps://www.blogger.com/profile/07820866715125284389noreply@blogger.comtag:blogger.com,1999:blog-7327718065135964598.post-76273329029204295982014-02-06T16:17:48.967+00:002014-02-06T16:17:48.967+00:00I think the answer to your question Lucy is threef...I think the answer to your question Lucy is threefold:<br />1. Most SWs, (even some AMHPs) and certainly most SW managers, are not philosophically signed up to the need to give large numbers of mentally incapacitated people what they see as largely theoretical rights to make challenges under DoLS and Art.8 that they believe are mostly doomed to failure. When I raise these issues in training I find that most of my colleagues don't share my zeal for compliance with Art.5(4) because they see it as a complete waste of time in most cases - eg "what's the point of anyone taking this to court; OK, she's not happy but that's because she lacks capacity and doesn't understand the situation/risks. Everyone else knows she has nowhere else to go and her family are perfectly happy with the care she's getting where she is; what's the point in wasting time and money going to court just to rubber stamp what's already happening" etc.<br /><br /> 2. When I trained as a SW back in the generic days of the 80s, most SWs did a mix of work, which included lots of time in various courts for child protection/care proceedings, juvenile justice, wardships, adoptions and MH tribunals. Nowadays most SWs in Adult teams never set foot in court from one year to the next and many have never done so. We have a whole generation of SWs that are freaked by the idea of giving evidence in court and that will only get worse when Munby's transparence changes for CoP kick in and professionals can be named and shamed in the papers. So they are certainly not motivated to push for easier access to legal challenges.<br /><br />3. I really don't think that bodies like ADASS are going to push hard for measures that will make access to legal review of detention a regular reality for most people subject to DoLS. Do senior managers/directors actually want large numbers of their staff bottled up writing court reports and attending local tribunals/court hearings when they already can't allocate a lot of the bread & butter assessment work for people needing care packages in their own homes; I think not. So having a set of procedures that gives the illusion of meeting people's Art.5(4) rights but actually very rarely results in P exercising them (for obvious reasons) suits them just fine. Cynical, moi?<br /><br />I did a session with EDT AMHPs yesterday on MHA/DoLS interface and the need to use the MHA to give rights to people that lack capacity and are effectively de facto detained but officially informal. Many of them couldn't get their heads around the 'low bar for objection' per GJ and (if the objection was low level and relatively easy to contain) they continued to see use of the MHA as a last resort. Many of them saw regular 'persuasion' of incapacitated people to stay on the ward as a preferable, less restrictive, option than sectioning them! There's a long way to go.Steve Bensonnoreply@blogger.comtag:blogger.com,1999:blog-7327718065135964598.post-77584344449860207092014-01-10T09:52:36.878+00:002014-01-10T09:52:36.878+00:00I agree with Steve Benson's concludding point ...I agree with Steve Benson's concludding point - we need a cheap local legal process - I think it is now becoming apparent that the MCA / COP is far too cumbersome. The MH legislation has evolved over a much longer period and the existence of the Tribunal [and the independent regulatory body MHAC/CQC] provides this fairly effectively, is accessible [except in the case discussed here - which begs some answers] and at a reasonable cost for the mentally ill. Lets work to develop something similar for people who lack capacity.TeeBeehttps://www.blogger.com/profile/15565174597375023594noreply@blogger.comtag:blogger.com,1999:blog-7327718065135964598.post-31199314299729809482013-11-18T17:10:16.043+00:002013-11-18T17:10:16.043+00:00Hi Steve,
I agree that the SB's are in a rea...Hi Steve, <br /><br />I agree that the SB's are in a really impossible position here. The law requires that they take many more cases to the COP, but the resource for doing so simply isn't there. What I find difficult to understand is why the bodies representing practitioners and local authorities aren't making a huge song and dance about this. Why aren't ADASS, and BASW, and the College of Social Work and the Local Government Association kicking up a big stink about the DoLS? The government aren't going to do anything about it otherwise...<br /><br />Hopefully their evidence to the House of Lords will reflect this problem in their report, and the government might consider how to set up and finance a more affordable remedy.<br /><br />LLucy Serieshttps://www.blogger.com/profile/07820866715125284389noreply@blogger.comtag:blogger.com,1999:blog-7327718065135964598.post-45783073483080505622013-11-18T16:58:39.257+00:002013-11-18T16:58:39.257+00:00But which supervisory body/local authority is goin...But which supervisory body/local authority is going to be public spirited enough to spend taxpayer's money on a case that there is no pressure on them to pursue and which could result in them having to spend large amounts of their staff time and limited budgets on many more future cases? I just don't see it happening. As with Article 8, where the strictures of Judge Jackson in Neary are being systematically ignored, the view of most LAs is that 'if we referred every disputed case to the CoP our social workers would be doing nothing else and we would be bankrupt in no time flat. Without a cheap, local legal process I can't see any effective remedy any time soon.<br />Steve BensonAnonymoushttps://www.blogger.com/profile/06997468051276297697noreply@blogger.com